FROM FAYETTE CIRCUIT COURT HONORABLE THOMAS L. CLARK, JUDGE
ACTION NO. 15-CI-01947
FOR APPELLANT: Christopher Lee, Pro Se Sandy Hook, Kentucky
FOR APPELLEE: Angela T. Dunham Justice & Public Safety
Cabinet Frankfort, Kentucky
BEFORE: KRAMER, CHIEF JUDGE; ACREE AND D. LAMBERT, JUDGES.
OPINION REVERSING AND REMANDING
Lee appeals pro se from the Fayette Circuit
Court's August 27, 2015 Order dismissing his petition for
a declaration of rights. We must decide if the circuit court
abused its discretion when it found Lee had failed to exhaust
his administrative remedies. We reverse and remand for
additional proceedings consistent with this Opinion.
an inmate at the Blackburn Correctional Complex. While there,
Officer Michael Ammons and Sergeant Marcus Christison
conducted a standard area search of Lee and another inmate.
The officers found a pair of white shoes containing "a
small baggie and [four] rolled up pieces of paper containing
a green leafy substance" under Lee's bed. Both
inmates denied owning the shoes. According to Officer
Ammons's written incident report, the "green leafy
substance [was] identified by the NARK2 test as SPICE[,
" a substance classified as
dangerous contraband by the prison. (R. 19). No test results
were made part of the administrative or judicial record. A
brief investigation was conducted, during which Officer
Ammons and Sergeant Christison both confirmed that the
written incident report was true and accurately depicted the
incident and their findings.
officials charged Lee with two violations: (1) possession or
promoting of dangerous contraband; and (2) smuggling of
contraband items into, out of, or within the institution.
CPP 15.2(II)(C)(VI)(3), (IV)(5). A
prison disciplinary hearing was held on April 6, 2015. Lee
testified in his defense. He denied ownership of the spice and the
shoes, and denied knowing why the shoes were under his bed.
The adjustment officer, relying on the incident report and
statements by Officer Ammons and Sergeant Christison, found
Lee guilty of both charges. Lee forfeited 260 days good-time
credit and was sentenced to ninety days of disciplinary
segregation, suspended for 180 days.
result of the disciplinary action, Lee was transferred from
Blackburn to the Little Sandy Correctional Complex, a
medium-security facility. There, Lee, with the assistance of
an inmate legal aid, prepared his appeal to the Blackburn
Warden. Lee dated the appeal April
13, 2015, and at some point placed it in the mail. The
Warden's office received Lee's appeal on April 22,
2015. The Warden subsequently notified Lee by letter that his
appeal would not be considered because it was not received on
or before April 21, 2015, fifteen days from the hearing date
as required by CPP 15.6(II)(F)(3).
then filed a petition for declaration of rights in Fayette
Circuit Court. He challenged the result of the prison
disciplinary hearing, claiming his Fourteenth Amendment due
process rights were violated because: (1) there was
insufficient evidence to support his conviction because: (a)
the test result concerning the spice was unreliable, and (b)
the shoes were found in a common area; and (2) the charges
were impermissibly "stacked." Lee also stated in
his declarations petition he placed his appeal to the Warden
in the mail on April 14, 2015, a full week before it was due
on April 21, 2015. In support, Lee attached to his petition:
(1) an inmate money transfer order presumably for postage
dated April 13, 2015; (2) an affidavit from the inmate legal
aid averring Lee signed, dated, and put his appeal into an
envelope appropriately addressed to the Warden on April 13,
2015, and that it was his understanding Lee mailed the appeal
the next day; and (3) his own affidavit averring he prepared
and signed the appeal on April 13, 2015 and placed the
appeal, with sufficient first-class postage, in the prison
mailbox on April 14, 2015.
circuit court denied Lee's petition, finding Lee had
failed to exhaust his administrative remedies as required by
KRS 454.415. This appeal followed.
disciplinary proceedings are administrative, rather than
criminal, in nature. While inmates retain rights under the
Due Process Clause of the United States and Kentucky
Constitutions, a defendant in a prison disciplinary
proceeding is not entitled to "the full panoply of
rights due a defendant" in a criminal proceeding.
See Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct.
2963, 2975, 41 L.Ed.2d 935 (1974); Smith v.
O'Dea, 939 S.W.2d 353, 357-58 (Ky. App. 1997). In
general, the minimal due process requirements in a prison
disciplinary hearing include: (1) advance written notice of
the claimed violation; (2) an opportunity to call witnesses
and present a defense "when permitting him to do so will
not be unduly hazardous to institutional safety or
correctional goals"; and (3) a written statement by the
fact finder detailing the evidence relied on and the reasons
for the disciplinary action. Wolff, 418 U.S. at
563-67, 94 S.Ct. at 2978-80; Webb v. Sharp, 223
S.W.3d 113, 117-18 (Ky. 2007). Further speaking generally,