RENDERED: JANUARY 8, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-1640-MR
ANTHONY DAVIDSON APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT v. HONORABLE PHILLIP J. SHEPHERD, JUDGE ACTION NO. 19-CI-00566
JONATHAN GRATE APPELLEE
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: LAMBERT, MCNEILL, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Anthony Davidson, pro se, brings this appeal from an
October 3, 2019, Order and an October 24, 2019, Opinion and Order of the
Franklin Circuit Court dismissing his petition for declaration of rights. We affirm
in part, reverse in part, and remand.
On February 10, 2019, Davidson, an inmate at Northpoint Training
Center, was involved in a physical altercation with another inmate. According to the disciplinary report filed by Officer Benjamin Zdrojowy, a physical altercation
occurred between Davidson and inmate Paul McQueen. Davidson claimed that
McQueen, who was assigned to a separate living area, traveled to Davidson’s dorm
and assaulted him. When Officer Zdrojowy arrived, he witnessed McQueen step
out of Davidson’s dorm and say, “Come on out here, don’t back down now.”
Record on Appeal at 23. Davidson stepped out and replied, “You know you can
never walk this [d]orm again.” Record on Appeal at 23. Davidson’s nose was
bleeding and there was blood and clothing scattered around the area. As Officer
Zdrojowy began to handcuff McQueen, Davidson began to advance toward them.
Officer Zdrojowy told Davidson twice to step back. Another officer arrived on the
scene and removed Davidson.
Davidson was subsequently charged with physical action/force against
another inmate. A disciplinary hearing was conducted on March 15, 2019.
Davidson was present at the hearing and pleaded not guilty to the charges.
Davidson claimed he was assaulted by McQueen and acted in self-defense.
Following the hearing, Davidson was found guilty as charged and assessed five
days disciplinary segregation. On March 27, 2019, Davidson appealed the
decision of the adjustment officer to the Warden at Northpoint Training Center.
The Warden upheld the decision of the adjustment officer.
-2- On August 1, 2019, Davidson filed a Petition for Declaration of
Rights in the Franklin Circuit Court. In the petition, Davidson contended, inter
alia, that his right to be protected from harm as guaranteed by the Eighth
Amendment of the United States Constitution and Section 17 of the Kentucky
Constitution was violated. Davidson also alleged his actions were taken in self-
defense as demonstrated by available evidence including video footage that the
adjustment officer refused to review. In response, a Motion to Dismiss was filed
alleging that Davidson had failed to state a claim upon which relief could be
granted.
By Order entered October 3, 2019, the circuit court granted the
Motion to Dismiss. Thereafter, on October 17, 2019, Davidson’s Notice of Appeal
was tendered, and his Motion to Proceed In Forma Pauperis was filed with the
circuit court.1 For some unexplained reason, on October 24, 2019, the circuit court
rendered another order also granting the Motion to Dismiss. Davidson’s
previously tendered Notice of Appeal was then filed November 1, 2019.2 This
appeal follows.
1 The Notice of Appeal, which was tendered on October 17, 2019, was not filed by the Franklin Circuit Clerk, pending a ruling on Anthony Davidson’s Motion to Proceed In Forma Pauperis. That motion was granted by the circuit court by order entered November 1, 2019. 2 The record contains no explanation as to why a second order was entered dismissing the petition. Had the Notice of Appeal been filed prior to entry of the second order, that order would have been void due to the court’s lack of jurisdiction over the case once the appeal was filed. Wright v. Ecolab, Inc., 461 S.W.3d 753, 758-59 (Ky. 2015). Since the Notice of Appeal was
-3- A motion to dismiss for failure to state a claim is governed by
Kentucky Rules of Civil Procedure (CR) 12.02(f) and presents a question of law
subject to de novo review. Campbell v. Ballard, 559 S.W.3d 869, 870 (Ky. App.
2018). The pleadings must be liberally construed in a light most favorable to the
nonmoving party, and the allegations contained in the complaint are taken as true.
Id. at 870-71. And, the circuit court should deny the motion to dismiss “unless it
appears the pleading party would not be entitled to relief under any set of facts
which could be proved in support of his claim.” James v. Wilson, 95 S.W.3d 875,
883 (Ky. App. 2002) (citation omitted).
Davidson’s first argument on appeal is that the circuit court applied
the wrong standard of review as he argues his claims are grounded in state law and
not “federal construction” claims as interpreted by the circuit court. Although
Davidson provides no legal basis or rationale for this allegation, he argues he was
denied “liberal construction” of applicable law to his petition. The circuit court’s
second order entered October 24, 2019, clearly sets out the correct standard of
review for a motion to dismiss filed under CR 12.02, and we find no error in the
court’s analysis in this regard. Thus, we conclude this argument is without merit.
Davidson’s second argument asserts that the prison disciplinary action
violated his right to due process as guaranteed by the Fourteenth Amendment to
filed by the circuit clerk after the second order had been ordered, we will treat that order as a timely amendment of the first order.
-4- the United States Constitution and Section 2 of the Kentucky Constitution. More
specifically, Davidson asserts his right to due process was violated by the
adjustment officer’s failure to review the video footage of the February 10, 2019,
incident.
The Kentucky Supreme Court addressed an inmate’s right to due
process as it relates to review of video footage in Ramirez v. Nietzel, 424 S.W.3d
911 (Ky. 2014). In Ramirez, the Court noted that despite having recognized the
denial of an inmate’s access to documentary evidence as a violation of due process,
Kentucky courts had not similarly recognized the denial of access to video footage.
The Ramirez Court then followed the Seventh Circuit Court of Appeals’ position
on the issue and held that an adjustment officer’s refusal to review such video
footage constitutes a violation of due process. Id. In particular, the Ramirez Court
held that an adjustment officer “must review security footage if an inmate requests
such review.” Id. at 920 (citations omitted).
In the case sub judice, taking Davidson’s allegations as set forth in his
pleadings as true, it appears that Davidson requested that the adjustment officer
view the video footage of the February 10, 2019, incident. However, the record
before this Court reflects that Lieutenant May, the investigating officer, reviewed
the video and testified at the hearing. There is nothing in the record on appeal to
establish that the adjustment officer reviewed the video footage at the hearing or in
-5- camera. Likewise, from our review, we cannot discern that there was any other
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RENDERED: JANUARY 8, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-1640-MR
ANTHONY DAVIDSON APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT v. HONORABLE PHILLIP J. SHEPHERD, JUDGE ACTION NO. 19-CI-00566
JONATHAN GRATE APPELLEE
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: LAMBERT, MCNEILL, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Anthony Davidson, pro se, brings this appeal from an
October 3, 2019, Order and an October 24, 2019, Opinion and Order of the
Franklin Circuit Court dismissing his petition for declaration of rights. We affirm
in part, reverse in part, and remand.
On February 10, 2019, Davidson, an inmate at Northpoint Training
Center, was involved in a physical altercation with another inmate. According to the disciplinary report filed by Officer Benjamin Zdrojowy, a physical altercation
occurred between Davidson and inmate Paul McQueen. Davidson claimed that
McQueen, who was assigned to a separate living area, traveled to Davidson’s dorm
and assaulted him. When Officer Zdrojowy arrived, he witnessed McQueen step
out of Davidson’s dorm and say, “Come on out here, don’t back down now.”
Record on Appeal at 23. Davidson stepped out and replied, “You know you can
never walk this [d]orm again.” Record on Appeal at 23. Davidson’s nose was
bleeding and there was blood and clothing scattered around the area. As Officer
Zdrojowy began to handcuff McQueen, Davidson began to advance toward them.
Officer Zdrojowy told Davidson twice to step back. Another officer arrived on the
scene and removed Davidson.
Davidson was subsequently charged with physical action/force against
another inmate. A disciplinary hearing was conducted on March 15, 2019.
Davidson was present at the hearing and pleaded not guilty to the charges.
Davidson claimed he was assaulted by McQueen and acted in self-defense.
Following the hearing, Davidson was found guilty as charged and assessed five
days disciplinary segregation. On March 27, 2019, Davidson appealed the
decision of the adjustment officer to the Warden at Northpoint Training Center.
The Warden upheld the decision of the adjustment officer.
-2- On August 1, 2019, Davidson filed a Petition for Declaration of
Rights in the Franklin Circuit Court. In the petition, Davidson contended, inter
alia, that his right to be protected from harm as guaranteed by the Eighth
Amendment of the United States Constitution and Section 17 of the Kentucky
Constitution was violated. Davidson also alleged his actions were taken in self-
defense as demonstrated by available evidence including video footage that the
adjustment officer refused to review. In response, a Motion to Dismiss was filed
alleging that Davidson had failed to state a claim upon which relief could be
granted.
By Order entered October 3, 2019, the circuit court granted the
Motion to Dismiss. Thereafter, on October 17, 2019, Davidson’s Notice of Appeal
was tendered, and his Motion to Proceed In Forma Pauperis was filed with the
circuit court.1 For some unexplained reason, on October 24, 2019, the circuit court
rendered another order also granting the Motion to Dismiss. Davidson’s
previously tendered Notice of Appeal was then filed November 1, 2019.2 This
appeal follows.
1 The Notice of Appeal, which was tendered on October 17, 2019, was not filed by the Franklin Circuit Clerk, pending a ruling on Anthony Davidson’s Motion to Proceed In Forma Pauperis. That motion was granted by the circuit court by order entered November 1, 2019. 2 The record contains no explanation as to why a second order was entered dismissing the petition. Had the Notice of Appeal been filed prior to entry of the second order, that order would have been void due to the court’s lack of jurisdiction over the case once the appeal was filed. Wright v. Ecolab, Inc., 461 S.W.3d 753, 758-59 (Ky. 2015). Since the Notice of Appeal was
-3- A motion to dismiss for failure to state a claim is governed by
Kentucky Rules of Civil Procedure (CR) 12.02(f) and presents a question of law
subject to de novo review. Campbell v. Ballard, 559 S.W.3d 869, 870 (Ky. App.
2018). The pleadings must be liberally construed in a light most favorable to the
nonmoving party, and the allegations contained in the complaint are taken as true.
Id. at 870-71. And, the circuit court should deny the motion to dismiss “unless it
appears the pleading party would not be entitled to relief under any set of facts
which could be proved in support of his claim.” James v. Wilson, 95 S.W.3d 875,
883 (Ky. App. 2002) (citation omitted).
Davidson’s first argument on appeal is that the circuit court applied
the wrong standard of review as he argues his claims are grounded in state law and
not “federal construction” claims as interpreted by the circuit court. Although
Davidson provides no legal basis or rationale for this allegation, he argues he was
denied “liberal construction” of applicable law to his petition. The circuit court’s
second order entered October 24, 2019, clearly sets out the correct standard of
review for a motion to dismiss filed under CR 12.02, and we find no error in the
court’s analysis in this regard. Thus, we conclude this argument is without merit.
Davidson’s second argument asserts that the prison disciplinary action
violated his right to due process as guaranteed by the Fourteenth Amendment to
filed by the circuit clerk after the second order had been ordered, we will treat that order as a timely amendment of the first order.
-4- the United States Constitution and Section 2 of the Kentucky Constitution. More
specifically, Davidson asserts his right to due process was violated by the
adjustment officer’s failure to review the video footage of the February 10, 2019,
incident.
The Kentucky Supreme Court addressed an inmate’s right to due
process as it relates to review of video footage in Ramirez v. Nietzel, 424 S.W.3d
911 (Ky. 2014). In Ramirez, the Court noted that despite having recognized the
denial of an inmate’s access to documentary evidence as a violation of due process,
Kentucky courts had not similarly recognized the denial of access to video footage.
The Ramirez Court then followed the Seventh Circuit Court of Appeals’ position
on the issue and held that an adjustment officer’s refusal to review such video
footage constitutes a violation of due process. Id. In particular, the Ramirez Court
held that an adjustment officer “must review security footage if an inmate requests
such review.” Id. at 920 (citations omitted).
In the case sub judice, taking Davidson’s allegations as set forth in his
pleadings as true, it appears that Davidson requested that the adjustment officer
view the video footage of the February 10, 2019, incident. However, the record
before this Court reflects that Lieutenant May, the investigating officer, reviewed
the video and testified at the hearing. There is nothing in the record on appeal to
establish that the adjustment officer reviewed the video footage at the hearing or in
-5- camera. Likewise, from our review, we cannot discern that there was any other
evidence relied upon at the hearing. Considering the holding in Ramirez, 424
S.W.3d at 920-21, Davidson has set forth a disputed claim in his petition for a
violation of his due process rights in the failure of the adjustment officer to review
the video footage of the incident. For this reason, the circuit court erred by
granting the motion to dismiss for failure to state a claim upon which relief could
be granted.3
On remand, the circuit court’s review will be in accordance with the
mandate set out in Ramirez as follows:
In finding Ramirez’s rights violated in this case, we remand the action to the circuit court for further proceedings. The circuit court should review the security footage in camera, assuming, of course, a legitimate reason is provided for prohibiting Ramirez from viewing the tape. “When a prisoner maintains that he was denied a meaningful opportunity to present a defense due to [an AO’s] refusal to consider exculpatory evidence, then procedural due process requires a [circuit] court to conduct an in camera review of the evidence” to determine whether it was indeed exculpatory and whether, in light of the new evidence, “some evidence” existed for the AO’s finding of guilt.
Ramirez, 424 S.W.3d at 920 (citation omitted).
3 This Opinion should not be construed as passing upon the merits of Anthony Davidson’s claim. We merely hold that Davidson has set forth a viable claim for violation of his due process rights under Ramirez v. Nietzel, 424 S.W.3d 911 (Ky. 2014).
-6- Davidson’s final argument on appeal essentially alleges that the
design of the housing units and the lack of adequate staffing at Northpoint Training
Center place inmates at risk of harm in violation of the Eighth Amendment to the
United States Constitution and Section 17 of the Kentucky Constitution.
Before an inmate may be successful upon a claim under the Eighth
Amendment, two requirements must be satisfied. Farmer v. Brennan, 511 U.S.
825, 833 (1994). Under the first requirement, an inmate must demonstrate that the
alleged deprivation is “objectively, ‘sufficiently serious[.]’” Id. at 834 (citations
omitted). More particularly, where a claim is based upon “a failure to prevent
harm,” an inmate must demonstrate he is incarcerated under conditions that pose “a
substantial risk of serious harm.” Id. (citation omitted). Under the second
requirement, an inmate must demonstrate that prison officials acted with
“deliberate indifference” to the health or safety of the inmate. Id. (citations
omitted). More particularly, “deliberate indifference” requires that the prison
official: (1) “knows of and disregards an excessive risk to inmate health or
safety;” (2) “must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists[;]” and (3) “must also draw the
inference.” Id. at 837.
In the case sub judice, Davidson has failed to demonstrate that prison
officials had knowledge that he and other inmates were subjected to a substantial
-7- risk of serious harm due to the physical layout of the prison facility or a lack of
adequate staffing. Likewise, Davidson has not shown that prison officials were
aware of any conditions that would support his allegation that they acted in
contradiction of the health or safety of the inmates. As Davidson has failed to
satisfy the requirements as set forth in Farmer, 511 U.S. at 833, for a successful
Eighth Amendment claim, we cannot grant Davidson the relief requested.
In sum, we are of the opinion that the circuit court erroneously
granted the motion to dismiss for failure to state a claim upon Davidson’s claim his
due process rights were denied by the adjustment officer’s failure to review the
video record requested by him. However, we affirm upon all other issues.
For the foregoing reasons the order of the Franklin Circuit Court is
affirmed in part, reversed in part, and remanded for proceedings consistent with
this Opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Anthony Davidson, Pro Se Kristin Wehking Burgin, Kentucky Franklin, Kentucky
-8-