RENDERED: MAY 19, 2023; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky Court of Appeals

NO. 2022

- CA

- 0623

- MR
JOHNNY REVLETT APPELLANT

v. APPEAL FROM LYON CIRCUIT COURT

HONORABLE JAMES R

. REDD, III, JUDGE ACTION NO. 22

- CI

- 00006

SCOTT JORDAN, WARDEN APPELLEE

OPINION AFFIRMING
**   **  **
BEFORE: CETRULO, DIXON, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Johnny Revlett , p ro s e , appeals from the April 14, 202 2 , O rder of Dismissal entered by the Lyon Circuit Court dismissing his petition for declaratory relief

. W e affirm. 1

1 We note there are numerous deficiencies in Johnny Revlett’s brief including the failure to include a preservation statement of the issues raised on appeal , in violation of Kentucky Rule s of Appellate Procedure (RAP) 32(A) . Due to the record’s relatively concise nature and the readily evident issues on appeal, we exercise our discretion to ignore the deficiencies and review on the merits. See RAP 31(H)

.- 2

- BACKGROUND Revlett is an inmate at the Kentucky State Penitentiary (KSP) in Eddyville, Kentucky . On July 2, 2021, he received a d isciplinary w rite

- u p for a physical altercation with another inmate . The write

- up state d that the

“ investigation determined, through witness interviews deemed reliable by substantiated physical evi dence, that [another inmate] and [Revlett] were in a physical altercation on June 26th in the boiler room.” Write Up and Disciplinary form at 1. On July 26, 2021, a n i nvestigati ve report was submitted which concluded there was evidence to support a charg e against Revlett for “ [p] hysical action resulting in injury to another inmate.” Write Up and Disciplinary form at 3. A disciplinary hearing was held on August 10, 2021 , after which Revlett was found guilty and sanctioned to fifteen days of disciplinary segregation . Revlett filed an appeal with W arden Scott Jordan, who upheld the finding on August 17, 2021.

On February 7, 2022, Revlett filed a petition for a declaration of rights with the Lyon Circuit Court asserting his due process right s were violated

. The primary argument asserted by Revlett in his petition and brief filed in this appeal is that the evidence presented at the disciplinary hearing was not sufficient to establish he was involved in a physical altercation with another inma te. This , coupled with his sentence of fifteen days in disciplinary segregation , deprive d him of a protected liberty interest

. T he c ircuit c ourt dismissed the petition pursuant to- 3

-

Kentucky Rule s of Civil Procedure (CR) 12.02(f) on the basis Revlett faile d to “demonstrate that his segregation assignment constitutes a liberty interest to which constitutional due process protections apply.” Order of Dismissal at 3. This appeal followed.
STANDARD OF REVIEW

A motion to dismiss for failure to state a claim i s governed by 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 mo tion to dismiss “unless it appears the pleading party would no t 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).

However, our standard o f review requires us to recognize that “[ p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” Webb v. Sharp , 223 S.W.3d 113, 117 (Ky. 200 7 ) ( quoting Wo lff v. McDonnell , 418 U.S. 539, 556 ( 1974)). And, “ [ p ] rison disciplinary proceedings are not criminal prosecutions; and punishment is imposed as warranted by the severity of the offense in order to correct and control inmate behavior within the prison.”- 4

-

Conover v. Lawless , 540 S.W.3d 766, 768 (Ky. 2017) ( quoting Ramirez v. Nietzel , 424 S.W.3d 9 11, 916 (Ky. 2014)). Accordingly, the standard of review in prison disciplinary proceedings is highly deferential to prison administrators. Smith v. O’Dea , 939 S. W.2d 353, 357 (Ky. App. 1997).
ANALYSIS Kentucky courts have adopted the “some evidence” standard in the course of review ing prison disciplinary proceedings. Houston v. Fletcher , 193
S.W. 3 d 276, 278 (Ky. App. 2006). This form of review was set out by the United States Supreme Court in Superintendent, Massachusetts Correctional Institution, Walpole v. Hill , 472 U.S. 445 (1985) ; Smith , 939 S.W. 2 d at 358

. In Houston , we highlighted the U.S. Supreme Court ’s directive :

[T] he requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits. This standard is met if “there was some evidence from which the conclusion of the administrative tribunal could be deduced

. . . .” 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 support the conclusion reached by the disciplinary board.
Houston , 193 S.W.3d at 278 ( quot ing Walpole , 472 U.S. at 455

- 56 )

.

We have thoroughly reviewed the record on appeal including the prison Write Up and Investigation form and the Hearing/ Appeal report. Clearly- 5

-

there was “some evidence” presented sufficient to establish that Revlett was
involved in a physical altercation with another inmate resulting in injury to said inmate in violation of applicable Kentucky Correction Policies and Proce dures. Any arguments raised by Revlett regarding the sufficiency of evidence presented during the disciplinary hearing are without merit.

As concerns his due process arguments, Revlett has failed to demonstrate that he was deprived of a protected liberty interest. “ In order to prevail on a Fourteenth Amendment procedural due process claim, a party must establish (1) that he enjoyed a protected ‘ liberty ’ or ‘ property ’ interest within th e meaning of the Due Process Clause, and (2) that he was denied the process due him under the circumstances. ” Marksberry v. Chandler , 126 S.W.3d 747, 749 (Ky. App. 2003) (citation omitted)

. “ A protected liberty interest may arise from two

sources

– the Due Process Clause itself and state law or regulations. ” Id. “ In addition to the existence of language guiding or restricting the discretion of prison officials, an inmate must now establish that the condition imposes atypical and significant hardship on th e inmate in relation to the ordinary incidents of prison life .” Id. at 750 (internal quotation marks and footnote citation omitted).

“ [ D ] isciplinary segregation typically does not implicate a liberty interest protected by the Due Process Clause itself because it is the sort of confinement an inmate can reasonably anticipate receiving .” Id. at 749

- 50. Factors related to the duration or- 6

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degree of restriction are relevant in determination s regarding whether restrictions imposed are “atypical and significant.” Id. at 750 (citing Sandin v. Conner , 515 U.S. 472, 484 (1995) )

. While these determinations involve factual issues, “ the ultimate issue of atypically is a legal issue subject to de no vo review. ” Id. (footnote citation omitted).

R evlett argues his punishment was atypical since his classification level was increased , and consequently , he was subjected to more restrictive confinement along with the curtail ment of various privileges comp ared to what he enjoyed at his previous classification level , resulting in a significant hardship

. This argument is also without merit . I t has been expressly held that “ i nmates do not have a constitutional right to a particular security classification or to be housed in a particular institution

. ” Marksberry , 126 S.W.3d at 751 (footnote citation omitted)

. And , “ [s] imply because disciplinary segregation involves different physical conditions and limited privileges does not mean that a pri soner maintains a liberty interest in freedom from that form of segregation .” McMillen v. Kentucky Dep ’t of
Corr

. , 233 S.W.3d 203, 205 (Ky. App. 2007) (citation omitted). Furthermore, there is absolutely no evidence to establish that a duration of fiftee n days in disciplinary segregation constitutes a significant hardship

. We also note that Revlett failed to plead any other facts demonstrating the conditions of his segregation “ were more onerous, harsh or restrictive than those applicable to- 7

-

inmates norm ally assigned to disciplinary segregation .” Marksberry , 126 S.W.3d

at 751.
F or the foregoing reasons, we affirm the O rder of Dismissal of the Lyon Circuit Court , dismissing Revlett’s Petition for Declaration of Rights.

ALL CONCUR.
BRIEF FOR APPELLANT: Johnny Revlett, P ro S e Eddyville, K entucky BRIEF FOR APPELLEE: Robert Chaney Frankfort, K entucky