J. LAMBERT, Judge.
Justin Kirk, proceeding pro se, has appealed from the decision of the Franklin Circuit Court dismissing his petition for declaration of rights in which he sought review of the penalties imposed by the Department of Corrections for rule violations he committed while at the Bluegrass Career Development Center. Finding no error, we affirm.
Kirk is currently in the custody of the Department of Corrections (DOC) as a result of his 2006 felony drug convictions in Simpson Circuit Court, for which he is serving a twenty-six-year sentence. In November 2012, Kirk was transferred to the Bluegrass Career Development Center (BCDC), a halfway house in Richmond, Kentucky. BCDC is run by the Bluegrass Regional Recycling Corp., which houses DOC inmates pursuant to a contract with the DOC. Through this placement, Kirk was assigned to work at the Telford Community Center YMCA in Richmond. The rule violations forming the basis of this appeal took place during the time he was working at the YMCA.
The first incident took place on June 21, 2013. That evening, two BCDC staff members performed an audit on a telephone Kirk was using, observing him through a camera. Larry Mitchell was listening in on a conversation between Kirk and an unidentified woman, who spoke about obtaining a membership at the YMCA where Kirk was working so that she could see and speak with him while he was there. Kirk also asked this woman where to get "spice," and she told him where it could be purchased. Kirk said that he would give her money to buy "spice" for him. At the end of the call, Kirk said that he would see her on Monday.
The second incident took place on the evening of June 25, 2013, when BCDC staff member Jacob Carter performed another telephone audit on Kirk while he was talking with the same women from the earlier audit. During this conversation, Kirk and the woman talked about their sexual exploits that had taken place that day at work. They had gone upstairs to a room and had sex multiple times. The woman said they would go to that room every day until she left, which was Thursday. Carter indicated that the woman might be an employee and was quitting in a few days. The woman also told Kirk that she thought she was pregnant. Kirk replied that they should not be talking about this subject because he was worried that he would be transferred to another location. YMCA staff member Steven Bailey investigated the location described in the conversation, and he found a curtain had been placed over a door window. In addition, he found napkins in the trash can with a substances appearing to be semen.
Disciplinary report forms were completed for both incidents in July 2013, and Kirk was charged with pursuing/having a non-correctional relationship with a non-inmate and inappropriate sexual behavior with another person. The reports included a copy of the visitation log from the Madison County Detention Center dated July 6, 2013, listing a female visitor for Kirk with the name of LaQueeta Penman. Ms. Penman was a volunteer at the YMCA when Kirk was assigned to work there.
Investigating Officer William Elam spoke with Kirk about the reports. Regarding the first incident, Kirk "had no statement denying the information in the report that he was talking to this woman on the phone about meeting her at the YMCA." Kirk made the same response related to the second incident. Kirk received copies of the reports and requested the audio recordings of the telephone conversations. A hearing was scheduled for July 22, 2013, and was later rescheduled for July 31, 2013.
At the hearing, Kirk entered a not guilty plea to the first charge, and he denied the DOC's identification of the woman on the telephone call. He argued that prison officials had never identified the woman in the telephone call or provided any audio recording to support the charge. He also entered a not guilty plea to the second charge, pointing out that the substance on the napkin had not been tested and could not provide any evidence against him. After reviewing the incident reports and hearing arguments from Kirk and his inmate legal aide, the adjustment officer found him guilty of both charges.
Following the hearing, the adjustment officer entered findings related to both charges. For the first incident, the findings were as follows:
The adjustment officer imposed 90 days of disciplinary segregation assignment days, but suspended forty-five days, as well as the forfeiture of thirty good-time days.
The findings for the second incident were as follows:
Based on the finding of guilt, the adjustment officer imposed 180 days of disciplinary segregation assignment, of which 90 days were suspended, and the forfeiture of 180 good-time days.
Kirk received copies of the findings and actions, and he indicated that he wanted to appeal the rulings. On August 8, 2013, the Warden Don Bottom denied Kirk's appeals, stating: "The due process requirements appear to be in order. The evidence is sufficient in order to establish a finding of guilt. The Adjustment Committee's decision will stand. Your appeal has been denied."
Kirk then filed a petition for declaration of rights in the Franklin Circuit Court pursuant to Kentucky Revised Statutes (KRS) 418.040 seeking reversal of the DOC's assessment and the penalties imposed based upon a violation of Correctional Policy and Procedures 15.6 and a lack of due process. He argued that he never received the video or telephone audio recordings for either date from prison officials, and no testing had been done on the substance found on the napkin to determine whether it was semen. The DOC moved to dismiss Kirk's petition, arguing that the findings were supported by substantial evidence and that he had received the due process to which he was entitled. By order entered March 25, 2014, the circuit court dismissed Kirk's petition, stating that a "review of the evidence reveals that sufficient evidence was presented by the Respondents to support [the DOC's] findings. Furthermore, the Petitioner received all the due process to which he was entitled." This appeal now follows.
In his brief, Kirk argues that the DOC failed to provide any direct evidence to support its claim that he pursued a non-correctional relationship or that he had inappropriate sexual behavior with another person, which violated his due process rights. The DOC, in its brief, argued that sufficient evidence was presented at the hearing to support the findings of guilt under the disciplinary rules.
In Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974), the U.S. Supreme Court stated, "[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." Citing Wolff, the U.S. Supreme Court held:
Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 2773, 86 L.Ed.2d 356 (1985) (internal citation omitted). Also citing Wolff, the Supreme Court of Kentucky recently held:
Ramirez v. Nietzel, 424 S.W.3d 911, 916 (Ky. 2014) (footnote omitted).
The Hill Court went on to observe:
Hill, 472 U.S. at 454, 105 S.Ct. at 2773. In determining the existence of "some evidence," the Court stated, "[a]scertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Id., 472 U.S. at 455-56, 105 S.Ct. at 2774 (citations omitted). See also Ramirez, 424 S.W.3d at 917 ("If `some evidence' is satisfied, the fear of arbitrary government action is removed and no due-process violation is found."); Smith v. O'Dea, 939 S.W.2d 353 (Ky. App. 1997) (adopting the holding in Hill).
In O'Dea, this Court went on to explain the process of review for prison disciplinary actions, recognizing that the summary judgment standard applies. The Court explained:
O'Dea, 939 S.W.2d at 356.
In the present case, Kirk contends that his due process rights were violated when the investigator failed to provide recordings of the telephone conversations to him or to provide these recordings to the adjustment officer prior to making his decisions, meaning that the findings of guilt were only based on what Mr. Carter and Mr. Mitchell claimed they heard. Kirk cites to the Supreme Court of Kentucky's recent opinion in Ramirez, supra, in support of his position. In Ramirez, the Supreme Court addressed the adjustment officer's reason for denying an inmate's request to admit evidence, to call a witness, and, as pertains to this case, to view security camera footage related to the incident. This disciplinary proceeding arose out of fighting between inmates at Northpoint Training Center, and the inmate requested footage of the fights to establish his alibi that he had been asleep during the fight. Because such footage might provide exculpatory evidence, the Supreme Court held that the adjustment officer "must review security footage if an inmate requests such review. We emphasize that it is entirely appropriate for prison officials to view inmate-requested footage in camera." Ramirez, 424 S.W.3d at 920 (footnote omitted). This holding did not mean that the inmate possessed the right to view the video footage: "If disclosure of such requested exculpatory evidence would not be unduly hazardous to the security of the institution, the evidence should be disclosed to the inmate. An AO may, however, articulate a legitimate reason for denying the inmate access to the evidence." Id. (footnote omitted). The Supreme Court remanded the action to the circuit court to review the security footage in camera, so long as there was a legitimate reason to prohibit the inmate from viewing the footage. Id.
We agree with the DOC that the holding in Ramirez does not mandate a reversal in this case. The record establishes that the adjustment officer attempted to obtain the recordings of the telephone conversations, but the BCDC staff was unable to provide them. Therefore, the due process requirement was met in this case. Furthermore, the reports detailing the telephone conversations and follow up investigation provided "some evidence" to support the adjustment officer's findings and imposition of sanctions.
For the foregoing reasons, the order of the Franklin Circuit Court dismissing Kirk's petition for declaration of rights is affirmed.
ALL CONCUR.
