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White v. Bill Shipman

Court of Appeals of Kansas

April 28, 2017

Alan White, Appellant,
v.
Bill Shipman, Deputy Warden, et al., Appellees.

         SYLLABUS BY THE COURT

         1. A K.S.A. 60-1501 proceeding is summary in nature and is not subject to the ordinary rules of civil procedure.

         2. The 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 district court.

         4. 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.

         5. If 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.

         Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Affirmed.

          Alan White, appellant pro se.

          Sherri Price, special assistant attorney general, of Lansing Correctional Facility, for appellees.

          Before Pierron, P. J., Hill, J., and Walker, S.J.

          PIERRON, J.

         On 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.

         White 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, 2016.

         Before 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.

         Several 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.

         At the 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.

         On 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.

         On 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 ...


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