RENDERED: APRIL 15, 2022; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky Court of Appeals

NO. 2019

- CA

- 1890

- MR
TROY COX APPELLANT

v. APPEAL FROM BOYLE CIRCUIT COURT

HONORABLE DARREN W. PECKLER, JUDGE

ACTION NO. 19

- CI

- 00340

KATHLENE KENNY APPELLEE

OPINION AFFIRMING
**   **  **
BEFORE: COMBS, LAMBERT, AND K. THOMPSON, JUDGES.
TH OMPSON, K., JUDGE: Troy Cox , an inmate at the Northpoint Training Center (NTC) , appeals from the Boyle Circuit Court’s dismissal of his declaratory judgment action in which he requested a review of a prison disciplinary proceeding. For the reasons set forth herein, we affirm.

On December 29, 2018 , prison authorities found two orange film strips which were identified as S uboxone . The strips were located on top of Cox’s- 2

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locker under his television. Cox was charged with possession or promoting dangerous contraband

. Corrections Policies and Procedures (CPP) 15.2 (Category VI) (3) classifies possessing or promoting dangerous contraband as a m ajor

v iolation. The CPP defines dangerous contraband in conformity with Kentucky
Revised Statutes ( KRS ) 520.010(3) which inclu des “any controlled substance [

. ] ” Suboxone, a trade name for b uprenorphine , is a controlled substance and is listed
as S chedule V narcotic analgesic. Although legitimately prescribed by physicians in the treatment of addiction, Suboxone is itself subject to widespread abuse

.

Cox’s disciplinary hearing was conducted o n January 3, 2019

. N either Cox nor his counsel called any witnesses or made any statements. The
NTC adjustment committee found Cox guilty , divest ed him of 60 days of good
time credit , and assessed him fifteen days of disciplinary segregation

.

Cox filed a petition for declaration of rights with the Boyle Circuit
Court against NTC Warden Brad Adams (the warden) , Adjustment Officer Allyson Lambert, and Kathleen Kenny

. On September 17 , 2019, w hile Cox’s petition was pending, the warden conducted a review of the matter and determined to vacate Cox’s loss of good time credit leaving him t o only serve fifteen days of disciplinary segregation

.

The r espondents filed a motion to dismiss based upon the fact that, once Cox’s loss of good time credit was vacated, C ox could no longer claim- 3

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deprivation of a protected liberty or property interest and, therefore, his claims

were moot. The circuit court grant ed the motion

. In its order of dismissal, the
circuit court noted that an inmate has no constitutional right to be held in a prison’s general population and do es not possess a protected property interest in freedom from segregation.

On appeal, Cox argue s th at the “ NARK II ” field test used to
determine the substance found was insufficient , on its own , to sustain his
conviction and argues that no proper foundation was laid for establishing the accuracy of the test or whether the test was properly conducted. Cox also argues that his conviction should not “escape judicial review” only because his good time credits were ultimately restored , claiming such actions are arbitrary and capricious in violation of Section 2 of the Kentucky Constitution

.

W e are authorized to affirm the lower court ’s decision for any reason supported by the record. Emberton v. GMRI, Inc

. , 299 S.W.3d 565, 576 (Ky. 2009)

. Di smiss al of Cox’s petition pursuant to Kentucky Rules of Civil
Procedure ( CR ) 12.02(f) for failure to state a claim upon which relief can be granted is a pure question of law . T herefore , an appellate court reviews such

matter s de novo

. Fox v. Grayson , 317 S.W.3d 1, 7 (Ky. 2010)

.

W hile “prisoners do not shed all constitutional rights at the prison gate,

. . . [d]iscipline by prison officials in response to a wide rang e of misconduct- 4

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falls within the expected perimeters of the sentence imposed by a court of law.” Sandin v. Conner , 515 U.S. 472, 485, 115 S.Ct. 2293, 2301, 132 L.Ed.2d
418 (1995)

. W hen a prisoner establishes a valid liberty interest that is entitled to protection, “the implementation of procedural safeguards in the punishment for rule infractions must be tempered by the serious concern for prison security and the safety of both inmates and staff.” Webb v. Sharp , 223 S.W.3d 113, 118 (Ky. 2007)

. When due process protection is warranted is based upon the consequences of inmate discipline

.

CPP 10. 2 addresses the restrictions associated with the special management or special housing of inmates including those of disciplinary segregation . Re strictions under special management include reduced canteen and telephone privileges but allow inmates the opportunit y to shower and shave not less than three times weekly, and to exercise outside the cell for one hour a day five days a week. I nmates still retain the same opportunities as the general population to meal service, access to barber and hair care, and to receive and send
mail. They also have access to legal materials, reading and writing materials, and
visitation. Importantly, as in Sandin , there are no differences in the conditions between the various special housing types. Therefore, Cox did not suffer “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin , 515 U.S. at 484, 115 S.Ct. at 2300

. In applying this test and- 5

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ruling that the prisoner had no right to due proce ss before he was subjected to thirty days of disciplinary segregation, the Court in Sandin determined that the prisoner ’ s punishment through disciplinary segregation “mirrored those conditions imposed upon inmates in administrative segregation and protecti ve custody[,]” and “did not exceed similar, but totally discretionary, confinement in either duration or degree of restriction.” Id. at 486, 115 S.Ct. at 2301

. N umerous other cases have held that segregation for periods exceeding the 15 days served by Cox , with harsher conditions than those imposed under the Kentucky CPP , did not rise to the level of atypical and /or significant hardship

. See Marksberry v. Chandle r , 126 S.W.3d 747, 750

- 51 n.16 (Ky.App. 2003)

.

In his last argument, Cox relies on Black v. Department of
Corrections , No. 2017

- CA

- 001048

- MR, 2018 WL 4050538, at *1 (Ky.App. Aug. 24, 2018) (unpublished) , for the suggestion that the NARK II test should be
considered per se insufficient to support his conviction. In Black , th is Court noted
that the record in a marijuana possession case did not establish that the corrections officer conducting the test foll owed procedure or that the results of the NARK II

test were reliable

. Those matters became issues for the Court of Appeals only
because Black , at his hearing, denied possession of the substance and challenged
the field test results . Thus, t he test and the circumstances around it became issues of fact for the hearing committee subject to later judicial review

. Here, however,- 6

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neither Cox nor his counsel: (1) ever denied the substance found was Suboxone ; (2) ever objected to the use of, or re sults of, the NARK II test ; or (3) ever denied that the substance found belonged to Cox. By such inaction, any belated objection
to the test or its results was effectively waived. No one at NTC was required to lay
any additional pro forma foundation for the test or its accuracy if the ultimate finding, that the substance confiscated from Cox was Suboxone, was never question ed

.

In Webb , the Kentucky Supreme Court went on to consider whether
there was other evidence in addition to a field test to establish the substance confiscated from inmates was marijuana. The Court affirmed the convictions
because the inmates ’ reactions to the substances being discovered indicated contraband and “the inmates elected not to testify or assert that the su bstance was not what the officers believed it to be.” Webb , 223 S.W.3d at 120

. See White v. Boards

- B ey , 426 S.W.3d 569, 576 (Ky. 2014) (explaining that a prisoner’s silence can be considered against a prisoner in a prison disciplinary hearing). Under th ose circumstances, the Court ruled that even with the field tests excluded , it was “common sense” that there was “some evidence” to support the decision reached by the hearing officers. Webb , 223 S.W.3d at 121

.

Similar to the prisoners in Webb , t here is nothing in Cox’ s conduct or the record before us to make us question that the substance recovered was anything- 7

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other than contraband. The record here contains nothing other than evidence supporting the verdict reached.

Finally, p ursuant to Superintendent, Massachusetts Correctional Institution, Walpole v. Hill , 472 U.S. 445, 454, 105 S.Ct. 2768, 2773, 86 L.Ed.2d
356 (1985) , we find that Cox’s due process rights were ade quately protected . In
Hill , it was established that m inimum due process requirements are met if “the findings of the prison disciplinary board are supported by some evidence in the record.” Id

. at 45 4 , 105 S.Ct. at 27 73

. In applying th is “some evidence” standard, the Court noted that the “relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplina ry board.” Id

. at 455

- 56, 105 S.Ct. at 27 74

. A s such, we are unable to ascertain any procedural due process violations or arbitrary conduct in violation of Section 2 of the Kentucky
Constitution from the record before us.

Accordingly, we affirm the Boyle Circuit Court ’ s order of dismissal
of Cox’s petition seeking a declaration of rights for failure to state a claim on which relief can be granted.

ALL CONCUR

. BRIEF FOR APPELLANT: Troy Cox, pro se Burgin, Kentucky BRIEF FOR APPELLEE: Kristin Wehking Frankfort, Kentucky