Kentucky Cases February 01, 2019: Amato v. Dep't of Corr.

Case Description

NOT TO BE PUBLISHED

APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 17-CI-01228

OPINION
AFFIRMING

BEFORE: CLAYTON, CHIEF JUDGE; JONES AND KRAMER, JUDGES.

CLAYTON, CHIEF JUDGE: Shane Amato, pro se , appeals from the Franklin Circuit Court's order dismissing his petition for a declaration of rights, entered May 30, 2018. We affirm the order of the circuit court.

Page 2

Amato is an inmate currently serving a sentence for manufacturing methamphetamine and fleeing or evading police with the Kentucky Department of Corrections at Northpoint Training Center. On December 11, 2017, Amato filed a petition for a declaration of rights against the appellees. For the sake of this appeal, we refer to the appellees collectively as "the DOC."

Briefly stated, Amato's petition and subsequent appeal concern his inmate custody classification. On August 29, 2017, the DOC used its initial classification custody form to calculate Amato as having a score of six, which would ordinarily place an inmate in minimum custody (level 2). However, on the same form, the DOC considered Amato's history of escape, as well as fleeing or evading, and used its override power to determine Amato should instead be classified as medium custody (level 3). Amato vigorously disputed this classification decision, asserting the DOC's policies mandate that an escape should not be scored against an inmate for classification purposes after five years, and his escape conviction had occurred approximately ten years earlier. In denying his classification appeal, Warden Ravonne Sims, acting on behalf of the DOC, sent Amato a letter informing him he could appeal the classification decision, but in "reviewing your file you appear to have 3 felony escapes and 3 felony fleeing and evading. You are not a good candidate for a reduced custody environment."

Page 3

Amato filed a petition for a declaration of rights in Franklin Circuit Court, and the DOC moved to dismiss. In its order entered May 30, 2018, the circuit court granted the motion to dismiss because inmates do not have a protected liberty interest in their security classification, citing Beard v . Livesay , 798 F.2d 874, 876 (6th Cir. 1986); and Hewitt v . Helms , 459 U.S. 460, 466, 103 S. Ct. 864, 868-69, 74 L. Ed. 2d 675 (1983). This appeal followed.

Amato's pro se brief asserts the circuit court, in dismissing his petition, "abused it's [sic] discretion by not upholding the appellant's due process rights[.]" In essence, he argues the DOC may not use the override process to change his security classification on the basis of an escape conviction when the escape conviction could not be considered in the relevant section of the DOC's initial classification custody form.

After some consideration, we must disagree with Amato for the same reasons cited by the circuit court. "In order to prevail on a Fourteenth Amendment procedural due process claim, a party must establish (1) that he enjoyed a protected 'liberty' or 'property' interest within the meaning of the Due Process Clause, and (2) that he was denied the process due him under the circumstances." Marksberry v . Chandler , 126 S.W.3d 747, 749 (Ky. App. 2003) (citations omitted). "A liberty interest protectible under the Fourteenth Amendment may arise only when

Page 4

implicated by the Constitution, or a state law or regulation." Mahoney v . Carter , 938 S.W.2d 575, 576 (Ky. 1997) (quoting Beard , 798 F.2d at 875).

The Kentucky Supreme Court considered this issue over twenty years ago when it stated DOC policies and procedures, also involving the use of an override, "did not create a liberty interest and appellant therefore had no right to a minimum security classification." Id . at 577. Accordingly, Mahoney held that "a prisoner has no inherent right to a particular security classification or to be housed in a particular institution." Id . at 576 (citing Beard , 798 F.2d at 876). This rationale still controls the outcome in the case sub judice . Under its current rules, the DOC retains "final review in all classification matters and may overrule or modify any classification decision reached on the institutional level." Kentucky Corrections Policies and Procedures (CPP) 18.2(II)(B). Because the DOC explicitly retains complete discretion in classification matters, there is nothing to implicate the formation of an inmate's liberty interest. As in Mahoney , no liberty interest had arisen; Amato "therefore had no right to a minimum security classification." Mahoney , 939 S.W.2d at 577.

Furthermore, "so long as the conditions or the degree of confinement to which the prisoner is subjected do not exceed the sentence which was imposed and are not otherwise in violation of the Constitution, the due process clause of the Fourteenth Amendment does not subject an inmate's treatment by prison

Page 5

authorities to judicial oversight." Id . at 576 (citing Hewitt , 459 U.S. at 468, 103 S. Ct. at 869-70). Amato's petition does not assert that his term exceeds the imposed sentence, nor that it contravenes other constitutional considerations. Therefore, under these circumstances, we may not review the DOC's exercise of its override power to modify Amato's security classification.

For the foregoing reasons, we affirm the Franklin Circuit Court's order dismissing Amato's petition.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Shane Amato, pro se
Burgin, Kentucky

BRIEF FOR APPELLEES:

Linda M. Keeton
Department of Corrections
Office of Legal Services
Frankfort, Kentucky