RENDERED: JUNE 11, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0464-MR
LORENZO CARROLL APPELLANT
APPEAL FROM BOYLE CIRCUIT COURT v. HONORABLE DARREN W. PECKLER, JUDGE ACTION NO. 19-CI-00429
BRAD ADAMS AND LEE MAY APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, MAZE, AND McNEILL, JUDGES.
McNEILL, JUDGE: Lorenzo Carroll (Carroll), pro se, appeals from a February 3,
2020 order of the Boyle Circuit Court denying his petition for a declaration of
rights regarding a prison disciplinary proceeding against him. Finding no error, we
affirm. I. BACKGROUND
Carroll, while an inmate at the Northpoint Training Center (NTC),
was charged with sexual assault of an officer. A disciplinary hearing was held on
May 21, 2019, before an NTC adjustment committee. The adjustment committee,
through adjustment committee officer Lieutenant Lee May (hereinafter “ACO”),
found Carroll guilty. Carroll was assessed a penalty of non-restorable loss of 730
days’ good time credit and thirty days’ disciplinary segregation, with credit for 11
days served.1
At the hearing, the ACO read into the record a report of prison safety
coordinator Keith A. Schneider (Schneider). Schneider’s report read, in part, “The
investigation shows that this inmate assaulted Officer [S.C.][2] while walking up
the stairs of Dormitory 3 when he placed a finger between Officer [S.C.’s]
buttocks.”
The ACO next read aloud the contents and substance of the
investigation of correctional officer Ronnie Haynes (Haynes). Haynes’s report
says Carroll was advised of the charges and of his due process rights, whereupon
1 When pronouncing the penalty, at the conclusion of the hearing, the ACO indicated Carroll would receive 180 days of disciplinary segregation. Once reduced to writing, the penalty was transcribed as 30 days. The briefs of the parties and the trial court’s order all indicate that the penalty was 30 days. 2 We identify the officer through the use of initials under Court of Appeals Administrative Order 2006-10.
-2- Carroll pleaded not guilty and advised he would not waive his right to a twenty-
four-hour waiting period for the hearing. According to the Hayes report, Carroll
did not ask to call any witnesses, and requested a legal aide, Randy Whitson
(Whitson), to be present at the hearing.
After reading the reports, the ACO acknowledged Whitson’s presence
and asked Carroll how he wished to plead. After Carroll indicated his desire to
plead not guilty, the ACO asked Carroll if he had anything to add. When Carroll
did not verbally respond, the ACO asked, “Nothing?,” to which Carroll did not
audibly respond.3
At that point, the ACO said she had reviewed camera footage of the
alleged incident, and that in that footage, “inmate Carroll follows [S.C.] down the
stairs in dorm 3 and he waits for her to return up the stairs. While she is walking
up the stairs, inmate Carroll returns behind her, follows her up the stairs and
touches her buttocks by placing his finger between her butt cheeks.” Based on the
camera footage and Schneider’s report, the ACO pronounced Carroll guilty.
On May 24, 2019, Carroll filed an administrative appeal to Brad
Adams, the warden of NTC (Warden Adams). Carroll attached two letters in
support of his administrative appeal. In summary, he argued that he: 1) had a pre-
3 The record contains only an audio recording of the hearing.
-3- existing flirtation or relationship with S.C. and, therefore, his touching of her was
consensual; 2) did not receive 24 hours’ notice of the hearing; and 3) did not
receive a written copy of the charges against him. Carroll asked for a new hearing
or, in the alternative, that he be restored his good time credit. The administrative
appeal was denied.
Carroll filed a petition for a declaration of rights against the ACO and
Warden Adams (collectively, prison officials) pursuant to KRS4 418.040 in the
Boyle Circuit Court on December 18, 2019. In his petition, Carroll argued he was
denied due process under the Fourteenth Amendment of the United States
Constitution because: 1) he was denied the right to call witnesses at the hearing; 2)
video evidence was considered that Carroll himself was not allowed to review; and
3) the finding of guilt was unsupported by any evidence.
Prison officials moved to dismiss the petition on January 13, 2020. In
support of their motion to dismiss, prison officials provided the circuit court an
audio copy of the adjustment committee hearing. They argued Carroll was
afforded sufficient due process as he was given the right to call witnesses, was
provided a copy of a written statement by the fact finder concerning the finding of
guilt, and waived written notice of the charges against him. Finally, prison
4 Kentucky Revised Statutes.
-4- officials argued that the video of the incident reviewed by the ACO amounted to
“some evidence” of guilt.
Rather than granting or denying the prison officials’ motion to
dismiss, the trial court entered a final order on February 3, 2020 denying Carroll’s
petition for declaration of rights. This appeal followed.
II. STANDARD OF REVIEW
Generally, we review the decision of the circuit court in a declaratory
judgment under a clearly erroneous standard. Reynolds Enterprises, Inc. v.
Kentucky Bd. of Embalmers and Funeral Directors, 382 S.W.3d 47, 49 (Ky. App.
2012). This standard, however, is based on CR5 52.01, which provides that in
actions tried without a jury, “the court shall find the facts specifically” and that
those “[f]indings of fact [] shall not be set aside unless clearly erroneous.”
However, CR 52.01 does not require the court to make any findings of fact and
conclusions of law where there has been no trial on the matter. Page v. Louisville,
722 S.W.2d 60, 61 (Ky. App. 1986).
While the circuit court’s February 3, 2020 order is not styled a
summary judgment, because it contains no findings of fact or conclusions of law
yet disposed of the case, we believe it should be construed as such. “A grant of
summary judgment is reviewed de novo because factual findings are not at issue.”
5 Kentucky Rules of Civil Procedure.
-5- Feltner v. PJ Operations, 568 S.W.3d 1, 3 (Ky. App. 2018). We will review the
order under that standard.
When reviewing an inmate’s petition for declaration of rights
concerning prison discipline, the circuit court is constrained by the administrative
record. “While technically original actions, these inmate petitions share many of
the aspects of appeals.” Smith v. O’Dea, 939 S.W.2d 353, 355 (Ky. App. 1997).
In Smith, we held:
The court seeks not to form its own judgment, but, with due deference, to ensure that the agency’s judgment comports with the legal restrictions applicable to it. The focal point for [this] judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.
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RENDERED: JUNE 11, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0464-MR
LORENZO CARROLL APPELLANT
APPEAL FROM BOYLE CIRCUIT COURT v. HONORABLE DARREN W. PECKLER, JUDGE ACTION NO. 19-CI-00429
BRAD ADAMS AND LEE MAY APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, MAZE, AND McNEILL, JUDGES.
McNEILL, JUDGE: Lorenzo Carroll (Carroll), pro se, appeals from a February 3,
2020 order of the Boyle Circuit Court denying his petition for a declaration of
rights regarding a prison disciplinary proceeding against him. Finding no error, we
affirm. I. BACKGROUND
Carroll, while an inmate at the Northpoint Training Center (NTC),
was charged with sexual assault of an officer. A disciplinary hearing was held on
May 21, 2019, before an NTC adjustment committee. The adjustment committee,
through adjustment committee officer Lieutenant Lee May (hereinafter “ACO”),
found Carroll guilty. Carroll was assessed a penalty of non-restorable loss of 730
days’ good time credit and thirty days’ disciplinary segregation, with credit for 11
days served.1
At the hearing, the ACO read into the record a report of prison safety
coordinator Keith A. Schneider (Schneider). Schneider’s report read, in part, “The
investigation shows that this inmate assaulted Officer [S.C.][2] while walking up
the stairs of Dormitory 3 when he placed a finger between Officer [S.C.’s]
buttocks.”
The ACO next read aloud the contents and substance of the
investigation of correctional officer Ronnie Haynes (Haynes). Haynes’s report
says Carroll was advised of the charges and of his due process rights, whereupon
1 When pronouncing the penalty, at the conclusion of the hearing, the ACO indicated Carroll would receive 180 days of disciplinary segregation. Once reduced to writing, the penalty was transcribed as 30 days. The briefs of the parties and the trial court’s order all indicate that the penalty was 30 days. 2 We identify the officer through the use of initials under Court of Appeals Administrative Order 2006-10.
-2- Carroll pleaded not guilty and advised he would not waive his right to a twenty-
four-hour waiting period for the hearing. According to the Hayes report, Carroll
did not ask to call any witnesses, and requested a legal aide, Randy Whitson
(Whitson), to be present at the hearing.
After reading the reports, the ACO acknowledged Whitson’s presence
and asked Carroll how he wished to plead. After Carroll indicated his desire to
plead not guilty, the ACO asked Carroll if he had anything to add. When Carroll
did not verbally respond, the ACO asked, “Nothing?,” to which Carroll did not
audibly respond.3
At that point, the ACO said she had reviewed camera footage of the
alleged incident, and that in that footage, “inmate Carroll follows [S.C.] down the
stairs in dorm 3 and he waits for her to return up the stairs. While she is walking
up the stairs, inmate Carroll returns behind her, follows her up the stairs and
touches her buttocks by placing his finger between her butt cheeks.” Based on the
camera footage and Schneider’s report, the ACO pronounced Carroll guilty.
On May 24, 2019, Carroll filed an administrative appeal to Brad
Adams, the warden of NTC (Warden Adams). Carroll attached two letters in
support of his administrative appeal. In summary, he argued that he: 1) had a pre-
3 The record contains only an audio recording of the hearing.
-3- existing flirtation or relationship with S.C. and, therefore, his touching of her was
consensual; 2) did not receive 24 hours’ notice of the hearing; and 3) did not
receive a written copy of the charges against him. Carroll asked for a new hearing
or, in the alternative, that he be restored his good time credit. The administrative
appeal was denied.
Carroll filed a petition for a declaration of rights against the ACO and
Warden Adams (collectively, prison officials) pursuant to KRS4 418.040 in the
Boyle Circuit Court on December 18, 2019. In his petition, Carroll argued he was
denied due process under the Fourteenth Amendment of the United States
Constitution because: 1) he was denied the right to call witnesses at the hearing; 2)
video evidence was considered that Carroll himself was not allowed to review; and
3) the finding of guilt was unsupported by any evidence.
Prison officials moved to dismiss the petition on January 13, 2020. In
support of their motion to dismiss, prison officials provided the circuit court an
audio copy of the adjustment committee hearing. They argued Carroll was
afforded sufficient due process as he was given the right to call witnesses, was
provided a copy of a written statement by the fact finder concerning the finding of
guilt, and waived written notice of the charges against him. Finally, prison
4 Kentucky Revised Statutes.
-4- officials argued that the video of the incident reviewed by the ACO amounted to
“some evidence” of guilt.
Rather than granting or denying the prison officials’ motion to
dismiss, the trial court entered a final order on February 3, 2020 denying Carroll’s
petition for declaration of rights. This appeal followed.
II. STANDARD OF REVIEW
Generally, we review the decision of the circuit court in a declaratory
judgment under a clearly erroneous standard. Reynolds Enterprises, Inc. v.
Kentucky Bd. of Embalmers and Funeral Directors, 382 S.W.3d 47, 49 (Ky. App.
2012). This standard, however, is based on CR5 52.01, which provides that in
actions tried without a jury, “the court shall find the facts specifically” and that
those “[f]indings of fact [] shall not be set aside unless clearly erroneous.”
However, CR 52.01 does not require the court to make any findings of fact and
conclusions of law where there has been no trial on the matter. Page v. Louisville,
722 S.W.2d 60, 61 (Ky. App. 1986).
While the circuit court’s February 3, 2020 order is not styled a
summary judgment, because it contains no findings of fact or conclusions of law
yet disposed of the case, we believe it should be construed as such. “A grant of
summary judgment is reviewed de novo because factual findings are not at issue.”
5 Kentucky Rules of Civil Procedure.
-5- Feltner v. PJ Operations, 568 S.W.3d 1, 3 (Ky. App. 2018). We will review the
order under that standard.
When reviewing an inmate’s petition for declaration of rights
concerning prison discipline, the circuit court is constrained by the administrative
record. “While technically original actions, these inmate petitions share many of
the aspects of appeals.” Smith v. O’Dea, 939 S.W.2d 353, 355 (Ky. App. 1997).
In Smith, we held:
The court seeks not to form its own judgment, but, with due deference, to ensure that the agency’s judgment comports with the legal restrictions applicable to it. The focal point for [this] judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court. These petitions thus present circumstances in which the need for judicial factfinding is greatly reduced.
Id. at 355-56 (internal quotation marks and citations omitted).
The summary judgment standard therefore must be qualified. “The
problem is to reconcile the requirement under the general summary judgment
standard to view as favorably to the non-moving party as is reasonably possible the
facts and any inferences drawn therefrom, with a reviewing court’s duty to
acknowledge an agency’s discretionary authority, its expertise, and its superior
access to evidence.” Id. at 356.
-6- III. ANALYSIS
A. Wolff v. McDonnell
The right to due process has two categorical distinctions: procedural
due process and substantive due process. McDonald v. City of Chicago, Ill., 561
U.S. 742, 863, 130 S. Ct. 3020, 3091, 177 L. Ed. 2d 894 (2010). The former
ensures fair process when protected rights are abridged, while the latter provides
protection against governmental interference with certain fundamental rights that
are encompassed in the terms life, liberty, and property. Id.
When procedural due process protection is warranted based upon the
consequences of inmate discipline, pursuant to Wolff v. McDonnell, 418 U.S. 539,
563-67, 94 S. Ct. 2963, 2978-80, 41 L. Ed. 2d 935 (1974), the inmate is entitled to
receive:
(1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action.
Because Carroll’s punishment for the alleged violations resulted in the loss of non-
restorable good time credits, a protected liberty interest has been implicated. See
Wolff, 418 U.S. at 557, 94 S. Ct. at 2963. Thus, we must determine if the circuit
court erred in ruling that the elements of Wolff were met as a matter of law.
-7- Carroll argues that he was denied procedural due process because he
was not allowed to view the videotape of the incident prior to the hearing and
because he was denied the right to call S.C. as a witness. We discuss each of these
claims in turn.
The Kentucky Supreme Court has held that an inmate does not have
an unlimited constitutional right to view video footage in a prison disciplinary
case. Ramirez v. Nietzel, 424 S.W.3d 911, 920 (Ky. 2014). Due process is
satisfied if an administrative officer views the footage and in turn considers its
weight in making a finding of guilt or innocence. Id. The administrative record
indicates the ACO did review the footage, and in doing so confirmed that Carroll
placed his finger between S.C.’s buttocks. We agree with the trial court that this
satisfied the requirements of procedural due process.
Although in some circumstances due process requires an inmate
access to potentially exculpatory evidence on video, this perceived right is
tempered by a prison’s interest in “preventing undue hazards to institutional safety
or correctional goals.” Id. at 915. Ordinarily, in denying an inmate’s request to
view video evidence, prison officials must articulate their reasoning. Id. at 919.
Here, the administrative record is devoid of any discussion as to why Carroll
would not be allowed to review the tape. However, Carroll did not raise the issue
when given the opportunity to speak at the hearing. Nor did he offer any testimony
-8- to mitigate the ACO’s account of what she viewed in the video. Finally, in neither
his appeal to Warden Adams nor his petition in the circuit court did Adams deny
touching S.C. in the manner alleged. Thus, there was no issue of material fact for
the circuit court to consider and no reason to conclude Carroll was deprived of due
process.6
Similarly, the circuit court appropriately rejected Carroll’s argument
that he was prevented from calling S.C. as a witness and denied due process
thereby. Again, we must consider Carroll’s argument in light of the administrative
record. Prison investigator Schneider reported that Carroll did not ask to call any
witnesses. Carroll did not object when the report was read into the record, nor did
he attempt to call S.C. as a witness during the disciplinary hearing. Carroll claims
he requested the opportunity to call S.C. prior to the hearing, however, Carroll did
not raise this issue in his appeal to Warden Adams. The administrative record is
silent as to any request by Carroll to call S.C. as a witness, let alone that such a
request was rejected.
The circuit court therefore correctly ruled that Carroll was afforded
sufficient procedural due process under Wolff.
6 While Carroll claims in his brief he requested that the ACO view video footage of previous consensual contact between him and S.C., this issue was not raised in the court below. “[S]pecific grounds not raised before the trial court, but raised for the first time on appeal will not support a favorable ruling on appeal.” Norton Healthcare, Inc. v. Deng, 487 S.W.3d 846, 852 (Ky. 2016).
-9- B. Walpole v. Hill
Finally, Carroll argues that the circuit court erred in ruling that the
ACO’s finding of guilt against him comported with Superintendent, Massachusetts
Correctional Institution, Walpole v. Hill, 472 U.S. 445, 454, 105 S. Ct. 2768, 2773,
86 L. Ed. 2d 356 (1985). In Walpole, the Unites States Supreme Court held that
“the requirements of due process are satisfied if some evidence supports the
decision by the prison disciplinary board[.]” Id. at 455, 105 S. Ct. at 2774.
Though Carroll does not deny the existence of evidence that he
touched S.C. by placing his finger between her buttocks, he argues that this
evidence should have been viewed in the context of their existing relationship. As
set forth above, however, Carroll did not present any evidence of an existing
relationship at the hearing. This argument is an attempt to flip Walpole on its head,
inferring that the “some evidence” standard requires an adjustment officer to give
an inmate the benefit of any conceivable inference even in light of compelling
evidence. This is simply not the case.
We have held that evidence supporting inmate discipline need not be
compelling and that a finding of guilt may be supported by reasonable inferences
drawn from indirect evidence. Smith, 939 S.W.2d at 357. In the instant case, the
ACO reviewed video footage which shows a lewd act committed on a corrections
officer with her back turned to Carroll. Carroll did not at the hearing, nor has he
-10- ever, denied doing so. The ACO undoubtedly relied on some evidence to support
Carroll’s finding of guilt, and the circuit court did not err in so holding.
IV. CONCLUSION
For the foregoing reasons, we affirm the order of the Boyle Circuit
Court denying Carroll’s petition for declaration of rights.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Lorenzo Carroll, pro se Kristin Wehking Burgin, Kentucky Frankfort, Kentucky
-11-