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NOT TO BE PUBLISHED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.

THOMPSON, 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 Suboxone. The strips were located on top of Cox’s 
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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 major 

violation. The CPP defines dangerous contraband in conformity with Kentucky 

Revised Statutes (KRS) 520.010(3) which includes “any controlled substance[.]” 

Suboxone, a trade name for buprenorphine, is a controlled substance and is listed 

as Schedule 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 on January 3, 2019. 

Neither Cox nor his counsel called any witnesses or made any statements. The 

NTC adjustment committee found Cox guilty, divested 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, while 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 to only serve fifteen days of 

disciplinary segregation. 

The respondents filed a motion to dismiss based upon the fact that, 

once Cox’s loss of good time credit was vacated, Cox could no longer claim 
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deprivation of a protected liberty or property interest and, therefore, his claims 

were moot. The circuit court granted 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 does not possess a protected property interest in freedom 

from segregation. 

On appeal, Cox argues that 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. 

We 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). Dismissal 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. Therefore, an appellate court reviews such

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

While “prisoners do not shed all constitutional rights at the prison 

gate, . . . [d]iscipline by prison officials in response to a wide range of misconduct 
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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). When 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. Restrictions under special management include reduced canteen and 

telephone privileges but allow inmates the opportunity 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. Inmates 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 
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ruling that the prisoner had no right to due process 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 protective 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. Numerous 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. Chandler, 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, this Court noted 

that the record in a marijuana possession case did not establish that the corrections 

officer conducting the test followed 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, the test and the circumstances around it became issues 

of fact for the hearing committee subject to later judicial review. Here, however, 
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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 results 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 

questioned. 

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 substance was 

not what the officers believed it to be.” Webb, 223 S.W.3d at 120. See White v.

Boards-Bey, 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 those 

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, there is nothing in Cox’s conduct or 

the record before us to make us question that the substance recovered was anything 
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other than contraband. The record here contains nothing other than evidence 

supporting the verdict reached. 

Finally, pursuant 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 adequately protected. In 

Hill, it was established that minimum due process requirements are met if “the 

findings of the prison disciplinary board are supported by some evidence in the 

record.” Id. at 454, 105 S.Ct. at 2773. In applying this “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 disciplinary board.” Id. at

455-56, 105 S.Ct. at 2774. As 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