                                               RENDERED: NOVEMBER2, 2017
                                                          TO BE PUBLISHED

              ~uprttttt filnurl              of ~tnfutk\!
                              2016-SC-000320-DG


JANET CONOVER, WARDEN                                                    APPELLANTS
AND
KRISTINE GOETZINGER,
ADJUSTMENT OFFICER


                   ON REVIEW FROM COURT OF APPEALS
v.                    CASE 'NO. 2015-CA-000039-MR
                  SHELBY CIRCUIT C.OURT NO. 14-CI-00550


KRISTY LAWLESS                                                              APPELLEE



            OPINION OF THE COURT BY JUSTICE CUNNINGHAM

                                   REVERSING


      This is a prison discipline· case ix:ivolving a fight between two inmates in

which a Corrections officer was injured. One of the inmates involved in the

altercation, Appellee, Kristy Lawless, was disciplined   ~s   a result of the officer's

injury .. She appealed that disciplinary determination through the appropriate

channels and eventually exhausted her appeals as a matter of right resulting in

a decision by the Court of Appeais ruling in her fa~or. For the forgoing

reasons, we reverse the decision of the Court of Appeals and reinstate the trial

court's order denying Lawless' petition.
                                    Background

       In 2014, Appellee, Kristy Lawless, and Remonia Mills were inmates at the

Kentucky Correctional Institute for Women (KCIW). Mills had previously·

assaulted Lawless and was labeled as "maximum assaultive status." On

February 24, 2014: Mills violently attacked Lawless during recreation time.

Two Corrections officers, Officer Jessica Evans and Sergeant Timothy Schmid,

intervened to break up the altercation.,· Officer Evans was injured.

       Officer Evans subsequently filed a·disciplinary report claiming that

Lawless kicked her in the knee during the fight. As a result of th~ report, an

investigation commenced and Lawless was charged with a disciplinary

violation-physical actions resulting in death or injury to an employee.

Adjustment Officer (AO), Kristine Goetzinger, conducted a hearing in March

2014. At the hearing, Lawless denied kicking Officer Evans and stated that she

was   ~erely   trying to defend herself from Mills. Lawless requested that AO .

Goetzinger review the security ~ideo that do~umented the fight. She als.o

presented statements from two witnesses. One statement was from the other

Corrections officer who responded to the ·altercation. · That offic~r confirmed

that Lawless was attempting to defend herself and was     coope~ative   once Mills

was separated from her. The officer made no mention of Officer Evans' injury.

The second statement was from another irimate claiming that she did not

witness Lawless strike Officer Evans and that Lawless was as compliant as

possible.




                                          2
       After considering the evidence, AO Goetzinger found Lawless guilty of the

 charged disciplinary offense and sentenced her to 365 days in segregation and

 1,321 days of lost good-time credit. AO Gbetzinger's findings state in pertinent

part as follows:·

       Inmate stated that Officer Evans was in the middle of breaking up
       the fight and is questioning how the officer could determirie who
       caused the injury to her. Inmate states that she was compliant,
       just like [Sergeant Schmid's] statement is saying, but that the
       other. inmate was not compliant·. . . . Due to this report from
       [Officer Evans] that injury was caused from this inmate while
       trying to separate a physical altercation, I am going to find her
       guilty of this charge.

 Lawless appealed to the Warden, who affirmed but reduced        h~r   punishment to

 180 days in segregation and 199 days of lost good-time credit.

       Lawless then filed a prose declaration of rights action against Warden

 Conover and AO Goetzinger in Shelby· Circuit Court wherein she argued that

 the disciplinary proceeding violated her Fourteenth Amendment right to due

process. Approximately     two weeks later, AO Goetzinger executed an affidavit
                                .                     .
stating: 1) she reviewed the surveillance video per Lawless' request; 2) nothing

in the camera footage altered her determination th.at Lawless was guilty; and 3)

·that her determination was not based on the camera footage but rather on the

· statement of the officer (victim) regarding who injured her.

       Two days later, the ~ircuit court dismissed Lawless' petition finding that

she had "received due process and there is some evidence in the record to

support the finding of the adjustmerit officer." The court did not discuss the

surveillance video which apparently was not in the record. Lawless appealed

. the court's decision to the Court ·of Appeals which,' in a spilt opinion, reversed
                                          3
  the trial court's order dismissing Lawless' petition. The Court of_ Appeals

  remanded the case to the trial court and ordered the court review and consider

  the surveillance video .. Warden Conover and AO Goetzinger (Appellants),

  appealed to this Court. I

                                    Standard of Review
                                                                                           )

         "[P]rison disciplinary proceedings are not criminal prosecutions_; and

'-" · punishment is imposed as warranted by the       ~everity   of the offense in order to

  correct and control inmate behavior within the·prison." Ramirez v. Nietzel, 424

  S.W.3d 911, 916 (Ky. 2014). Generally         s~eaking,   due process is satisfied if "the

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

  record .... " Superintendent, Massachusetts Correctional Institution, Walpole v.

  Hill, 472 U.S. 445, 454 (1985). "The primary inquiry is 'whether there is any

  evidence in the record that could support the conclusion reached by the

  disciplinary   board~"'   Ramirez, 424 S.W.3d at 917 (citation omitted). With this

  minimal standard in mind, we now turn to the merits of the present case.

                                           Analysis

         The primary issue in this case is whether Lawless' procedural due

 . process rights were violated. That issue is squarely resolved by our holding in.

  Ramirez:

         When a prisoner maintains that he was denied a meaningful
         opportunity to present a defense due to [an AO's] refus_al to
         consider exculpatory evidence, then procedural due process
         requires a [circuit] court to conduct an in camera review·of the

               After the parties filed their briefs, Lawless 'filed a motion to strike a
  portion of Appellants' reply brief. That moti~n is hereby denied.

                                                4
         evidence to determine whether it wa·s indeed exculpatory and
         whether, in light of the new evidence, "some evidence" existed for
         the AO's finding of guilt.

Id. at 920 (quoting Felder v. McBride, 121 Fed.Appx. 655, 656-57 (7th
Cir.2004)).

In applying our: holding in Ramirez to the present facts, it is clear that Lawless

was-not denied a meaningfulopportunity to con.sider exculpatory evidence-the

surveillance video. In fact, the AO submitted an affidavit specifically

addressirig that video. Although she executed the affidavit after she rendered

· her disciplinary decision! she suppleme:r:ited her findings in a timely manner

and in compliance with the due process dictates discussed in Ramirez.. Any

error that may have occurred here was harmless. Moreover, the AO was very

clear that she based her disciplinary decision on the statement of the officer
     .                                                                   .

(victim). That certainly satisfies the "som(;! evidence" standard adopted by the
                                     '                               .
                                     \

United States Supreme Court.· Walpole, 472 U.S . .at 454. Therefore, there was

no .error requiring reversal of the AO's decision.

         A secondary   issu~   discussed at length by the Court of Appeals concerns

what steps the circuit court must take in order to satisfy due process. The

Court of Appeals read Ramirez to require that the circuit court review allegedly

. exculpatory evidence and to document its finding based on tqat evidence.
                                     !                      .

However, Ramirez makes no such pronouncement.

         Ramirez is distinguishable from this case because "the AO denied

[Ramirez's] request" to introdµce surveillance-camera footage of the incident.

Ramirez, 424 S.W.3d at 915. We held that "an AO must review security footage


                                            5
 if an inmate requests such review[.]" Id. at 920. The trial court's review in

 Ramirez was- necessary only because Ramirez's due process right to request in

 camera review was denied by the AO, which was not the case here. It appears

 that the Court of Appeals in the present case read Ramirez in the context of

 Fo,ley v. Haney, 345 S.W.3d 861 (Ky. App. 2011).

         Foley concerned an AO's failure to review allegedly exculpatory cafeteria

 and medical records, and to make other necessary findings. Id. at 864. The

 court   he~d   the AO denied the inmate due process by failing to review the

 records. On remand; the Foley court ordered the AO to rev:iew the allegedly

 exculpatory recorc;ls, indicate that he reviewed the records in his written
                                      -·
 finding, and· describe whether the _records    confirrn.~d   or contradicted the

 inmate's narrative. Id. at 866. Because Ramirez was published after Foley, the

 Court of Appeals determined that Ramirez implicitly reaffirmed Foley.. The

 Court of Appeals then extended Foley to apply not only to AO decisions, but

 also the review. of those decisions by the circuit court. It is therefore necessary

 to Clarify our decision in Ramire_z and how it relates to Foley.

         '1n order to satisfy due process, AOs must do the following when

 requested by an inmate to review allegedly exculpatory evidence that .is

.. reasonably accessible and available for review: 1) review allegedly exculpatory

 records; 2) indicate that she reviewed the records in her written finding; and 3) .·

 consider the impact of that evidence when rendering h_er decision. That

· . standard
          .  was satisfied in the present case by the AO's timely execution of a

 supplemental affidavit.

                                            6
      For appeals before the circuit court, however, ~uch findings are not

necessary. Rather, the circuit court is required to review the allegedly

exculpatory evidence in the event the AO failed to do so. In the absence of a·

dispute concerning whether the AO considered allegedly exculpatory evidence,

"[t]he primary inquiry [of the circuit court] is 'whether there is any evidence in

the record that could support the conclusion reached by the disciplinary

board. m Ramirez, 424 'S.W.3d at 917 (citation omitted).· That st.andard was

satisfied here.

     ·Lastly, the Court of.Appeals discussed an issue that neither party

briefed-who. is responsible for transmitting the record in prison disciplinary

cases. The court determined that the burden was upon the Department of

Corrections. Because this issue was not raised before the circuit court or by

the parties,   we need not discuss it here.
                                      Conclusion

      For the foregoing reasons, we hereby reverse the decision of the Court of

Appeals and reinstate the trial court's order denying Lawless' petition.

      Minton, C.J.; Hughes, Keller, Venters, and Wright, JJ.; sitting. All

coricur. VanMeter, J., not sitting.


COUNSEL FOR APPELLANTS:

Angela Turner Dunham
Justice and Public Safety Cabinet

COUNSEL FOR APPELLEE:

Heather Hodgson
Assistant Public Advocate
                                          7
