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SHEPHERD v. DAVIES

April 13, 1990.

DENNIS M. SHEPHERD, Appellant,
v.
STEVEN DAVIES, et al., Appellees.



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 only Garrison

[14 Kan. App. 2d 335]

      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.

  Standard of Review

  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,

[14 Kan. App. 2d 336]

      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, ...


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