WALLACE STEWART v. RANDY ECKMAN; and JASON COMBS
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RENDERED: June 16, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001401-MR
WALLACE STEWART
v.
APPELLANT
APPEAL FROM LEE CIRCUIT COURT
HONORABLE WILLIAM W. TRUDE, JR., JUDGE
ACTION NO. 04-CI-00129
RANDY ECKMAN; and
JASON COMBS
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
MINTON AND VANMETER, JUDGES; ROSENBLUM, SENIOR JUDGE.1
VANMETER, JUDGE:
Wallace Stewart appeals pro se from an order
entered by the Lee Circuit Court granting summary judgment in
favor of appellees Randy Eckman and Jason Combs in a prisoner
discipline matter.
For the reasons stated hereafter, we affirm.
On January 24, 2004, while incarcerated at the Lee
Adjustment Center, Stewart was visited by his wife, Benita
Stewart (Benita).
1
Benita obtained food items from the vending
Senior Judge Paul W. Rosenblum sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
machines in the visiting area, including a bag of pretzels which
she opened and handed to Stewart.
Stewart began eating the
pretzels, but he then jumped up and ran to the adjacent
restroom.
He was followed by Corrections Officer Bessie Hughes.
Hughes asserted that she called for backup assistance,
and Stewart ran to the restroom, after she saw him remove a
black object from the pretzel bag and place it into his pocket.
Hughes followed Stewart to the restroom, where he injured her
arm as he shut the restroom door against her.
By the time
Hughes entered the restroom, Stewart was holding his hand in the
toilet and was flushing it repeatedly despite being ordered not
to do so.
Stewart, by contrast, denied either possessing a
black object or intentionally shutting the door against Hughes.
He claimed that he ran to the restroom because he was choking on
a pretzel, and that he was flushing the toilet only because he
was leaning against it while trying to regurgitate the pretzel.
Shortly thereafter a black object, identified by
Hughes as being the item she observed in Stewart’s possession,
was retrieved from the sewer system downstream from the visiting
area restroom.
Examination of the object showed that it
consisted of black electrical tape wrapped around 38 pills which
the prison medical department identified as Oxycontin.
Benita
apparently admitted to institutional and local law enforcement
officials that she had brought the pills to Stewart, and a
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search of her car evidently revealed electrical tape and an
Oxycontin prescription bottle.
Benita was arrested, and Stewart
was placed into disciplinary segregation.
Prison disciplinary proceedings were conducted, and
Stewart was convicted of possessing dangerous contraband and
physical action against an officer, resulting in disciplinary
segregation and the forfeiture of good time.
The warden
concurred with the adjustment committee’s decision.
Stewart
then sought a declaration of rights by the circuit court, which
eventually granted appellees’ motion for summary judgment.
This
appeal followed.
Stewart alleges on appeal that the trial court erred
by granting summary judgment for appellees because (1) he was
denied proper advance notice of the adjustment committee
hearing, (2) the investigation of the alleged incident was not
properly conducted, and (3) the evidence was insufficient to
support the finding of guilt.
We disagree.
Contrary to Stewart’s contention, there is no genuine
issue of material fact2 as to whether he received the minimum
advance notice required by various provisions of Kentucky
Corrections Policy and Procedure (CPP) 15.6.
Those provisions
include requirements that at least twenty-four hours before a
hearing, an inmate must be provided with a copy of the
2
CR 56.03.
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disciplinary report,3 and with nonexcluded documents used by the
adjustment committee or adjustment officer.4
The inmate’s choice
of legal aide or staff counsel must be identified within
twenty-four hours of the inmate’s receipt of the completed
disciplinary report,5 and the inmate must identify any chosen
witnesses at least twenty-four hours before the initial hearing.6
Here, although Stewart claims that he was denied the
advance notice required before his adjustment committee hearing,
the record shows that he was given the required notice on
January 25, 2004, and that the hearing was scheduled for January
28.
The hearing was postponed to January 29, and it then was
conducted on February 9, 2004, so that Stewart would have time
to obtain legal assistance.
Given Stewart’s failure to name any
witnesses whom he intended to call at the hearing, we are not
persuaded by his argument that his notice rights were violated
either because he was placed in segregation, or because he was
unable to give sufficient notice of the hearing to his
witnesses.
We also are not persuaded that there is any genuine
issue of material fact relating to the adequacy of the
3
CPP 15.6(VI)C.4.b.(3)(b).
4
CPP 15.6(VI)C.4.b.(3)(c)(1).
5
CPP 15.6(VI)C.5.a.(1).
6
CPP 15.6(VI)C.5.a.(2).
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investigation of the incident.
Stewart asserts in his brief on
appeal that when the disciplinary report was read to him while
he was in segregation, he requested
that every person, or at least inmates,
present in the visiting room be listed as
his witnesses and then interviewed for their
opinions as to what they witnessed relevant
to the alleged incident that Stewart took
physical action against Officer Hughes. The
investigator listed Stewart’s request.
However, she wholly failed to contact the
visiting room officer on duty the date of
the alleged incidents so as to review the
log for the purpose of obtaining the names
of the inmates present on the date of the
alleged incident and then interview them and
take their statements. Thus, due to the lack
of a proper investigation, Stewart suffered
the substantial prejudice of not being [in]
the position to offer testimony that he did
not intentionally slam the restroom door on
Officer Hughes arm with the intent to cause
her any amount of injury.
Although the investigation report confirms Stewart’s claim that
he requested that all “visitation inmates and visitor[s]
visiting on 1-24-2004 be called as witnesses,” Stewart signed an
investigation report on January 25, 2004, stating that he
understood that it was his “responsibility to make arrangements
for inmate legal aide representation and witnesses” and that he
would “notify legal aid[e] of witnesses[.]”7
Given Stewart’s
clear responsibility under CPP 15.6(VI)C.5.a.(2) to identify his
7
See CPP 15.6(VI)C.5.a.(2), which requires an inmate to identify selected
witnesses, and CPP 15.6(VI)C.5.b., which provides that the failure to
identify witnesses “in accordance with this procedure shall constitute a
waiver.”
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own witnesses, coupled with the absence of any evidence to show
that he attempted to identify or call any witnesses at the
hearing, we cannot say that the trial court erred by failing to
grant relief on this ground.
Further, we are not persuaded that the evidence was
insufficient to support the findings of Stewart’s guilt as to
both charges.
Regardless of whether different conclusions might
have been drawn, the evidence certainly was sufficient to
satisfy the “some evidence” standard applicable to prison
disciplinary proceedings.8
Finally, Stewart asserts that the trial court erred by
failing to resolve his petition for a declaration of rights
within sixty days of this court’s order.
We disagree.
Stewart sought declaratory relief from the circuit
court in June 2004.
On March 9, 2005, a panel of this court
directed the circuit court to adjudicate all pending issues
within sixty days.
On May 4, which was still within the
sixty-day period, the circuit court directed that Stewart should
be permitted until May 16 to respond to appellees’ pending
motion for summary judgment.
After obtaining an enlargement of
time, Stewart responded to the motion on May 19.
The trial
court then granted appellees’ motion for summary judgment five
days later, on May 24, 2005.
8
See Superintendent, Massachusetts Correctional Institution v. Hill, 472 U.S.
445, 455, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356 (1985).
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Although the trial court obviously did not adjudicate
all issues within sixty days of March 9, 2005, the record
clearly shows that issues of noncompliance were waived when
Stewart sought two different delays so that he would have time
to respond to the pending motion for summary judgment.
An
earlier ruling would have required the trial court to act
without considering Stewart’s response to the pending motion,
which surely was not his intent or desire.
Thus, even though
the trial court did not adjudicate all issues within the
sixty-day period directed by this court’s prior order, under
these circumstances the delay was a justifiable one which
clearly worked to Stewart’s benefit and any objections were
waived.
We conclude, therefore, that Stewart is not entitled to
relief on this ground on appeal.
The court’s order is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Wallace Stewart, Pro se
LaGrange, Kentucky
G. Edward Henry, II
Lexington, Kentucky
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