BY THE COURT
K.S.A. 60-1501 proceeding is summary in nature and is not
subject to the ordinary rules of civil procedure.
statutes authorizing a K.S.A. 60-1501 proceeding and
prescribing the procedure for its disposition do not
specifically provide for a manner of discovery.
3. In a
K.S.A. 60-1501 proceeding, discovery is almost never
appropriate and is subject to the broad discretion of the
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.
on the face of a K.S.A. 60-1501 petition, it can be
established that the petitioner is not entitled to relief, or
if, from undisputed facts, or from incontrovertible facts,
such as those recited in a court record, it appears, as a
matter of law, that no cause for granting a writ exists, then
summary dismissal is proper.
from Leavenworth District Court; GUNNAR A. SUNDBY, judge.
White, appellant pro se.
Price, special assistant attorney general, of Lansing
Correctional Facility, for appellees.
Pierron, P. J., Hill, J., and Walker, S.J.
August 17, 2015, Alan White, an inmate at Lansing
Correctional Facility (Lansing), received a notice that the
Kansas Department of Corrections (KDOC) had rejected his
August 22, 2015, issue of World magazine because the contents
posed a threat to the safety and security of correctional
facilities in violation of K.A.R. 44-12-601. The notice
specified the objectionable material was on pages 7 and 24,
but it did not provide any explanation for why the material
was a violation. On August 20, 2015, White received a notice
that KDOC had rejected his September 2015 issue of NASCAR
Illustrated because the magazine posed a threat to the safety
and security of correctional facilities in violation of
K.A.R. 44-12-601. The notice specified the objectionable
material included maps. On September 16, 2015, White received
a notice that KDOC had rejected the book Makeup to Breakup by
Peter Criss because parts of the book met the criteria for
sexually explicit material pursuant to K.A.R. 44-12-313.
appealed the censorship of all three publications. KDOC
upheld each censorship. White filed a petition pursuant to
K.S.A. 60-1501. He argued that KDOC violated his rights under
the First Amendment to the United States Constitution because
the censored material did not meet the criteria for
censorship under the K.A.R. 44-12-313 or K.A.R. 44-12-601. He
also argued the censorship regulations were vague and
overbroad and allowed for subjective enforcement in violation
of his due process rights under the Fourteenth Amendment to
the United States Constitution. The district court issued the
writ and scheduled an evidentiary hearing for February 11,
the evidentiary hearing, KDOC filed a motion to dismiss,
arguing White had failed to state a valid claim. The motion
stated KDOC had overturned the censorship of the August 22,
2015, issue of World magazine in another appeal, therefore,
that issue was moot. KDOC explained it rejected the September
2015 issue of NASCAR Illustrated because it contained maps of
the Chicago area, and maps could aid an inmate in escaping
and avoiding capture. It argued that McCormick v.
Werholtz, No. 07-2605-EFM, 2009 WL 5210845 (D. Kan.
2009) (unpublished opinion), the United States District Court
for the District of Kansas had upheld the censorship of a
book with similar content. KDOC argued the reasons justifying
the censorship McCormick applied in the present
case. Finally, KDOC stated it censored Makeup to Breakup
because the book contained "explicit descriptions of
sexual acts including those with a minor." It argued the
Kansas Court of Appeals upheld the censorship of sexually
explicit materials in Washington v. Werholtz, 40
Kan.App.2d 860, 197 P.3d 843 (2008), rev. denied 289
Kan. 1286 (2009), and the censorship of White's book was
appropriate for the same reasons.
weeks after its motion to dismiss, KDOC filed a motion to
stay discovery. KDOC stated White had served it with
interrogatories and a request for production of documents and
things. KDOC requested the district court stay discovery
until it ruled on its motion to dismiss.
hearing on February 11, 2016, the district court heard
arguments from both parties regarding KDOC's motion to
dismiss. The court denied the motion and asked if White would
like to testify regarding the matter. White asked for a
continuance to complete discovery in the case. The court
believed that the full extent of discovery was not available
in habeas proceedings but asked for KDOC's opinion on the
issue. KDOC argued that there was no information relevant to
the issues in this case which it could provide to White. KDOC
stated it could provide the censored materials to the court
to review, but it would not give those materials to White.
Additionally, it argued White's requested information
raised security concerns. The court ruled discovery was not
appropriate in the present case but continued the evidentiary
hearing to give White time to prepare.
February 29, 2016, White filed a motion to alter or amendment
judgment. He argued the rules of discovery as provided for in
the Kansas Code of Civil Procedure applied to K.S.A. 60-1501
petitions. He requested the district court reverse its prior
ruling and enter an order compelling KDOC to comply with his
prior discovery requests. White also filed the discovery
requests he served on KDOC.
March 3, 2016, the district court issued an order in response
to White's motion to alter or amend judgment. The court
stated it believed it denied White's request for
discovery at the February 11 hearing, but the docket notes
did not reflect the ruling. It also stated, "The court
will take up the motion on March 17, 2016. If granted, the
evidentiary hearing ...