Swafford v. McKune

263 P.3d 791, 46 Kan. App. 2d 325, 2011 Kan. App. LEXIS 123
CourtCourt of Appeals of Kansas
DecidedAugust 26, 2011
Docket104,965
StatusPublished
Cited by2 cases

This text of 263 P.3d 791 (Swafford v. McKune) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Swafford v. McKune, 263 P.3d 791, 46 Kan. App. 2d 325, 2011 Kan. App. LEXIS 123 (kanctapp 2011).

Opinions

Bruns, J.:

Artis Swafford, an inmate at Lansing Correctional Facility (LCF), appeals the district court’s denial of his K.S.A. 60-1501 petition. He contends that his due process rights were vio[326]*326lated during the course of a prison disciplinary proceeding. For the reasons set forth below, we affirm.

Factual and Procedural Background

Swafford was accused of lewd acts and misconduct with a female visitor in a visiting room at LCF on July 26, 2009. The incident was witnessed by two prison officers who were viewing monitors displaying images from the visiting room. In the disciplinary report, which was served on tire same date, Swafford was charged with “reaching] his hand into his visitor’s shirt sleeve to fondle her right breast” in violation of K.A.R. 44-12-315 and K.A.R. 44-12-321.

Prior to the disciplinary hearing, Swafford moved to dismiss the charges set forth in the disciplinary report. The motion was denied and the matter proceeded to hearing. In addition, Swafford filed an “Inmate Request for Witness” on July 29, 2009, in which he requested certain documents.

The disciplinary hearing began on August 3, 2009, and the hearing officer denied Swafford’s request for documents. The hearing officer did, however, grant Swafford a continuance so that he would have the opportunity to request the video from the surveillance camera. Two days later, on August 5,2009, Swafford filed a second “Inmate Request for Witness,” seeking:

“Video or digital description of the alleged violation of law or rule, from the medium visiting room, as is described in disciplinary report #258. Requesting to be allowed to personally review the video during the hearing, or have the hearing officer review the video outside of my presence during the hearing and be provided a summary of the content of the video, so that questions and follow-up questions may be asked.”

The following day, Swafford filed another request asking that the video be made available for the hearing, which was scheduled to resume at 1 p.m. on August 10, 2009.

At the disciplinary hearing, Swafford testified on his own behalf, but he did not challenge the sufficiency of the evidence against him, nor did he present any documentary evidence. Rather, Swafford argued that he had not been adequately informed of the charges against him because reaching under his visitor’s sleeve “to [327]*327fondle” her breast, as alleged in the disciplinary report, was substantially different from actually fondling her breast.

Officer E. Zamora, who had written the disciplinary report on July 26, 2009, testified that he “witnessed [Swafford’s] hand go up [the visitor’s] shirt and he was fondling her breast.” Likewise, Officer Jenkins testified that he was watching the visiting room on the monitor and also saw Swafford “put his hand up [the visitor’s sleeve], reach up, and touch her breast.” Although Swafford had the opportunity to cross-examine the officers, it appears from the record that he did not do so.

At the conclusion of the disciplinary hearing, Swafford was found by the hearing officer to be guilty of violating K.A.R. 44-12-315 and K.A.R. 44-12-321. A $20 fine was imposed in addition to other sanctions. In a written decision, the hearing officer explained that his findings and conclusions were “[b]ased on the facts provided by video evidence that clearly shows inmate Swafford[’s] hand go into his visitor[’s] sleeve” and “upon having [his] hand in her shirt[J it is clear also . . . that inmate Swafford was fondling his visitor[’s] breast.” The hearing officer further explained that the testimony of Officer Zamora also “made it clear that inmate Swafford was fondling the breast of his visitor.”

On August 14, 2009, the hearing officer’s decision was approved by the warden. On appeal to the Secretary of Corrections the finding of a violation of K.A.R. 44-12-315 was approved and the finding of a violation of K.A.R. 44-12-321 was disapproved. On December 3,2009, Swafford filed a petition in district court pursuant to K.S. A. 60-1501. The K.S.A. 60-1501 action was initially dismissed for failure to exhaust administrative remedies. It was later reinstated, and Swafford filed an amended petition alleging various due process violations.

On April 6, 2010, the district court held an evidentiary hearing on the amended petition. At the hearing, Swafford testified that he believed that there was not a “sufficient charge” asserted against him and that he had not been given an adequate opportunity to present “documentary evidence” during the disciplinary proceeding. Swafford argued that he should have been allowed to see the [328]*328security video, and he claimed that the heating officer had never reviewed the videotape.

On April 26, 2010, the district court entered a memorandum decision in which it denied the K.S.A. 60-1501 petition and dismissed the case. In doing so, the district court found:

“[T]he appellate courts of Kansas have directed that the procedure to be followed by the hearing examiner during disciplinary hearings, as well as the general rule, [is] that prison officials are given flexibility in executing internal prison policies and procedures. Anderson v. McKune, 23 Kan. App. 2d 803, 937 P.2d 16 (1997). K.A.R. 44-13-403 directs the hearing officer, to die extent possible, discover the truth regarding charges against the inmate. If the hearing officer decides to review security video, . . . ‘the inmate shall not be present when the hearing officer reviews any facility security videotape evidence/ Further that regulation permits the hearing officer to bring out the facts by direct or cross-examination.”

The district court concluded that the State had met the “some evidence” standard for prison disciplinary proceedings set forth in Sammons v. Simmons, 267 Kan. 155, 158-159, 976 P.2d 505 (1999). The district court also found that “[t]he testimony bore out that there was actual touching” of the visitor’s breast in violation of the lewd acts regulation. Thus, the district court denied the K.S.A. 60-1501 petition, and Swafford timely appealed to this court.

Issue Presented and Standard of Review

On appeal, the issue presented is whether Swafford’s procedural due process rights were violated during the course of the prison disciplinary proceeding. The question of whether due process under the Fourteenth Amendment to the United States Constitution exists in a particular case is a question of law. See In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, Syl. ¶ 4, 24 P.3d 128 (2001).

Due Process Requirements

An appellate court gives broad deference to prison officials in maintaining discipline in prison settings. See Anderson v. McKune, 23 Kan. App.

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Swafford v. McKune
263 P.3d 791 (Court of Appeals of Kansas, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
263 P.3d 791, 46 Kan. App. 2d 325, 2011 Kan. App. LEXIS 123, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swafford-v-mckune-kanctapp-2011.