1 NOT DESIGNATED FOR PUBLICATION

No

. 124,020

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

L EROY B OWERS , Appell ant ,

v.

B ARTON C OUNTY S HERIFF B RIAN B ELLENDIR , Appell ee

.

MEMORANDUM OPINION

Appeal from Barton District Court; S TEVEN E. J OHNSON , judge. Opinion filed January 28 , 2022

. Reversed and remanded with directions

.

Bradley T. Steen , of Law Office of B. Truman Steen, LLC , of Ellsworth , for appellant.

No appearance by appellee

.

B efore M ALONE , P.J., P OWELL and I SHERWOOD , JJ.

P ER C URIAM : Leroy Bowers filed a petition pursuant to K.S.A. 60

- 1501 while being held in pretrial detention at the Barton County Detention Facility. The petition claimed that jailers conspir ed to plant drugs on him, inmates taunted him as being a " CI "
and a " child molester, " and jailers denied his request to be moved when he was assaulted by three inmates over the course of six and a half hours. The district court summarily denied the petition and Bowers timely appealed. On appeal, Bowers argues the district

c ourt erred because he alleged facts that established a due process violation as well as a
claim of deliberate indifference. The district court's order of dismissal bears no indic a tion
it considered B owers ' claim that jailers neglected to intervene when he was threatened2 and later attacked by several other inmates. Because those allegations support claims of
relief based on the denial of a liberty interest, as well as deliberate indifference to his
well

- being, the district court's refusal to consider them constitutes error. Accordingly,
Bowers ' case is reversed and remanded with instructions that a writ be issued to compel a response from the State.

F ACTUAL AND P ROCEDURAL B ACKGROUND

In March 2021, Bowers filed a pro se habeas petition under K.S.A. 2020 Supp. 60

- 1501 while in pretrial custody at the Barton County Detention Center. He alleged that he
faced cruel and unusual punishment , sought immediate release , and requested dismiss al
of his charges with prejudice. In the petition, Bowers explained that jailers refused to assist him with legal research, threatened to plant drugs in his property bag , and accused him of being a " child molester. " Finally, he described an incident where several other
inmates threatened to attack him, so he requested to be relocated . Jailers ignored his pleas, his would

- be assailants made good on their threats and Bowers endured a six and a
half h our beating. He stated that jail officials pulled him aside a week later and inquired
about the incident, but he did not feel safe enough to speak freely.

The district court summarily dismissed Bowers ' petition and offered the following in support of its conclusion:

"While the petition is extremely difficult to decipher, it is apparent he does not feel he is being treated fairly when it comes to interaction with other inmates and claims that jailers
have threatened to frame him for dru g possession. He does not indicate that any of these actions have occurred, and the most he can assert in regards to any actual fact is that he feels uncomfortable and threatened . Not only is he seeking release from pretrial detention, he is seeking relief of dismissal of the charges against him. This is relief that cannot be obtained through habeas corpus, and further, the facts do not justify his pretrial detention release. If he has grounds for release, he should seek them through the criminal actions ag ainst him." (Emphasis added.)3 Bowers timely appeal ed. His appointed counsel filed an appellate brief on his
behalf but Respondent, Barton County Sheriff Brian Bellendir, never submitted a brief.

The matter is now before us and requires an analysis of th e propriety of the district
court's summary denial of Bowers' claims

.

D ID T HE D ISTRICT C OURT E RR I N S UMMARILY D ISMISSING B OWERS ' K.S.A. 60

- 1501 P ETITION ?

On appeal, Bowers argues that his petition should not have been summarily dismissed because jailer s at the Barton County Detention Facility were " deliberately
indifferent " toward his safety.

Standard of Review

This court exercises unlimited review over summary dismissal of a K.S.A. 60

- 1501 petition

. Johnson v. State , 289 Kan. 642, 649, 215 P.3d 575 (2009). " Whether the district court correctly construed a pro se pleading is a question of law subject to
unlimited review. " State v. Gilbert , 299 Kan. 797, 802, 326 P.3d 1060 (2014).

Issuance of Writ

K.S.A. 60

- 1501 petitions provide prisoners an opportunity to " attack the conditions of [their] confinement. " Shepherd v. Davies , 14 Kan. App. 2d 333, 335, 789 P.2d 1190 (1990). K.S.A. 2020 Supp. 60

- 1503(a) provides:

" (a). Issuance

. The petition shall be presented prom ptly to a judge in the district court in accordance with the procedure of the court for the assignment of court business. The petition shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the petition and a ny exhibits attached thereto that the plaintiff is not entitled to relief in the district court, the petition shall be dissolved at the cost of the4 plaintiff. If the judge finds that the plaintiff may be entitled to relief, the judge shall issue
the writ a nd order the person to whom the writ is directed to file an answer within the period of time fixed by the court or to take such other action as the judge deems appropriate."

A district court may summarily dismiss a K.S.A. 60

- 1501 petition if the allegati ons are not " of shocking and intolerable conduct or continuing mistreatment of a
constitutional stature. " Johnson , 289 Kan. at 648. " Summary dismissal is appropriate if, on the face of the petition, it can be established that petitioner is not entitled to relief, or if, from undisputed facts, or from uncontrovertible facts, such as those recited in a court record, it appears, as a matter of law, no cause for granting a writ exists. " 289 Kan. at
648

- 49.

On appeal from that decision, the appellate court's " task is to accept as true the allegations in [the] petition in order to determine if the facts alleged and their reasonable
inferences state a claim for relief. " Schuyler v. Roberts , 285 Kan. 677, 679, 1 75 P.3d 259 (2008). " The court must determine whether the alleged facts and all their inferences state a claim, not only on the theories which the plaintiff espouses, but on any possible theory. " Hill v. Simmons , 33 Kan. App. 2d 318, 320, 101 P.3d 1286 (20 04). Additionally, reviewing courts " broadly construe" pro se petitions. Laubach v. Roberts , 32 Kan. App. 2d 863, 868, 90 P.3d 961 (2004).

Thus, the analysis of whether Bowers ' K.S.A. 60

- 1501 petition may be dismissed

must begin by accepting as true the allegations set forth in Bowers ' initial K.S.A. 60

- 1501 petition. The district court failed to do this. Rather, i n its order of dismissal, when discussing the petition's factual allegations, the district court found that " it is apparent [Bowers] does not f eel he is being treated fairly when it comes to interaction with other inmates and claims that jailers have threatened to frame him for drug possession. " Thus far, this is a n accurate reading of the petition.5 The district court erroneously concluded that Bowers " does not indicate that any of these actions have occurred and the most he can assert in regard to any actual fact is
that he feels uncomfortable and threatened. " While it is true that Bowers experienced
both these states , page five of his petition also includes a specific allegation that a jailer ignored his pleas for protection from an impending assault a n d, as a result, on February 25, 2021, he endured a nearly seven

- hour beating at the hands of other inmates who accused him of being a " child molester " and a " CI. " Bowers ' petition also stated that detention facility offici al s attempted to interview him about a week after the assault
occurred , but he was too afraid to speak openly about it. The district court's order omits these allegations.

The district court addressed the remedies sought by Bowers, pretrial release or
dismissal of the charges against him. The court found that the facts did n ot warrant release from custody and, further, that a habeas corpus petition was not the proper vehicle through which to obtain dismissal of his charges.

K.S.A

. 2020 Supp. 60

- 1505(d) outlines the appropriate remedies in a habeas
action:

"(d) Judgment

. If the court determines that the restraint is not wrongful, the writ shall be dissolved at the cost of the plaintiff. If the restraint is found to be wrongful, the judgment shall be either that the person shall be released , or that custody shall be
transf erred to some other person rightfully entitled thereto, and the court may make such other orders as justice and equity or the welfare of a minor physically present in the state may require." (Emphasis added.)

So Bowers ' requests for relief were not entir ely precluded as a matter of law

. See
In re Horst , 270 Kan. 510, 14 P.3d 1162 (2000) (discussing the right to be released from custody in relation to a K.S.A. 60

- 1501 petition ). As a reviewing court, we have the obligation to accept Bowers ' allegations as true. Thus, we must assume then that his6 request for release arose from the fact that jailers in his detention facility possessed knowledge about the impending assault against Bowers but made the conscious decision
to not intervene.

The next step in our analysis is to determine whether these alleged facts and their reasonable inferences give rise to a claim for relief. Schu yler , 285 Kan. at 679

. Importantly, the alleged facts can support any theory of relief

. Thus, this court's analysis is not limited to the arguments raised by Bowers in his initial petition

. See Hill , 33 Kan. App. 2d at 320

.

As noted above, a K.S.A. 60

- 1501 petition must allege " shocking and intolerable conduct or continuing mistreatment of a constitutional stature. " Johnson , 289 Kan. at
648. The " shocking and intolerable conduct " language " derives from the Fourteenth Amendment to the United States Constitution, which prohibits the states from depriving persons of ' life, liberty, or property, w ithout due process of law. '" 289 Kan. at 649 ( quoting U.S. Const. amend. XIV, § 1). A two

- pronged due process analysis is required , (1) whether the State deprived Bowers of life, liberty or property and (2) what is the extent and nature of the process to w hich he is entitled

. See Johnson , 289 Kan. at 649.

Bowers contends that the jail conditions of which he complained implicate a liberty interest. A liberty interest may emanate from two potential sources, state law or
the Due Process Clause of the Fourtee n th Amendment

. Chubb v. Sullivan , 50 Kan. App. 2d 419, 426, 330 P.3d 423 (2014). Bowers argues that both provide a foundation for his
claim. He first directs our attention to Schuyler and its holding that a liberty interest could be implicated when conditions are imposed that lead to " a significant hardship on the inmate in relation to the ordinary incidents of prison life. " Schuyler , 285 Kan. at 682. He
also cites to K.S.A. 19

- 1919 and its mandate that " all prisoners shall be treated with
huma nity. "7 A federal district court rejected a similar state law driven argument and Bowers has not provided us with any authority from the Kansas Supreme Court where they assumed the opposite stance. See T ennant v. Miller , No. 13

- 2143

- EFM, 2014 WL 289497, at *3 (D. Kan. 2014). When detention facility guards turn a blind eye t o an hours long attack that inmates perpetrate against another inmate, such an incident constitutes a significant hardship compared to the ordinary course of prison life. Accepting such facts as true here, Bowers articulated a claim rooted in the liberty i nterest contemplated by the
Fourteenth A mendment.

There are other constitutional roads a petitioner may opt to travel in pursuit of relief, beyond the Fourteenth Amendment . For example, several claims filed under
K.S.A. 60

- 1501 are grounded in accusation s that prison officials violated the Eighth Amendment by engaging in deliberate indifference toward a prisoner's medical needs.
See Stolte v. Cummings , 31 Kan. App. 2d 639, 70 P.3d 695 (2003); Darnell v. Simmons , 30 Kan. App. 2d 778, 48 P.3d 1278 (2002); S pry v. Pryor , No. 119,573, 2019 WL 638266 (Kan. App. 2019) (unpublished opinion); James v. McKune , No . 102,979, 2010 WL 446064 (Kan. App. 2010) (unpublished opinion).

Bowers uses this alternative approach and argues the deliberate indifference standard is equally a pplicable to the failure to protect inmates from violence and harm.
Alt hough he cites no Kansas authority to support his assertion, he does highlight a case
from the Ten th Circuit Court of Appea ls that is favorable to his position, Hooks v. Atoki , 983 F.3d 1193 (10th Cir. 2020). In that case, Hooks argued that Officer " Atoki exhibited deliberate indifference by failing to intervene during a vicious, gang

- related jailhouse
assault. " 983 F.3d at 1196

. While the court u ltimately rejected Hooks ' argument , it
nevertheless clarified that deli berate indifference is not restricted to the medical treatment

context. 983 F.3d at 1196. See also Contreras on behalf of A.L. v. Dona Ana County Board of County Commissioners , 965 F.3d 1114 , 1115

- 22, 1125

- 41 (10th Cir. 2020) (Tymkovich, C.J., concurring); (Baldock, J., concurring in part ) (includes two separate8 discuss ions regarding the viability of deliberate indifference in the context of a guard's failure to protect inmates ).

A broader application of deliberate indifference makes logical s ense , given that a primary case relied on by Kansas courts in the medial mistreatment context, Farmer v.
Brennan , 511 U.S. 825, 828

- 30 , 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994), involved the allegation of an Eighth Amendment violation that arose after Far mer was raped and beaten by a cellmate. The C ourt explained that " [a] prison official's ' deliberate
indifference ' to a substantial risk of serious harm to an inmate violates the Eighth
Amendment. " 511 U.S. at 828; se e also State v. Scott , 265 Kan. 1 , Syl. ¶ 1, 961 P.2d 667 (1998) ( " The Cruel and Unusual Punishment Clauses of the Eighth Amendment to the
United States Constitution and § 9 of the Kansas Constitution Bill of Rights are nearly
identical and are to be construed similarly. " ).

Kansas courts have therefore looked favorabl y upon Farmer when conducting a deliberate indifference analysis. The governing test includes objective and subjective components

. Cupples v. State , 18 Kan. App. 2d 864, 869 , 861 P.2d 1360 (1993)

. " The objective component is met if the deprivation is ' sufficiently serious. '" Darnell v.
Simmons , 30 Kan. App. 2d at 781 ( quo ting Farmer , 511 U.S. at 834). The Farmer C ourt clarified that for claims " based on a failure to prevent harm, the inmate must show that he
is incarcerated under conditions posing a substantial risk of serious harm. " Farmer , 511
U.S. at 834. " The subjective component is met if a prison official ' knows of and disregards an excessive risk to inmate health or safety. '" 30 Kan. App. 2d at 781 ( quot ing
Farmer , 511 U.S. at 837)

.

We acknowledge that, o ver time, courts have st ruggled to define parameters for
deliberate indifference. In Cupples , this court approvingly quoted the Tenth Circuit's explanation of the theory in Berry v. City of Muskogee , 900 F .2d 1489 , 1495 (10th Cir. 1990), that deliberate indifference requires more than negligence and that " an official or9 municipality acts with deliberate indifference if its conduct (or adopted policy) disregards a known or obvious risk that is very likely to result in the violation of a prisoner's constitutional rights. " 1 8 Kan. App. 2d at 869. Inmates need not show intentional harm.
Farmer , 511 U.S. at 835. See also Strain v. Regaldo , 977 F.3d 984, 991 (10th Cir. 2020) ( " deliberate indifference often stems from inaction. " ).

A panel of this court recently noted that Judge Posner described deliberate indifference by analogy:

"'Prison employees who act with deliberate indifference to the inmates' safety violate the Eighth Amendment. But to be guilty of ‘deliberate indifference’ they must know they are creating a substantial risk of bodily harm. If they place a prisoner in a cell that has a cobra, but they do not know that there is a cobra there (or even that there is a high probability that there is a cobra there), they are not guilty of deliberate indifference even if they should have known about the risk, that is, even if they were negligent

— even grossly negligent or even reckless in the tort sense

— in failing to know. Bowers v.
DeVito , 686 F.2d 616, 618 (7th Cir. 1982). But if they know that there is a cobra there or at least that there is a high probability of a cobra there, and do nothing, that is deliberate
indifference. Farmer v. Brennan , 511 U.S. 825 , 835 , 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994) ; Miller v. Neathery , 52 F.3d 634, 638 (7th Cir. 1995).' Billman v. Indiana Dep't of
Corrections , 56 F.3d 785, 788 (7th Cir. 1995)." Astorga v. Leavenworth County Sheriff , No. 122,387, 2020 WL 6533282, at *9 (Kan. App. 2020) (unpublished opinion).

With a ll this guiding authority in mind, our task is to resolv e whether the facts in
Bowers ' case, coupled with their reasonable inferences, give rise to a claim of deliberate
indifference. We find the objective prong is satisfied because Bowers endured a n extensive physical attack at the hands of three other inmates. Such an attack is properly
characterized as sufficiently serious because Bowers liv ed in condition s that subjected
him to a serious risk of harm. We likewise conclude the subjective prong is f ulfilled
bec ause Bowers explained that he notified the jailers when he was threatened with10 assault, and they sat idly by. Thus, detention officials knew of and disregarded an
excessive risk to Bowers ' safety.

As a result, the allegations set forth in Bow ers ' initial K.S.A. 60

- 1501 petition prompt two alternative theories of relief: one based on a Fourteen th Amendment liberty interest, and the other on deliberate indifference. The district court's order of dismissal failed to acknowledge the allegations t hat inmates assaulted Bowers and detention
officials declined to render assistance. K.S.A. 2020 Supp. 60

- 1503(a) clear ly states :

"If the judge finds that the plaintiff may be entitled to relief, the judge shall issue the writ and order the person to whom the writ is directed to file an answer within the period of time fixed by the court or to take such other action as the judge deems appropriate." (Emphasis added.)

The di strict court's incomplete reading of the petition led to its failure to acknowledge theories under which Bowers may have been entitled to relief. Summary
dismissal was therefore inappropriate. Th e district court's judgment must be reversed and
remand ed wit h an order to issue a writ that requires Bellendir to file an answer. See
K.S.A. 2020 Supp. 60

- 1503(a); see also Germann v. Conover , No. 110,643, 2014 WL 3397814, at *4 (Kan. App. 2014) (unpublished opinion) ( " Germann has sufficiently alleged due process v iolations in his 60

- 1501 petition to preclude summary dismissal. We, of course, express no view on whether those allegations can or will be substantiated or on the appropriate remedy if they were. The district court should not have summarily
dismissed the petition. " ).

Reverse d and remand ed with directions

.