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Chubb v. Sullivan

Court of Appeals of Kansas

June 20, 2014

MICHAEL R. CHUBB, Appellant,

As Amended July 1, 2014.

Page 424

[Copyrighted Material Omitted]

Page 425

Appeal from Pawnee District Court; BRUCE T. GATTERMAN, judge.



1. Because of their dangerousness and the need to protect society, sexually violent predators are different in terms of treatment and risk and may be subjected to different confinement conditions than other civilly committed individuals.

2. Rights afforded prisoners set a floor for the rights that must be afforded sexually violent predators. It is not always clear how much more expansive the rights of civilly committed dangerous persons are from those that are criminally detained. But a secure facility, whether it houses prisoners or dangerous civilly committed patients, has a legitimate interest in maintaining institutional security and preserving internal order and discipline, which may require limitation or retraction of the residents' retained constitutional rights.

3. A proceeding under K.S.A. 60-1501 must allege shocking and intolerable conduct or continuing mistreatment of a constitutional stature.

4. The first determination a court must make when reviewing a procedural due process claim is whether a protected liberty or property interest is involved. It is only when a court finds a protected interest is implicated that it must then determine the nature and extent of the process that is due.

5. Personal or individual liberty is generally defined as one's freedom to do as one pleases, limited only by the government's right to regulate the public health, safety, and welfare.

6. Protected liberty interests arise from two sources: (1) the Due Process Clause of the Fourteenth Amendment to the United States Constitution and (2) the laws of the states.

7. Although states may, under certain circumstances, create liberty interests that are protected by the Due Process Clause, these interests are limited to freedom from restraint which imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

8. K.S.A. 2013 Supp. 59-29a22(b)(20) which provides that each patient in the Sexual Predator Treatment Program shall " be permitted to see a reasonable number of visitors who do not pose a threat to the security or therapeutic climate of other patients or the facility" does not create a constitutional liberty interest in visitation.

9. The right of civilly confined sexually violent predators to unfettered visitation is not guaranteed by the Due Process Clause of the Fourteenth Amendment.

10. Substantive due process claims involve a narrow range of fundamental interests such as the right to bear children, the right to marry, and other rights closely tied to the Bill of Rights in the United States Constitution.

11. Substantive due process protects an individual from arbitrary government action that either furthers no legitimate governmental interest or is so outrageous that it shocks the conscience.

12. A property right is the right to possess, use, and enjoy a determinate thing or the right to ownership. But whether tangible or intangible, a property right sufficient to implicate the Due Process Clause of the Fourteenth Amendment must have some ascertainable monetary value.

13. The three-vendor policy adopted by the Kansas Department for Aging and Disability Services (KDADS) for the Sexual Predator Treatment Program does not implicate a fundamental constitutional right or any constitutionally protected liberty or property interest.

14. The three-vendor policy adopted by the KDADS for the Sexual Predator Treatment Program is rationally related to a legitimate government interest of preventing contraband from entering the facility.

15. A 6- to 8-month delay in the grievance procedure established under K.S.A. 2013 Supp. 59-29a22(c) caused by a systemic problem related to the inability to properly track multiple grievances, which has since been corrected, does not rise to the level of shocking and intolerable conduct or continuing mistreatment of a constitutional stature.

16. Whether a document is an affidavit depends upon whether the affiant swore to the contents of the document.

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.

Kimberly M.J. Lynch, senior litigation counsel, Corrine E. Johnson, litigation counsel, Kansas Department for Aging and Disability Services, for appellees.



Page 426

Arnold-Burger, J.

Michael Chubb is an involuntary patient in the Kansas Sexual Predator Treatment Program at Larned State Hospital. On appeal he contends that the district court erred in summarily dismissing his petition filed under K.S.A. 60-1501. Chubb alleges four errors on appeal. First, he contends that his liberty interests were infringed when his brother was restricted from visiting Chubb at the facility. We find that Chubb has no liberty interest in a visit from his brother and even if he did his due process rights were not violated; thus, this claim fails.

Next, he asserts that his liberty interest in receiving mail was unconstitutionally restricted without due process when the hospital instituted a policy restricting purchases of consumable items to three vendors. But we find that the three-vendor policy does not

Page 427

implicate a constitutional right and even if it did the policy is reasonably related to a legitimate government purpose; thus, this claim also fails.

Third, Chubb argues that the grievance process was unacceptable and the inherent delays resulted in a systemic violation of due process. Because Chubb fails to allege or establish shocking and intolerable conduct or continuing mistreatment of a constitutional stature, which is necessary to maintain a claim under K.S.A. 60-1501, his claim fails.

And finally, Chubb alleges that the affidavits submitted by the Kansas Department for Aging and Disability Services (KDADS) were invalid and were improperly considered by the district court. Because we find the affidavits meet all necessary requirements, we reject Chubb's claim.

Accordingly, the decision of the district court summarily dismissing Chubb's petition under K.S.A. 60-1501 is affirmed.

Factual and Procedural History

Chubb, a patient within the Kansas Sexual Predator Treatment Program at Larned State Hospital, wanted to receive a visit from his brother. His brother filed the required visitation application with the hospital on June 14, 2011. In the application, it was indicated that the brother had been convicted of a " CSC 2nd" offense. When asked what " CSC 2nd" meant, Chubb indicated his brother had been convicted of criminal sexual conduct second degree. See Mich. Comp. Laws § 750.520c(2). On July 8, 2011, Chubb was informed that his brother's application was denied until his brother provided documentation that he completed some form of sexual offense treatment.

In addition, on September 13, 2011, a memo was posted within the facility informing the residents that they could, from that point forward, only purchase their consumable goods from three particular vendors, which meant that they could no longer receive consumable goods from family or other vendors. This was a blanket policy applicable to all patients.

Finally, at the time Chubb filed his K.S.A. 60-1501 petition, he had 15 grievance issues yet to be resolved within the hospital's grievance process. He claimed that they were 6 to 8 months old.

On October 7, 2011, Chubb filed a K.S.A. 60-1501 petition alleging (1) that his brother was denied access to the facility and was unable to visit Chubb, which denied Chubb his right under K.S.A. 2013 Supp. 59-29a22(b)(20) to visit his brother, without any due process; (2) that his right to receive items in the mail under K.S.A. 2013 Supp. 59-29a22(b)(15)(B)(iii), was restricted without due process, which led to (3) the violation of his right to use his personal possessions for their intended purpose; and (4) that his right to petition for the redress of grievances against the government, which could occur under K.S.A. 2013 Supp. 59-29a22, had been violated.

The district court summarily dismissed Chubb's petition, finding that Chubb's claims did not establish that the KDADS acted with deliberate indifference or shocking conduct. In addition, his claims were not of a constitutional stature and were statutory in nature. As such, a K.S.A. 60-1501 petition was not the appropriate vehicle to assert Chubb's claims. Even if Chubb's claims did rise to a constitutional stature, the statute restricting visitation did not specifically limit the KDADS's discretion when restricting certain visitors, and Chubb received sufficient due process when he received notice that his brother would not be able to visit and had an opportunity to be heard through his individual therapist or the treatment team. With regard to the denial of Chubb's right to receive items in the mail, the district court found that his right was not denied, but merely restricted, and the restriction only related to whom he could receive mail from; it did not restrict the content of the mail. Moreover, the posted notice was sufficient for due process because the change in policy was a blanket change that applied to all patients. The district court found Chubb's grievance issue to be moot because nearly all of his grievances had been addressed during the litigation of his K.S.A. 60-1501 petition.

Chubb filed a timely notice of appeal.

Page 428

Standard of Review

Kansas appellate courts have long held that in order to state a claim for relief under K.S.A. 60-1501, a petition must allege " shocking and intolerable conduct or continuing mistreatment of a constitutional stature." Johnson v. State, 289 Kan. 642, 648, 215 P.3d 575 (2009); see also Bankes v. Simmons, 265 Kan. 341, 349, 963 P.2d 412, cert. denied 525 U.S. 1060, 119 S.Ct. 629, 142 L.Ed.2d 567 (1998). " A [K.S.A.] 60-1501 proceeding must include allegations of a constitutional dimension. If an inmate does not assert deprivation of a constitutional right, a district court should grant the State's request for summary dismissal. [Citation omitted.]" Ramirez v. State, 23 Kan.App.2d 445, 448, 931 P.2d 1265, rev. denied 262 Kan. 962 (1997); see also Anderson v. McKune, 23 Kan.App.2d 803, 806-07, 937 P.2d 16 (" An inmate's claim under K.S.A. 60-1501 must assert the deprivation of a constitutional right or the court is without jurisdiction to consider the claim. In the absence of such a claim, the petition should be ...

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