RENDERED: DECEMBER 6, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0092-MR
SIMEON MCKINNIE APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT v. HONORABLE THOMAS D. WINGATE, JUDGE ACTION NO. 23-CI-00527
ZACHARY PARSONS; COMMONWEALTH OF KENTUCKY; COOKIE CREWS; AND DAVID GREEN APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: CETRULO, COMBS, AND EASTON, JUDGES.
CETRULO, JUDGE: Simeon McKinnie (“McKinnie”), an inmate at the Eastern
Kentucky Correctional Complex (“EKCC”) appeals, pro se, from an order of the
Franklin Circuit Court dismissing his petition for declaratory judgment pursuant to
Kentucky Revised Statute (“KRS”) 418.040. After review of the record, we
affirm. BACKGROUND
The facts of this case are largely undisputed. On February 12, 2023,
corrections officer Steven Wright (“Officer Wright”) walked in an EKCC
recreational field and observed an inmate handing two other inmates a bottle and
bag containing an unknown liquid substance. McKinnie was one of the inmates
who appeared to be on the receiving end of this exchange. As Officer Wright
approached the inmates, they began pouring the liquid on the ground. Officer
Wright retrieved the bottle and bag, and, under the supervision of another officer,
tested the contents of the bottle and bag for alcohol. The unknown liquid tested
positive for alcohol.
Sergeant Tyler Bailey conducted an investigation that resulted in
charging McKinnie with possession or promoting of dangerous contraband in
contravention of the Kentucky Corrections Policies and Procedures (“CPP”). On
February 27, 2023, a disciplinary hearing regarding the matter took place. Zachary
Parsons (“Officer Parsons”) served as the adjustment officer at the hearing and
found McKinnie guilty of the charge. In his report, Officer Parsons stated that his
decision was based on his review of Officer Wright’s written incident report,
security reports that described the recovery and testing of the unknown liquid,
photographic evidence of the positive alcohol test, and the chain of evidence form.
-2- As a penalty, McKinnie received 30 days of disciplinary segregation, with 18 days
suspended for a period of 180 days.
McKinnie challenged the hearing result by appealing to EKCC
Warden David Green (“Warden Green”). McKinnie argued that the evidence did
not establish that he ever possessed the alcoholic liquid. Warden Green reviewed
the evidence and denied the appeal. Next, McKinnie, pro se, petitioned the circuit
court, pursuant to KRS 418.040, for declaratory judgment dismissing the findings
of the hearing. McKinnie named Officer Parsons, Warden Green, and Cookie
Crews as Commissioner of the Kentucky Department of Corrections as defendants.
The defendants filed a response/motion to dismiss, which the circuit court granted.
This appeal followed. Additional facts are added as necessary.
ANALYSIS
McKinnie argues that EKCC1 violated his constitutional right to due
process because the guilty decision that resulted from his disciplinary hearing was
made without any “reliable evidence” to suggest his guilt. According to
McKinnie, the lack of reliable evidence violated his liberty interest in the processes
1 On appeal, as the appellees, Officer Parsons, Warden Green, Commissioner Cookie Crews, and the Commonwealth of Kentucky, are representatives of EKCC, they shall be referred to collectively as “EKCC” unless specification is otherwise necessary.
-3- established and required by the CPP.2 Conversely, EKCC asserts that there was
sufficient evidence to support Officer Parsons’s finding of guilt. We agree with
EKCC.
Inmates may petition for declaratory judgment pursuant to KRS
418.040 for “review of their disputes with the Corrections Department[,]” outside
of the habeas corpus context. Smith v. O’Dea, 939 S.W.2d 353, 355 (Ky. App.
1997) (citation omitted). “[Kentucky Rule of Civil Procedure] CR 12 motions to
dismiss for failure to state a claim, and CR 56 motions for summary judgment are
typical Corrections Department responses to inmate declaratory judgment
petitions.” Id. at 355 n.1. Although EKCC sought dismissal of McKinnie’s suit
under Rule 12 and the circuit court granted that dismissal, our review is more in
keeping with the review of a grant of summary judgment. The summary judgment
standard of review affords the reviewing court “the most appropriate procedure and
standards for addressing these petitions.” Id.
2 Additionally, McKinnie asserted that this deprivation of rights caused him to lose his liberty interest in good-time days. This argument lacks merit because the penalty section of the disciplinary hearing report definitively reflects that McKinnie did not actually lose any earned good-time. Furthermore, any argument that he lost potentially earned meritorious good-time is fruitless because that good-time is awarded on a discretionary basis. See Marksberry v. Chandler, 126 S.W.3d 747, 751-53 (Ky. App. 2003) (“[M]eritorious good-time is awarded only upon an affirmative decision and action by the Commissioner. Under CPP 15.3 an inmate must be recommended for meritorious good-time and the Commissioner has discretion whether to make an award.”).
-4- In O’Dea, this Court adopted the reasoning of the Supreme Court of
the United States that a “prison administration’s profound interest in maintaining
order [outweighs] the inmate’s relatively minor interest in avoiding a portion of his
sentence.” 939 S.W.2d at 356-58 (citing Wolff v. McDonnell, 418 U.S. 539, 94
S. Ct. 2963, 41 L. Ed. 2d 935 (1974)). Thus, all that due process requires in prison
disciplinary proceedings is “notice of the charges, a reasonable opportunity to be
heard, and a brief written finding suitable for judicial review.” Id.
Here, the record reflects that these minimal due process requirements
were met. McKinnie was given advance written notice of the charges, an
opportunity to present evidence in his defense, and a written statement by the
factfinder of the evidence relied upon and the reasons for the disciplinary action.
Thus, the only question we must answer is whether there was sufficient evidence
for a finding of guilt.
The O’Dea Court also found that, under the United States
Constitution and our Kentucky Constitution, “courts review [a] prison disciplinary
committees’ findings of fact by asking whether ‘some evidence’ appearing in the
record supports the finding.” Id. at 356. More recently, this Court stated:
With respect to this standard, the United States Supreme Court said, “Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could
-5- support the conclusion reached by the disciplinary board.” [Superintendent, Mass. Correctional Institution, Walpole v. Hill] 472 U.S. [445] at 455-56, 105 S. Ct. [2768,] 2774 [86 L. Ed. 2d 356 (1986)].
Wilson v. Haney, 430 S.W.3d 254
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: DECEMBER 6, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0092-MR
SIMEON MCKINNIE APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT v. HONORABLE THOMAS D. WINGATE, JUDGE ACTION NO. 23-CI-00527
ZACHARY PARSONS; COMMONWEALTH OF KENTUCKY; COOKIE CREWS; AND DAVID GREEN APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: CETRULO, COMBS, AND EASTON, JUDGES.
CETRULO, JUDGE: Simeon McKinnie (“McKinnie”), an inmate at the Eastern
Kentucky Correctional Complex (“EKCC”) appeals, pro se, from an order of the
Franklin Circuit Court dismissing his petition for declaratory judgment pursuant to
Kentucky Revised Statute (“KRS”) 418.040. After review of the record, we
affirm. BACKGROUND
The facts of this case are largely undisputed. On February 12, 2023,
corrections officer Steven Wright (“Officer Wright”) walked in an EKCC
recreational field and observed an inmate handing two other inmates a bottle and
bag containing an unknown liquid substance. McKinnie was one of the inmates
who appeared to be on the receiving end of this exchange. As Officer Wright
approached the inmates, they began pouring the liquid on the ground. Officer
Wright retrieved the bottle and bag, and, under the supervision of another officer,
tested the contents of the bottle and bag for alcohol. The unknown liquid tested
positive for alcohol.
Sergeant Tyler Bailey conducted an investigation that resulted in
charging McKinnie with possession or promoting of dangerous contraband in
contravention of the Kentucky Corrections Policies and Procedures (“CPP”). On
February 27, 2023, a disciplinary hearing regarding the matter took place. Zachary
Parsons (“Officer Parsons”) served as the adjustment officer at the hearing and
found McKinnie guilty of the charge. In his report, Officer Parsons stated that his
decision was based on his review of Officer Wright’s written incident report,
security reports that described the recovery and testing of the unknown liquid,
photographic evidence of the positive alcohol test, and the chain of evidence form.
-2- As a penalty, McKinnie received 30 days of disciplinary segregation, with 18 days
suspended for a period of 180 days.
McKinnie challenged the hearing result by appealing to EKCC
Warden David Green (“Warden Green”). McKinnie argued that the evidence did
not establish that he ever possessed the alcoholic liquid. Warden Green reviewed
the evidence and denied the appeal. Next, McKinnie, pro se, petitioned the circuit
court, pursuant to KRS 418.040, for declaratory judgment dismissing the findings
of the hearing. McKinnie named Officer Parsons, Warden Green, and Cookie
Crews as Commissioner of the Kentucky Department of Corrections as defendants.
The defendants filed a response/motion to dismiss, which the circuit court granted.
This appeal followed. Additional facts are added as necessary.
ANALYSIS
McKinnie argues that EKCC1 violated his constitutional right to due
process because the guilty decision that resulted from his disciplinary hearing was
made without any “reliable evidence” to suggest his guilt. According to
McKinnie, the lack of reliable evidence violated his liberty interest in the processes
1 On appeal, as the appellees, Officer Parsons, Warden Green, Commissioner Cookie Crews, and the Commonwealth of Kentucky, are representatives of EKCC, they shall be referred to collectively as “EKCC” unless specification is otherwise necessary.
-3- established and required by the CPP.2 Conversely, EKCC asserts that there was
sufficient evidence to support Officer Parsons’s finding of guilt. We agree with
EKCC.
Inmates may petition for declaratory judgment pursuant to KRS
418.040 for “review of their disputes with the Corrections Department[,]” outside
of the habeas corpus context. Smith v. O’Dea, 939 S.W.2d 353, 355 (Ky. App.
1997) (citation omitted). “[Kentucky Rule of Civil Procedure] CR 12 motions to
dismiss for failure to state a claim, and CR 56 motions for summary judgment are
typical Corrections Department responses to inmate declaratory judgment
petitions.” Id. at 355 n.1. Although EKCC sought dismissal of McKinnie’s suit
under Rule 12 and the circuit court granted that dismissal, our review is more in
keeping with the review of a grant of summary judgment. The summary judgment
standard of review affords the reviewing court “the most appropriate procedure and
standards for addressing these petitions.” Id.
2 Additionally, McKinnie asserted that this deprivation of rights caused him to lose his liberty interest in good-time days. This argument lacks merit because the penalty section of the disciplinary hearing report definitively reflects that McKinnie did not actually lose any earned good-time. Furthermore, any argument that he lost potentially earned meritorious good-time is fruitless because that good-time is awarded on a discretionary basis. See Marksberry v. Chandler, 126 S.W.3d 747, 751-53 (Ky. App. 2003) (“[M]eritorious good-time is awarded only upon an affirmative decision and action by the Commissioner. Under CPP 15.3 an inmate must be recommended for meritorious good-time and the Commissioner has discretion whether to make an award.”).
-4- In O’Dea, this Court adopted the reasoning of the Supreme Court of
the United States that a “prison administration’s profound interest in maintaining
order [outweighs] the inmate’s relatively minor interest in avoiding a portion of his
sentence.” 939 S.W.2d at 356-58 (citing Wolff v. McDonnell, 418 U.S. 539, 94
S. Ct. 2963, 41 L. Ed. 2d 935 (1974)). Thus, all that due process requires in prison
disciplinary proceedings is “notice of the charges, a reasonable opportunity to be
heard, and a brief written finding suitable for judicial review.” Id.
Here, the record reflects that these minimal due process requirements
were met. McKinnie was given advance written notice of the charges, an
opportunity to present evidence in his defense, and a written statement by the
factfinder of the evidence relied upon and the reasons for the disciplinary action.
Thus, the only question we must answer is whether there was sufficient evidence
for a finding of guilt.
The O’Dea Court also found that, under the United States
Constitution and our Kentucky Constitution, “courts review [a] prison disciplinary
committees’ findings of fact by asking whether ‘some evidence’ appearing in the
record supports the finding.” Id. at 356. More recently, this Court stated:
With respect to this standard, the United States Supreme Court said, “Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could
-5- support the conclusion reached by the disciplinary board.” [Superintendent, Mass. Correctional Institution, Walpole v. Hill] 472 U.S. [445] at 455-56, 105 S. Ct. [2768,] 2774 [86 L. Ed. 2d 356 (1986)].
Wilson v. Haney, 430 S.W.3d 254, 257 (Ky. App. 2014).
Here, McKinnie claims that the evidence used by Officer Parsons did
not meet the some evidence standard. This Court has addressed similar situations
in the recent past. In O’Dea, an inmate’s daughters visited the prison, and one was
caught concealing marijuana in her clothes. 939 S.W.2d at 355. Although he
never possessed the marijuana, an adjustment committee found the inmate guilty of
“complicity in the attempted introduction of contraband to the prison.” Id. On
review, this Court stated:
We think the apparent attempt by [the inmate’s] visitors to smuggle marijuana into the prison is sufficient evidence under the “some evidence” standard of review enunciated in MCI v. Hill, supra, to uphold the decision to sanction [the inmate]. Although the evidence of [the inmate’s] involvement in the attempted smuggling is not compelling, the inference is reasonable that he, at some time, communicated to his daughters a willingness to receive such contraband. There is thus some evidence in the record to support the committee’s decision, and so, under the federal standard of review, [the inmate’s] sanction should be upheld.
Id. at 357.
Similarly, in Haney, an inmate had been sent a package containing
Suboxone pills, but prison staff intercepted the package before he could receive it.
-6- 430 S.W.3d at 256. The inmate, like McKinnie, faced the charge of promoting
dangerous contraband, among other offenses, and an adjustment officer found him
guilty of the offense. Id. at 258. This Court affirmed a circuit court’s decision and
agreed “that none of the offenses [was] possessory offenses; the fact that [the
inmate’s] Suboxone pills were intercepted before [he] received them has no
bearing on the offenses with which [he] was charged.” Id. at 258.
Here, McKinnie does not challenge the fact that he was present during
the events of February 12, 2023, nor the positive alcohol test results. He only
argues that the evidence was not reliable enough for Officer Parsons to find him
guilty of possession or promoting dangerous contraband. Since video footage
revealed that McKinnie never touched the items that contained the alcoholic liquid,
he argues that video footage should have outweighed the unreliable evidence listed
in Officer Parsons’s findings of fact. However, while evidence of possession
would also support a finding of guilt, the offense Officer Parsons found McKinnie
guilty of merely required promotion of dangerous contraband. See id. at 257-58.
When reviewing “[p]rocedural and evidentiary standards . . . in the
prison disciplinary context[,]” we give a high degree of “judicial deference [] to
prison disciplinary bodies[,]” and it is not our role to weigh the evidence relied
upon by those disciplinary bodies. See id. Therefore, we will not consider the
weight of the video footage as McKinnie urges us to do. The evidence that Officer
-7- Parsons based his finding on (i.e., Officer Wright’s incident report, security reports
that described the recovery and testing of the unknown liquid, photographic
evidence of the positive alcohol test, and the chain of evidence form) meets the
“some evidence” standard. Given the minimal amount of due process required and
the low bar of the some evidence standard, we cannot agree with McKinnie. See
Haney, 430 S.W.3d at 257-58; see also O’Dea, 939 S.W.2d at 357.
Finally, because McKinnie’s claim that his liberty interest in the
processes established and required by the CPP depended on his unreliable evidence
argument, we need not address that argument any further. Accordingly, Officer
Parsons based his finding of guilt on sufficient evidence, and McKinnie has not
“raise[d] [any] specific, genuine issues of material fact sufficient to overcome the
presumption of agency propriety, and the [EKCC] is entitled to judgment as a
matter of law.” O’Dea, 939 S.W.2d at 356.
CONCLUSION
For the reasons stated herein, we AFFIRM the judgment of the
Franklin Circuit Court.
ALL CONCUR.
-8- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Simeon McKinnie, pro se Peter W. Dooley West Liberty, Kentucky Frankfort, Kentucky
-9-