RENDERED: NOVEMBER2, 2017 TO BE PUBLISHED

# ~uprttttt 

# filnurl 

# of**~tnfutk\!**

JANET CONOVER, WARDEN AND KRISTINE GOETZINGER, ADJUSTMENT OFFICER 2016-SC-000320-DG



## v. ON REVIEW FROM COURT OFAPPEALS CASE'NO. 2015-CA-000039-MR SHELBY CIRCUIT C.OURT NO. 14-CI-00550
KRISTY LAWLESS APPELLANTS

APPELLEE

OPINION OF THE COURT BY JUSTICE CUNNINGHAM REVERSING
This is a prison discipline·case ix:ivolving a fight between two inmates in which a Corrections officer was injured. Oneofthe inmates involved in the altercation, Appellee, Kristy Lawless, was disciplined**~s** a result ofthe officer's injury
.. She appealed that disciplinary determination through the appropriate channels and eventually exhausted her appeals as a matter ofright resulting in
a decision by the Court ofAppeais ruling in her**fa~or.** For the forgoing reasons, we reverse the decision ofthe Court ofAppeals and reinstate the trial court's order denying Lawless' petition.

### Background In 2014, Appellee, Kristy Lawless, and Remonia Mills were inmates at the Kentucky Correctional Institute for Women (KCIW). Mills had previously· assaulted Lawless and was labeled as "maximum assaultive status." On February 24, 2014: Mills violently attacked Lawless during recreation time. Two Corrections officers, Officer Jessica Evans and SergeantTimothy Schmid, intervened to breakup the altercation.,· Officer Evans was injured. Officer Evans subsequently filed a·disciplinary report claimingthat Lawless kicked her in the knee during the fight. As a result of**th~** report, an investigation commenced and Lawless was charged with a disciplinary violation-physical actions resulting in death or injury to an employee. Adjustment Officer (AO), Kristine Goetzinger, conducted a hearing in March 2014. At the hearing, Lawless denied kicking Officer Evans and stated that she
was**~erely** trying to defend herselffrom Mills. Lawless requestedthatAO
. Goetzinger review the security

### ~ideo that

### do~umented the fight. She als.o presented statements from two witnesses. One statementwas from the other Corrections officer who responded to the ·altercation. ·That**offic~r** confirmed that Lawless was attempting to defend herselfand was**coope~ative** once Mills
was separated from her. The officer made no mention ofOfficer Evans'injury. The second statementwas from another irimate claiming that she did not witness Lawless strike Officer Evans and that Lawless was as compliant as possible.

2After considering the evidence, AO Goetzinger found Lawless guilty ofthe charged disciplinary offense and sentenced her to 365 days in segregation and 1,321 days oflost good-time credit. AO Gbetzinger's findings state in pertinent part as follows:· Inmate stated that Officer Evans was inthe middle ofbreakingup the fight and is questioning how the officer could determirie who caused the injury to her. Inmate states that she was compliant, justlike [Sergeant Schmid's] statementis saying, but that the other.inmate was not compliant·.
. . . Due to this report from [Officer Evans] that injury was caused from this inmate while trying to separate a physical altercation, I am going to find her guilty ofthis charge. Lawless appealed to the Warden, who affirmed but reduced**h~r** punishment to 180 days in segregation and 199 days oflost good-time credit. Lawless then filed a prose declaration ofrights action againstWarden Conover and AO Goetzinger in Shelby·Circuit Courtwherein she argued that the disciplinary proceedingviolated her FourteenthAmendmentright to due process. Approximately

# two weeks later, AO Goetzinger executed an affidavit

. . stating: 1) she reviewed the surveillance video perLawless'request; 

### 2) nothing in the camera footage altered her determination th.at Lawless was guilty; and 3) ·thather determination was not based on the camerafootage but rather on the

· statement ofthe officer (victim) regarding who injured her. Two days later, the**~ircuit** court dismissed Lawless' petition finding that she had "received due process and there is some evidence in the record to support the finding ofthe adjustmerit officer." The court did not discuss the surveillance video which apparentlywas not in the record. Lawless appealed

.the court's decision to the Court·ofAppeals which,' in a spilt opinion, reversed 3the trial court's order dismissing Lawless' petition. The Court of_Appeals remanded the case to the trial court and ordered the court review and consider the surveillance video
..Warden Conover and AO Goetzinger (Appellants), appealed to this Court.I Standard ofReview ) "[P]rison disciplinary proceedings are not criminal prosecutions_; and '-" ·punishment is imposed as warranted by the**~everity** ofthe offense in order to correct and control inmate behaviorwithin the·prison." 

### Ramirez v. Nietzel, 424 S.W.3d 911, 916 (Ky. 2014). Generally**s~eaking,** due process is satisfied if"the findings ofthe prison disciplinary board are supported by some evidencein the

I • record
...." 

### Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 454 (1985). "The primary inquiry is 'whether there is any evidence in the record that could support the conclusion reached by the disciplinary**board~"'** 

### Ramirez, 424 S.W.3d at 917 (citation omitted). With this minimalstandard in mind, we now turn to the merits ofthe present case. Analysis The primary issue in this case is whether Lawless' procedural due

. process rights were violated. That issue is squarely resolved by our holding in.



### Ramirez: When a prisoner maintains that he was denied a meaningful opportunity to present a defense due to [an AO's] refus_al to consider exculpatory evidence, then procedural due process requires a [circuit] court to conduct an 

### in camerareview·ofthe
After the parties filed theirbriefs, Lawless'filed a motion to strike a portion ofAppellants'reply brief. That**moti~n** is hereby denied. 4evidence to determine whether it wa·s indeed exculpatory and whether, in light ofthe new evidence, "some evidence" existed for the AO's finding ofguilt. 

### Id. at 920 (quoting 

### Felder v. McBride, 121 Fed.Appx. 655, 656-57 (7th Cir.2004)). In applying our:holding in 

### Ramirezto the present facts, it is clear that Lawless was-not denied a meaningfulopportunity to con.sider exculpatory evidence-the surveillance video. In fact, the AO submitted an affidavit specifically addressirig thatvideo. Although she executed the affidavit after she rendered

·her disciplinary decision! she suppleme:r:ited her findings in a timely manner

and in compliance with the due process dictates discussed in 

### Ramirez
.. Any
error that may have occurred here was harmless. Moreover, the AO was very clear that she based her disciplinary decision on the statement ofthe officer

. . (victim). That certainly satisfies the "som(;! evidence" standard adopted by the '
. \ United States SupremeCourt.· 

### Walpole, 472 U.S
. .at 454. Therefore, there was
no .error requiring reversal ofthe AO's decision. A secondary**issu~** discussed at length by the Court ofAppeals concerns what steps the 

### circuit court must take in order to satisfy due process. The Court ofAppeals read 

### Ramirezto 

### require that the circuit court review allegedly

.exculpatory evidence and to document its finding based on tqat evidence. !
. However, 

### Ramirezmakes no such pronouncement. 

### Ramirezis distinguishable from this casebecause "the AO denied [Ramirez's] request" to introdμce surveillance-camerafootage ofthe incident. 

### Ramirez, 424 S.W.3d at 915. We held that "an AO mustreview security footage

5ifan inmate requests such review[.]" 

### Id. at 920. The trial court'sreview in 

### Ramirezwas- necessary only because Ramirez's due process right to request in
camerareview was denied by the AO, which was not the case here. It appears that the Court ofAppeals in the present case read 

### Ramirezin the context of 

### Fo,ley v. Haney, 345 S.W.3d 861 (Ky. App. 2011). 

### Foley concerned an AO's failure to review allegedly exculpatory cafeteria and medical records, and to make other necessary findings. 

### Id. at 864. The court**he~d** the AO denied the inmate due process by failing to review the records. On remand; the 

### Foley court orderedthe AO to rev:iew the allegedly exculpatory recorc;ls, indicate that he reviewed the records in his written

-· finding, and·describe whether the_records**confirrn.~d** or contradicted the inmate's narrative. 

### Id. at 866. Because 

### Ramirezwas published after 

### Foley, the Court ofAppeals determined that 

### Ramirezimplicitly reaffirmed 

### Foley.. The Court ofAppeals then extended 

### Foley to apply not only to AO decisions, but also the review.ofthose decisions by the circuit court. Itis therefore necessary to Clarify our decision in 

### Ramire_z and how it relates to 

### Foley. '1n order to satisfy due process, AOs must do the following when requested by an inmate to review allegedly exculpatory evidence that.is

..reasonably accessible and available for review: 1) review allegedly exculpatory

records; 2) indicate that she reviewed the records in herwritten finding; and 3) .· consider the impact ofthat evidence when rendering h_er decision. That

· standard was satisfied in the present case by the AO's timely execution ofa

. .

supplemental affidavit. 6For appeals before the circuit court, however,**~uch** findings are not necessary. Rather, the circuit courtis required to review the allegedly exculpatory evidence in the event the AO failed to do so. In the absence ofa· dispute concerningwhetherthe AO considered allegedly exculpatory evidence, "[t]he primary inquiry [ofthe circuit court] is 'whether there is any evidence in the record that could supportthe conclusion reached by the disciplinary board.m 

### Ramirez, 424 'S.W.3d at 917 (citation omitted).·That st.andard was satisfied here. ·Lastly, the Court of.Appeals discussed an issuethat neither party briefed-who. is responsible for transmitting the record in prison disciplinary
cases. The court determined that the burden was upon the Department of Corrections. Because this issue was not raised before the circuit court or by the parties,

# we need not discuss it here. Conclusion For the foregoing reasons, we hereby reverse the decision ofthe Court of Appealsand reinstate the trial court's order denying Lawless'petition. Minton, C.J.; Hughes, Keller, Venters, and Wright, JJ.; sitting. All coricur. VanMeter, J., not sitting.
COUNSEL FORAPPELLANTS: AngelaTurner Dunham Justice and Public Safety Cabinet COUNSEL FORAPPELLEE: Heather Hodgson Assistant Public Advocate 7