Dennis Shepherd appeals the dismissal of his habeas corpus
petition for failure to state a claim upon which relief can be
granted. We reverse and remand for further hearing.
While Shepherd was an inmate incarcerated at Hutchinson
Correctional Work facility (HCWF), there was a search of the
inmates' living quarters. When Shepherd's closet was searched, a
key assigned to the closet of another inmate, Billy Jones, was
found. Upon a search of Jones' closet, the guards found five
gallons of homemade alcohol and an amount of sugar.
Shepherd was charged with violations of K.A.R. 44-12-201,
possession of unauthorized and unregistered personal property,
and K.A.R. 44-12-1101, conspiracy to violate another rule,
specifically K.A.R. 44-12-901, possession of dangerous
contraband. He entered a plea of not guilty. Shepherd requested
that two inmates, Billy Jones and Terry Garrison, be allowed to
testify in his behalf. An administrative hearing was held and
was allowed to testify for Shepherd. Shepherd was not given any
reason why Jones was not allowed to testify.
Shepherd was found guilty of both charges and sentenced to
seven days' disciplinary segregation on each offense, for a total
of fourteen days of segregation. He was also transferred from
HCWF, a medium security facility, to Kansas State Industrial
Reformatory (KSIR), a maximum security facility, and received a
deduction in pay status and classification custody level.
After exhausting administrative remedies, Shepherd filed his
petition alleging (1) that his due process rights were violated
because of the hearing board's refusal to allow an essential
witness at his hearing; (2) that his conviction is not supported
by the evidence; and (3) that he was not provided with a
sufficient statement of the evidence and reasoning relied on by
the hearing board.
A petition may be dismissed under K.S.A. 60-212(b)(6) for
failure to state a claim when it appears "beyond doubt"
petitioner can prove no set of facts which would entitle him to
relief. Jones v. Marquez, 526 F. Supp. 871, 874 (D. Kan. 1981).
See Keith v. Schiefen-Stockham Insurance Agency, Inc.,
209 Kan. 537, 540, 498 P.2d 265 (1972). All allegations in the petition
must be taken as true and "`[t]he question for determination is
whether in the light most favorable to plaintiff, and with every
doubt resolved in plaintiff's favor, the petition states any
valid claim for relief.'" Keith, 209 Kan. at 540.
Habeas corpus is an appropriate remedy where an inmate attacks
the conditions of his confinement, and his treatment by the
institution clearly infringes upon his constitutional rights, yet
relief via K.S.A. 60-1507 would be inadequate. See In re Habeas
Corpus Application of Gilchrist, 238 Kan. 202, 205, 708 P.2d 977
(1985); Levier v. State, 209 Kan. 442, 449-50, 497 P.2d 265
(1972); K.S.A. 60-1507(e).
Shepherd alleges his constitutional due process liberty
interests under the Fourteenth Amendment were violated by actions
of prison authorities in his disciplinary proceedings. "Liberty
interests protected by the Fourteenth Amendment may arise from
two sources the Due Process Clause itself and the laws of the
States." Hewitt v. Helms, 459 U.S. 460, 466, 74 L.Ed.2d 675,
103 S.Ct. 864 (1983). The due process clause itself does not
grant a prisoner the right to be free from segregation. See
Hewitt, 459 U.S. at 468. The State can, however, create a
liberty interest protected through the due process clause by its
enactment of certain statutory or regulatory measures. Hewitt,
459 U.S. at 469.
Shepherd does not specify the source of his claimed liberty
interest, but the provisions of the Kansas Administrative
Regulations, Articles 12 and 13, create a state law liberty
interest in disciplinary proceedings where, as here, disciplinary
segregation is imposed as a punishment. The Kansas regulations
make it clear that disciplinary confinement may not occur absent
specified substantive predicates. See Hewitt, 459 U.S. at 472.
In Wolff v. McDonnell, 418 U.S. 539, 41 L.Ed.2d 935, 94 S.Ct.
2963 (1974), the United States Supreme Court held that due
process imposes certain minimal procedural requirements which
must be met in a prison disciplinary hearing when the State has,
by statute or regulation, ...