RENDERED: OCTOBER 14, 2022; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth o f Kentucky Court of Appeals

NO. 2021

- CA

- 1270

- MR

CAMERON MERRITT APPELLANT

APPEAL FROM OLDHAM CIRCUIT COURT

v. HONORABLE JERRY D. CROSBY
, II , JUDGE ACTION NO. 21

- CI

- 00183

SARAH FERGUSON, WARDEN, ROEDERER CORRECTIONAL COMPLEX ; AND CHRISTOPHER WRIGHT
, AD JUSTMENT OFFICER APPELLEES

OPINION REVERSING AND REMANDING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; CETRULO AND K. THOMPSON
, JUDGES.

CETRULO , JUDGE: Cameron Merritt (“Merritt”) , an inmate at the Roederer
Correctional Complex (“Roederer”)
, 1 appeals, pro se , from an order of the Oldham

1 As of the filing of this appeal, Merritt was an inmate at Little Sandy Correctional Complex

.- 2

-

Circuit Court dismissing his petition for declaratory judgment pursuant to KRS 2

418.040. 3 After careful review, we reverse and remand

.
FACTS
In September 2020, Merritt

– in an attempt to prank fellow inmates

– sprayed baby oil on the floor of a doorway of Unit 2, E Wing of Roederer. Merritt

admits this action
, and his movements are shown on video surveillance. While
conducting a security round, Kentucky Department of Corrections (“ DOC ”)
Officer Calhoun (“Officer Calhoun”) slipped on the b aby oil. T he briefs do not

state that Officer Calhoun f e ll to the ground when she slipped
, but she was later

“sent for outside medical treatment.” Following the incident, Officer Calhoun

finished her rounds and advised the inmates that someone should clean up the oil ;

Merritt did so

.

Merritt received a disciplinary write

- up charging him with a violation

of Corrections Policy and Procedure (“CPP”) 15.2 Category VII Item 04. A
disciplinary hearing was held by an Adjustment Officer
, and Merritt was assessed

with 30 days in disciplinary segregation and the loss of 1,460 days ( four years) of

2 Kentucky Revised Statute.

3 “ In any action in a court of record of this Commonwealth having general jurisdiction wherein it is made to appear that an actual controversy exists, the plaintiff may ask for a declaration of rights, either alone or with other relief; and the court may make a binding declaration of rights, whether o r not consequential relief is or could be asked.” KRS 418.040.- 3

-

non

- restorable good time, 730 days ( two years) of which were suspended for 180
days. Merritt appealed to the W arden, who denied the appeal. Merritt then sought
judicial review and filed a petition for declaratory judgment in Oldham Circuit

Court. Thereafter, the circuit court granted Roederer’s 4 motion to dismiss Merritt’s
petition fo r failure to state a claim pursuant to CR 5 12.02(f). This appeal followed.

PROCEDURE

“A petition for declaratory judgment pursuant to KRS 418.040 has

become the vehicle, whenever Habeas Corpus proceedings are inappropriate,
whereby inmates may seek review of their disputes with the Corrections
Department.” Smith v. O’Dea , 939 S.W.2d 353, 355 (Ky. App. 1997)

. Although

Roederer filed a motion to dismiss in response to Merritt’s petition, rather than a
motion for summary judgment, this C ourt has held that summary judgment
standards and procedures are most appropriate in these cases. 6 However, the
typical summary judgment standard is insufficient to address the administrative

di scretion involved in the Department of Corrections ’ disciplinary procedures.

4 We will refer to the Appellees as “Roederer” because the named appellees, the Warden and Adjustment Officer, are named in their official capacity.

5 Kentucky Rule of Civil Procedure.

6 “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. . . . [W]e believe that a motion for summary judgment provides, in most ca ses, the most appropriate procedure and standards for addressing these petitions.” Smith , 939 S.W.2d at 355 n.1

.- 4

-

T his C ourt has described the applicable standard for addressing prison disciplinary

actions as follows:

Where, as here, principles of administrative law and appellate procedure b ear upon the court ’ s decision, the usual summary judgment analysis must be qualified. The problem is to reconcile the requirement under the general summary judgment standard to view as favorably to the

non

- moving party as is reasonably possible the facts and any inferences drawn therefrom, with a reviewing court ’ s duty to acknowledge an ag ency ’ s discretionary authority, its expertise, and its superior access to evidence. In these circumstances we believe summary judgment for the Corrections Department is proper if and only if the inmate ’ s petition and any supporting materials, construed in light of the entire agency record (including, if submitted, administrators ’ affidavits describing the context of their acts or decisions), does not raise specific, genuine issues of material fact sufficient to overcome the presumption of agency propriety, and the Department is entitled to judgment as a matter of law.

Id. at 356.

“These petitions thus present circumstances in which the need for
independent judicial fact [

- ] finding is greatly reduced. The circuit court ’ s fact

finding capacity is required only if the administrative record does not permit
meaningful review.” Id. Accordingly, the circuit court presumed that Roederer
acted appropriately in denying Merritt’s petition, and that order may only be

reversed if Merritt ca n raise specific, genuine issues of material fact that overcome
that presumption.- 5

- ANALYSIS
On appeal, Merritt argues that he should have been charged with
violating CPP 15.2 Category VII Item 001

– p hysical action against an employee

or non

- inmate

– n ot Item 004

– p hysical action resulting in the death or injury of

an employee or non

- inmate. Merritt admits his action but argues that there was no

evidence of a resulting injury to a DOC employee ; he argues that sending Officer
Calhoun for a medical assessment was proof of a policy , not an injury

. To the

contrary, Roederer claims that “seeking of medical treatment is sufficient evidence

for the a djustment o fficer to infer that the officer who slipped on the baby oil
sustained some injury.” The circuit court agreed with Roederer and found “some
evidence” to be supported by 1) camera footage showing Merritt spraying the baby

oil
, and 2) the note that Officer Calhoun had to seek outside medical treatment.

First, we must acknowledge 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. ” Wolff v. McDonnell , 418 U.S. 539,

556
, 94 S. Ct. 2963, 2975, 41 L. Ed. 2d 935 (1974) (citation omitted). This
princip le is reflected in the “some evidence” standard adopted in Smith : if any
evidence in the record supports the conclusion made by the disciplinary board, we

must affirm. Smith , 939 S.W.2d at 358

. “ Even ‘ meager ’ evidence will suffice.”

Ramirez v. Nietzel
, 424 S.W.3d 911, 917 (Ky. 2014) ( citing Superintendent, Mass

.- 6

-

Corr. Inst., Walpole v. Hill , 472 U.S. 445, 4 5 7 , 105 S. Ct. 2768, 2775, 86 L. Ed. 2d

356 (1985) )

. More s pecifically, b ecause Merritt was sanctioned as a result of

“ injuring ” Officer Calhoun, there must be “some evidence,” any evidence
, of an
injury. Id

. “ Admittedly, our review of prison disciplinary cases is materially

limited. But a review so limited as to be meaningl ess cannot satisfy the
requirements of due process.” Id. at 91 6 . D espite the se “ meager ” requirements,

we cannot find any evidence that an injury occurred.

In 1997, this C ourt found an inference to be sufficient to satisfy the

“some evidence” standard. Smith , 939 S.W.2d at 357. I n Smith
, an inmate’s
family member was found to have marijuana during a pre

- admission search. Id. at

355. A t a disciplinary hearing , the Adjustment Officer determined that although
the inmate disavowed any knowledge of the contraband, the inmate likely knew of
or requested the marijuana

. Id. Upon appeal, this C ourt determined that
“[a]lthough the evidence of [the inmate’s] involvement in the attempted smugg ling
is not compelling, the inference is reasonable that he, at some time, communicated
to his daughters a willingness to receive such contraband.” Id. at 357.

Here, however, there is no such reasonable inference. I f the

surveillance video had shown Officer Calhoun fall to the ground, grab her back,
walk with a limp
, or cry out

– after the slip

– then we could infer that she was
injured. However , the video shows no fall to the ground, no outward gesture of- 7

-

pain, n or was there testimony that she cried out or complained

. Further, t here were
no medical records presented nor testimony of what “the injury” was. There was

no evidence presented to explain if Roederer had a policy of sending employees for
precautionary medical examinations or if only an actual injury warrant ed such

action.
Additionally, the Smith Court accepted an inference as “some

evidence
, ” in part, because it understood the importance in a prison’s ability to
maintain authority.

Prisons are a vital part of the government ’ s effort to preserve social order and domestic tranquility. They provide this fundamental benefit, however, only at the cost of becoming places where the risk of disorder and violence is greatly heightened.

. . . . In a prison, where a state of emergency and high alert is unrelieved, any defect in the administration ’ s authority poses a risk of disruption

.
Id. at 357

- 58.

We wholeheartedly agree ; however
, we note two very dramatic

factual distinctions

. First, t he Smith Court appropriately determined that a prison
administration has a compelling interest in order and in authority, especially when
weighed against an inmate’s loss of “ relatively minor interests (in slightly reduced
sentences, for example, or marginally mit igated conditions of confinement).” Id.- 8

-

at 358. In contrast, Merritt’s losses were not “minor” ; he lost four years of good

time credit. Second, i llegal drugs and/or contraband

– as in Smith

– pose a serious
risk to the “social order and domestic tranquility” of a prison system. Baby oil
lacks that same gravitas

.

In 2003, this Court again addressed an inmate appeal of disciplinary

action in Yates v. Fletcher , 120 S.W.3d 728 (Ky. App. 2003). In Yates
,
correctional officers found a four

- pound can of tuna that was stolen from the
kitchen and loose sugar in a creamer container in an inmate’s bed area. Id. at 729.

The inmate received disciplinary write

- up s for possession of stolen state property

and for obtaining goods under false pretenses. Id

. A hearing by the Adjustment

Committee found the inmate guilty of both charges and assessed forfeiture or the

loss of 60 days good time on each charge

. Id

. This Court determined that although

he was not present at the time of the tun a discovery, he had constructive possession
over it because it was found in his laundry bag. Id . at 730. As it relate d to the

creamer, the inmate admi tted it was there and that he knew it was sugar in the

creamer container. Id

. at 731.

We agree with the holding in Yates ; that the institution had presented

“some evidence” that was sufficient to affirm the disciplinary action of 60 days
good time for each theft. However, h ere we lack any evidence of injury

. T hat void

becomes especially glaring when compared to the relatively major loss of inmate- 9

-

interest
, compared to other Kentucky precedent. For example, in Million v.
Raymer
, 139 S.W.3d 914 (Ky. 2004)
, an inmate pled guilty to an inappropriate
relationship with a correctional officer and was found guilty of a contraband
charge, and the institution penalized him with the loss of 180 days of accumulated
good time, 180 days of telephone restriction, and 90 days in disciplinary
segregation. Id

. at 916. After a successful appeal to the W arden, a second hearing

found the inmate “ guilty of the contraband charge but his penalty was reduced to
54 days in segregatio n, which he had already served. ” Id.

Therefore, a genuine issue of material fact exists

– whether any injury

resulted from Merritt’s actions

– and consequently, Roederer is not entitled to
judgment as a matter of law. Consequently, we must conclude the court erred by
granting Roederer ’s motion to dismiss. We simply remand for the circuit court to

address that issue.

CONCLUSION

Accordingly, for the reasons stated herein, we REVERSE the
judgment of the Oldham Circuit Court and REMAND for further proceedings

consistent with this O pinion.

ALL CONCUR

.

BRIEF S FOR APPELLANT:

Cameron Merritt, pro se Sandy Hook, K entucky BRIEF FOR APPELLEE:
Edward A. Baylous II Frankfort, K entucky