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NOT DESIGNATED FOR PUBLICATION

No. 124,541

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

FREDERICK W. FRITZ IV,

Appellant,

v.

SAM CLINE, Warden,

Appellee.

MEMORANDUM OPINION

Appeal from Butler District Court; JOHN E. SANDERS, judge. Opinion filed January 20, 2023.

Reversed and remanded with directions.

Kristen B. Patty, of Wichita, for appellant.

Jocilyn B. Oyler, legal counsel, of Kansas Department of Corrections, for appellee.

Before ARNOLD-BURGER, C.J., GARDNER and CLINE,JJ.

PER CURIAM: Frederick W. Fritz IV appeals from the district court's denial of his 

K.S.A. 60-1501 petition challenging his confinement in administrative segregation. The 

district court held that Fritz failed to properly exhaust his administrative remedies before 

filing the petition because he did not appeal the administrative segregation classification 

within 72 hours of the decision per Kansas Department of Corrections (KDOC) rules. 

Fritz' petition, however, goes beyond challenging the initial decision to place him in 

administrative segregation. He also challenges the duration of the administrative 

segregation, which has been ongoing since 2017. The Kansas Supreme Court has held 

that duration is a factor that courts must consider in determining whether a K.S.A. 60-
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1501 petition demonstrates a liberty interest infraction. For this reason, we must reverse 

and remand the case to the district court to consider the duration of Fritz' segregation and 

whether such a lengthy segregation violates his liberty interest.

FACTUAL AND PROCEDURAL HISTORY

Fritz filed a K.S.A. 60-1501 petition with the Butler County District Court in 

October 2020. In it he challenged the decision of prison officials at El Dorado 

Correctional Facility (EDCF) to place him in administrative segregation, asserting that 

his transfer resulted from a vague other security risk (OSR) report that was essentially 

unchallengeable because it did not specify the allegations against him. He also challenged 

the duration of the segregation as excessive.

In July 2017, Fritz was ordered to spend 15 days in disciplinary segregation at 

EDCF after stabbing another inmate. When he completed disciplinary segregation in 

August 2017, he was served with an OSR report and placed on long-term administrative 

segregation. The OSR report, included as an exhibit with Fritz' petition, stated that Fritz 

was a validated member of a security threat group (STG) called the Country White Boys. 

It recommended administrative segregation because of the serious nature of the battery 

Fritz committed against the other inmate, the suspected STG involvement, and Fritz' use 

of weapons. The report also recommended transferring Fritz to Hutchinson Correctional 

Facility for long-term restrictive housing placement.

Fritz does not mention in his petition whether he took any action in the following 

year to challenge the administrative segregation decision. The next exhibit in the record is 

an administrative segregation review report from June 2018, which reveals that Fritz 

chose not to attend any reviews between August 2017 and June 2018. Fritz claimed in his 

petition that at the June 2018 hearing his unit team manager promised that he would be 
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transferred back to general population if he did not incur any disciplinary reports the next 

month.

Although he did not receive any disciplinary reports the next month, he was not 

transferred back into the general population. Instead, at the review hearing in July 2018, 

Randolph told Fritz that he would be placed in holdover and transferred to general 

population at a different prison. He said Fritz could not enter general population at EDCF 

because there was "a central monitor between him and an unnamed staff member 

preventing him from being released at EDCF." The administrative segregation review 

from July 2018 also states that Fritz needed to be transferred because he had "a staff CM

issue at EDCF." Fritz was placed on holdover status in September 2018.

Prison officials served Fritz with a new OSR report in May 2019. Fritz was still on 

holdover status. Fritz also believed this OSR report was deliberately unspecific. The 

report, included as an exhibit with Fritz' petition, stated that the prison's investigation 

division was gathering intelligence which not only confirmed that Fritz was a member of 

an STG group, but that he was directly involved in the execution and orchestration of 

several acts of violence on behalf of the group. The most effective strategy for dealing 

with Fritz' violence and influence, the report said, was to keep him in long-term 

restrictive housing.

Fritz explained in his petition that he was dissatisfied with the OSR report because 

he believed he had completed his punishment for the battery he committed. So, he began 

"to regularly question his placement and the validity of the report." He raised his 

concerns during segregation reviews, during "rounds," and via request forms. Despite his 

attempts to get a more definite answer, Fritz remained in holdover.

In June 2020, still confined in holdover, Fritz filed a grievance with the prison 

asking for clarification on why he was placed in administrative segregation. The 
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grievance was denied because it raised a classification issue. He filed a separate 

grievance challenging the excessive length of his holdover stay. It was denied on the 

same grounds.

In his petition, Fritz argued that the vague nature of the OSR reports violated his 

right to due process because he was not afforded meaningful review of his administrative 

segregation status. He also argued that the vagueness of the allegations against him 

violated his due process right to notice and impaired his ability to defend against the 

allegations. He also asserted that the OSR reports failed to satisfy prison regulations 

which required prison officials to specifically state the reason an offender is placed in 

administrative segregation. Finally, Fritz asserted that the time he spent in holdover also 

violated prison regulations which provided that a prisoner should not be on holdover 

status for longer than reasonably necessary to accomplish a transfer to another facility.

Fritz claimed that he exhausted his administrative remedies by appealing his 

grievances and the denial of a transfer request to the Secretary of Corrections. He 

attached exhibits detailing his attempts to appeal to his petition.

Fritz concluded by accusing prison officials of engaging in "a disturbing level of 

deliberate conniving and a concerted effort by staff at EDCF to keep [Fritz] in 

segregation at all costs," even if it meant violating their own policies and Fritz' 

constitutional rights. At the time he filed his petition, he claimed he had been in 

administrative segregation for 784 days.

The district court summarily denied Fritz' motion in April 2021. The court held 

that under KDOC's Internal Management Policy and Procedure (IMPP) 11-106A, inmates 

must appeal classification decisions to the warden within 72 hours. Rather than utilize

this process, Fritz delayed nearly three years before challenging the classification. He 

also improperly used the grievance procedure to appeal the classification. Under K.A.R.
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44-15-101a(d)(2), the grievance procedure may not be used to appeal a classification 

decision. Accordingly, because Fritz failed to properly exhaust his administrative 

remedies, the district court found it was without jurisdiction to consider Fritz' petition.

Fritz appealed and moved for reconsideration the same day. His appeal was 

docketed with this court before the district court ruled on the motion for reconsideration, 

which resulted in this court remanding the case for a decision on the outstanding motion. 

On remand, the district court denied the motion. Now that the district court has issued a 

final decision, this court can consider the merits of Fritz' appeal.

Fritz was transferred to Lansing Correctional Facility (LCF) sometime in 2021. In 

his reply brief, Fritz clarified that he remains in administrative segregation at LCF, so the 

appeal is not moot. See Jamerson v. Heimgartner, 304 Kan. 678, 686, 372 P.3d 1236 

(2016) (noting that appeal was moot where inmate challenging confinement in 

administrative segregation was no longer in administrative segregation). At the time he 

filed his reply brief, he had been in administrative segregation for 1,858 days.

ANALYSIS

Fritz argues that the district court erred in summarily dismissing his petition. He 

asserts that the district court construed his claim too narrowly. His appeal goes beyond a 

challenge to transfer him to administrative segregation—a decision he concedes would 

have needed to be appealed in 72 hours. Fritz acknowledges that no constitutionally 

protected liberty interest is implicated when an inmate is transferred to a more adverse 

condition of confinement. See Jamerson, 304 Kan. 678, Syl. ¶ 2 ("A mere change in the 

level of an inmate's security classification within a prison does not constitute such a 

deprivation of a liberty interest that it will support a legal challenge by a prisoner."). 

Rather, Fritz is arguing that the duration of his confinement in administrative segregation 

has infringed on his due process liberty interests.
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A prisoner may attack the terms and conditions of his or her confinement as being 

unconstitutional through a petition filed under K.S.A. 60-1501. To state a claim for relief 

under K.S.A. 60-1501 and avoid summary dismissal, a petition must allege "shocking 

and intolerable conduct or continuing mistreatment of a constitutional stature." Johnson 

v. State, 289 Kan. 642, 648, 215 P.3d 575 (2009). The petition must also show that the 

inmate timely exhausted any available administrative remedies. K.S.A. 75-52,138. This 

court exercises unlimited review over summary dismissals of K.S.A. 60-1501 petitions. 

Johnson, 289 Kan. at 649.

Before bringing an action against the State, an inmate must exhaust his or her 

administrative remedies and file proof with the K.S.A. 60-1501 petition that the 

administrative remedies have been exhausted. K.S.A. 75-52,138. The KDOC regulations 

set forth a grievance procedure under which inmates first raise a grievance to their unit 

team, then submit the grievance to the warden, and finally appeal to the Secretary of 

Corrections. K.A.R. 44-15-102. The grievance procedure cannot be used "as a substitute 

for . . . the classification decision-making process." K.A.R. 44-15-101a(d)(2). The 

KDOC's IMPP governs custody classification. IMPP 11-106A provides that appeal from 

a custody classification can be accomplished by submitting an appeal to the warden 

through the inmate's team unit counselor within 72 hours of receiving the decision.

The district court held that Fritz should have appealed the classification within 72 

hours. This is accurate to the extent that Fritz is challenging the initial classification 

decision. But Fritz' challenge goes beyond the initial classification decision and includes 

the conditions caused by his extended confinement in administrative segregation. While 

an initial classification does not implicate due process concerns, "duration of segregated 

placement is a factor that courts must consider in determining whether an inmate has . . . 

demonstrate[ed] a liberty interest infraction." Jamerson, 304 Kan. at 685. The Kansas 

Supreme Court discussed the distinction between an initial classification and the duration 

of the classification and how it implicates due process in Jamerson. Though the relevant 
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portion of the Jamerson opinion is judicial dictum, it provides important guidance on the 

issue and should be afforded considerable weight. 304 Kan. at 686. So we will compare 

that case to the one before us.

After more than three years in administrative segregation, James Jamerson filed a 

K.S.A. 60-1501 petition challenging the basis for his confinement in administrative 

segregation. The district court summarily denied his petition after finding: (1) Jamerson 

failed to timely exhaust his administrative remedies, (2) placement in administrative 

segregation did not implicate constitutionally protected liberty interests, and (3) 

classification issues were best left to prison authorities.

A panel of this court found that the district court erred in holding that Jamerson 

failed to timely exhaust his administrative remedies. Jamerson followed the procedure in 

K.A.R. 44-15-102 for filing inmate grievances. Jamerson v. Heimgartner, No. 110,977, 

2014 WL 2871439, at *2-3 (Kan. App. 2014) (unpublished opinion), rev. granted 301 

Kan. 1046 (2015). But this court affirmed the district court on other grounds, agreeing 

that placement in administrative segregation alone did not implicate due process because 

it did not "amount to an 'atypical and significant hardship . . . in relation to the ordinary 

incidents of prison life.'" 2014 WL 2871439, at *3 (quoting Sandin v. Conner, 515 U.S. 

472, 484, 115 S. Ct. 2293, 132 L. Ed. 2d 418 [1995]). The court explained that Jamerson 

had "not outlined in his petition any substantially different restrictions placed on him in 

segregation, let alone the deprivation of essentials for a civilized existence. Jamerson 

argues only the duration of his placement—in excess of 1,000 days—as warranting 

habeas corpus relief." 2014 WL 2871439, at *3. Accordingly, the court found Jamerson 

failed to establish that a protected liberty interest was at stake and so no due process 

violation had occurred. 2014 WL 2871439, at *3.

The Kansas Supreme Court granted Jamerson's petition for review on the sole 

issue "of whether the duration of administrative segregation alone implicates an inmate's 
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due process liberty interest." Jamerson, 304 Kan. at 680. The court began by 

acknowledging that the issue was moot because Jamerson was no longer in administrative 

segregation. It found that exceptions to the mootness rule applied because the issue was 

one of statewide interest that was likely to arise again. 304 Kan. at 680. The court then 

"elect[ed] to set out certain contours for evaluating claims of constitutional liberty 

interests in the context of extended administrative segregation." 304 Kan. at 680.

The court began by noting that, although inmates are confined to prison, they 

"retain certain constitutionally protected liberty interests whose deprivation implicates the 

right to due process." 304 Kan. at 681. Though the range of protected liberty interests is 

narrow, one may "arise when prison authorities impose a restraint on a prisoner's already 

quite-limited freedom and the restraint is atypical and a significant hardship on the 

inmate in relation to the ordinary incidents of prison life." 304 Kan. at 681 (citing Sandin, 

515 U.S. 472). The court reaffirmed its previous holdings that an initial classification 

decision alone does not support a claim for relief. Jamerson, 304 Kan. at 682-83. The 

court clarified, however, that an inmate could still challenge the placement in 

administrative segregation when the placement "encroach[ed] on protected liberty 

interests." 304 Kan. at 682.

The court cited Wilkinson v. Austin, 545 U.S. 209, 125 S. Ct. 2384, 162 L. Ed. 2d

174 (2005), for its guidance on the issue of when placement in administrative segregation 

may implicate a protected liberty interest. 304 Kan. at 683. The Wilkinson Court 

identified three factors to consider in answering the question of "whether an institutional 

assignment infringes on a protected liberty interest: the harshness of the conditions, such 

as deprivation of human contact and environmental and sensory stimuli; the duration of 

the confinement; and disqualification for parole consideration." 304 Kan. at 683. Based 

on this case, the Jamerson court concluded that "duration is a factor to be considered in 

assessing the hardship that segregated custody places on an inmate" and "an inmate may 

proffer a lengthy term of segregation as evidence of hardship." 304 Kan. at 683-84.
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The court moved on to discussing federal cases that had considered claims that the 

duration of administrative segregation created an unconstitutional hardship for the 

inmate. 304 Kan. at 684-85. Some of those cases involved time periods even shorter than 

the one in this case. In Trujillo v. Williams, 465 F.3d 1210, 1225 (10th Cir. 2006), the 

court reversed the summary dismissal of a petition alleging that an inmate had been in 

administrative segregation for 750 days while other inmates were placed in 

administrative segregation for the most serious offenses for only 180 days. In Marion v. 

Columbia Correction Institution, 559 F.3d 693, 698-99 (7th Cir. 2009), the court held 

that the mere fact the inmate spent 240 days in disciplinary segregation warranted an 

evidentiary hearing to determine the actual conditions of segregation and remanded the 

case to the district court for further fact-finding. In Harden-Bey v. Rutter, 524 F.3d 789, 

792-93 (6th Cir. 2008), the court found that a prisoner's allegation that he spent more than 

three years in administrative segregation stated a cognizable due process claim and 

remanded the case for the district court to assess whether the nature and duration of the 

prisoner's segregation made the conditions atypical and a significant hardship on the 

prisoner in relation to the ordinary incidents of prison life. These federal cases contain 

several citations to other cases in which appellate courts remanded cases to the district 

court for additional factual development on similar claims.

Following its review of the caselaw, the Jamerson court found that courts must 

consider duration of segregated placement in determining whether an inmate has 

demonstrated a liberty interest infraction. 304 Kan. at 685. This determination could not 

be made on the face of Jamerson's petition alone because determining the point at which 

duration is extreme enough to encroach upon a protected liberty interest "requires 

specific inquiry and fact-finding by a district court to determine the specific conditions of 

the administrative segregation." 304 Kan. at 685. The court identified several relevant 

questions, including "the frequency of visitation, access to exercise or work programs, the 

degree of supervision, and how those conditions compare with the conditions of inmates 

in the general prison population." 304 Kan. at 685. When such facts are not developed 
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below, the remedy is "to remand for factual findings and corrected application of the law 

to those findings." 304 Kan. at 686. Had Jamerson's appeal not been mooted by his 

release from administrative segregation, the court believed that additional fact-finding

"would be particularly important . . . because the record simply does not contain a factual 

basis for evaluating whether the conditions of Jamerson's placement were 'atypical' and 

constituted a 'significant hardship in relation to the ordinary incidents of prison life.'" 304 

Kan. at 686.

The allegations here are similar to those in Jamerson. As in Jamerson, the record 

is scarce and insufficient to determine whether Fritz' confinement has reached the point 

where it constitutes a significant hardship relative to ordinary prison life. The Kansas 

Supreme Court has said how it would rule in a case like this—it would find that summary 

dismissal of the petition was erroneous and remand the case for additional fact-finding.

304 Kan. at 686. This court has followed that guidance in other cases. See Astorga v. 

Leavenworth County Sheriff, No. 122,387, 2020 WL 6533282, at *7 (Kan. App. 2020) 

(unpublished opinion) ("[W]e will remand to the district court for an evidentiary hearing 

to develop the facts and apply the Sandin and Jamerson factors to determine whether 

Astorga's administrative segregation infringes on a protected liberty interest."); Bohanon 

v. Cline, No. 114,302, 2016 WL 4585091, at *3 (Kan. App. 2016) (unpublished opinion) 

(same). Jamerson also aligns with federal caselaw on the subject. See Harden-Bey, 524 

F.3d at 793 ("[M]ost (if not all) of our sister circuits have considered the nature of the 

more-restrictive confinement and its duration in determining whether it imposes an 

'atypical and significant hardship.'"); Marion, 559 F.3d at 698-99 (noting that this 

proposition was "consistent with the decisions of our sister courts" and "[i]ndeed, other 

courts of appeals have held that periods of confinement that approach or exceed one year 

may trigger a cognizable liberty interest without any reference to conditions"). This court 

should also follow Jamerson's guidance.
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Jamerson demonstrates the flaw in the district court's holding here. It distinguishes 

between an initial administrative segregation classification, which must be appealed 

within 72 hours and does not implicate a liberty interest, with an administrative 

segregation so excessive in duration that it imposes an atypical and significant hardship 

on the inmate in relation to the ordinary incidents of prison life. Fritz' challenge falls into 

the latter category. Requiring such claims to be appealed to prison authorities within 72 

hours of the initial classification would be unreasonable because after only 72 hours the 

infringement on the inmate's liberty rights would not likely be apparent. "Exhaustion of 

administrative remedies is not required when administrative remedies are inadequate or 

would serve no purpose." In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, 

Syl. ¶ 2, 24 P.3d 128 (2001).

Fritz used the administrative remedy available to him—the grievance process. He 

adhered to the procedures set forth in K.A.R. 44-15-102 by filing a grievance with his 

unit team, timely appealing that grievance to the warden when he received an 

unsatisfactory answer, and finally timely appealing to the Secretary of Corrections as a 

final resort. It was error for the district court to dismiss Fritz' petition because he could 

only challenge the duration of his administrative segregation if he had appealed the 

classification within 72 hours of receiving it.

If, after examining the K.S.A. 60-1501 petition, the district court finds that the 

petitioner "may be entitled to relief," the court must issue a writ of habeas corpus and 

order the person to whom the writ is directed to file an answer. K.S.A. 2021 Supp. 60-

1503(a). Fritz' allegation that he has been in administrative segregation since 2017 may 

entitle him to relief. Further, his period of segregation appears to be indefinite as nothing 

in the record suggests when he may be released. Accordingly, the case is reversed and 

remanded to the district court to issue the writ, consider the Jamerson factors, and 

determine whether Fritz can establish that the State has impaired his liberty interest 

without affording him due process.
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Reversed and remanded with directions.