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Peterson v. Schnurr

Court of Appeals of Kansas

July 19, 2019

Cedric Peterson, Appellant,
v.
Dan Schnurr, Appellee.

         SYLLABUS BY THE COURT

         1. Under K.A.R. 44-15-101a(d)(2), inmates may not use the grievance procedure to challenge the censorship of publications.

         2. Because the grievance procedure is not an available administrative remedy for an inmate challenging the censorship of a publication, filing a grievance does not toll the time to file a K.S.A. 60-1501 petition.

          Appeal from Reno District Court; Joseph L. McCarville III, judge.

          Shannon S. Crane, of Hutchinson, for appellant.

          Jon D. Graves, legal counsel, Kansas Department of Corrections, for appellee.

          Before Buser, P.J., Pierron and Bruns, JJ.

          PIERRON, J.

         Cedric Peterson is an inmate at Hutchinson Correctional Facility (HCF). HCF withheld several editions of a newspaper he had subscribed to, and he appealed the seizure of two of the seized editions. The Secretary of Corrections' designee affirmed the seizures. Peterson later filed a K.S.A. 2017 Supp. 60-1501 challenging the seizures. The district court summarily dismissed the petition because it was not timely filed. Peterson appeals. Finding no error, we affirm.

         FACTS

         In 2017, the publication review officer at HCF withheld the May through November editions of a newspaper Peterson had subscribed to. The newspaper's content was found to pose a threat to the safety and security of the facility under K.A.R. 44-12-601 (2017 Supp.). Peterson appealed the seizure of the June edition, and the Secretary's designee affirmed the review officer's decision on July 31, 2017. Peterson also appealed the seizure of the October edition, and the Secretary's designee again affirmed the review officer's decision on December 6, 2017. He did not appeal the seizures of the other editions.

         Peterson then filed an inmate grievance on December 12, 2017. He complained about "the practices of the HCF mailroom" and claimed "the practice and policy to censor this newspaper is explicitly raced-based." The grievance was denied, stating that under Internal Management Policies and Procedures (IMPP) 12-134, all incoming mail would be reviewed and someone would determine whether to allow it into the facility. Peterson forwarded the grievance to the warden. On December 18, 2017, the warden responded that K.A.R. 44-15-101a(d)(2) does not permit inmates to use the grievance procedure in place of, or as part of, the procedure for censoring publications.

         Peterson then filed a K.S.A. 2017 Supp. 60-1501 petition in the district court on January 16, 2018. He argued the Kansas Department of Corrections (KDOC) was not properly applying K.A.R. 44-12-601 (2017 Supp.), and its policies for the censorship of mail violated his First Amendment right to receive mail. The court summarily denied his petition. The court found Peterson had exhausted his administrative remedies for the seizures of the June and October editions, and his K.S.A. 2017 ...


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