                                        No. 120,909

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                FRANKLIN L. GRAMMER JR.,
                                       Appellant,

                                                 v.

                         KANSAS DEPARTMENT OF CORRECTIONS,
                                     Appellee.


                              SYLLABUS BY THE COURT

1.
       A petition under K.S.A. 60-1501 is a procedural means through which a prisoner
may challenge the mode or conditions of his or her confinement, including administrative
actions of the penal institution. To state a claim for relief, a petition must allege shocking
and intolerable conduct or continuing mistreatment of a constitutional stature.


2.
       Prison officials may not retaliate against or harass an inmate based on the inmate's
exercise of constitutionally protected rights.


3.
       Courts employ a burden-shifting framework in civil-rights retaliation actions
under K.S.A. 60-1501. First, a petitioner must demonstrate as an initial matter that (1) he
or she was engaged in a constitutionally protected activity; (2) the prison officials' actions
caused the petitioner to suffer an injury sufficient to chill a person of ordinary firmness
from continuing to engage in that activity; and (3) the officials' adverse action was
substantially motivated by the petitioner's exercise of a constitutionally protected right. It
is only when a petitioner succeeds in making this initial showing that the burden shifts to



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the prison officials to provide a substantial, legitimate need for their actions. Then the
ultimate burden of persuasion lies with the petitioner to prove—despite the reasons given
by the officials—that the petitioner's constitutionally protected conduct actually caused
the adverse action.


4.
       The deference appellate courts employ when reviewing a district court's decision
on a K.S.A. 60-1501 petition turns on the contours of the arguments presented and the
nature of the decision below. When a petitioner challenges a district court's factual
findings, an appellate court will uphold those findings if they are supported by substantial
competent evidence and are sufficient to support the district court's conclusions of law.
Appellate courts exercise unlimited review over—that is, they give no deference to—a
district court's legal conclusions.


5.
       A conclusion that a party did not meet his or her burden of proof is a negative
finding. When the district court makes a negative finding in denying a petition for habeas
corpus, its ruling will not be disturbed on review absent a showing of an arbitrary
disregard of undisputed evidence or some extrinsic influence such as bias, passion, or
prejudice.

       Appeal from Ellsworth District Court; SCOTT E. MCPHERSON, judge. Opinion filed November
27, 2019. Affirmed.


       Shannon S. Crane, of Hutchinson, for appellant.


       Robert E. Wasinger, legal counsel, of Kansas Department of Corrections, for appellee.


Before POWELL, P.J., HILL and WARNER, JJ.




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       WARNER, J.: Franklin L. Grammer Jr. appeals the district court's denial of his
K.S.A. 60-1501 petition, alleging the Kansas Department of Corrections retaliated against
him for engaging in activities protected by the First Amendment to the United States
Constitution. In particular, Grammer claims the KDOC transferred him to progressively
worse conditions after he corresponded with the ACLU about the KDOC magazine
policies and filed another grievance for health reasons. Because Grammer brought these
claims, he was required to first demonstrate that the KDOC's transfer decisions were
substantially motivated by retaliation for his protected speech before the KDOC was
called to present any evidence of its reasons for the transfer. The district court—after
holding an evidentiary hearing and listening to Grammer's testimony—found he had not
proved this critical point and thus denied the petition. We affirm.


                         FACTUAL & PROCEDURAL BACKGROUND

       Grammer is an inmate with the Kansas Department of Corrections. Before June
2016, he was incarcerated at the Hutchinson Correctional Facility. Grammer asserts that
during that time, the KDOC seized several personal magazines from him—magazines
such as Popular Science, Field & Stream, and Garden & Gun. Between February and
June 2016, Grammer filed multiple appeals of these seizures through the KDOC
administrative process. Some of these appeals were successful, in that the KDOC
ultimately determined the magazines should not have been taken, but by that time the
particular magazines were no longer available to be returned.


       Frustrated with the KDOC's response, Grammer sent a letter to the ACLU
sometime during the spring of 2016 explaining the history of magazine seizures.
Grammer later testified he sent the first such letter to a friend to forward on to the ACLU
because he was afraid of reprisal from the KDOC. The ACLU responded to his letter
directly, leading to some back-and-forth correspondence between Grammer (from his
prison address) and the organization over the next few months.


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       During the same period, Grammer's sister requested that he be transferred from
Hutchinson to Lansing Correctional Facility because his mother, who lived in
Leavenworth, was ill and wanted to visit him. The KDOC granted this request, moving
Grammer to Lansing on June 14, 2016. Later that month, the ACLU wrote again and
informed him that "they had received several complaints from inmates" about magazines
being taken and that "they had an ongoing investigation" but "could do nothing more
about it."


       Grammer, who has a bad knee, was initially housed in Q1 at the Lansing facility.
Q1 is on the lower level and can be accessed via a short ramp from the main level. About
two weeks later, the KDOC moved him to Q2, on an upper level. This move meant
Grammer had to walk up a longer ramp with a steeper grade to access his living quarters.
Grammer thus filed a grievance with the KDOC, claiming that living on the upper floor
aggravated his knee injury.


       On July 12, 2016—exactly four weeks after his move from Hutchinson to
Lansing—the KDOC transferred Grammer to Ellsworth Correctional Facility. Grammer
filed another grievance, asserting that he believed the transfer was made in retaliation for
filing his initial grievance (regarding the move from Q1 to Q2) and his communications
with the ACLU. Grammer's mother remained ill and could not visit him at Ellsworth; she
died in June 2017.


       The KDOC answered both grievances, citing K.A.R. 44-15-101a(d)(2) and
informing Grammer that housing assignment transfers were "nongrievable" issues
because they relate to "the classification decision-making process."


       Grammer then filed a petition under K.S.A. 60-1501 with the district court, again
asserting the transfers were retaliatory in nature. More specifically, Grammer asserted


                                             4
that his move from Q1 to Q2 in Lansing was a reprisal for contacting the ACLU about
the magazines (which Grammer asserted was a violation of his freedom of speech under
the First Amendment) and that his transfer to Ellsworth was retaliation for his filing a
grievance over the first move. The KDOC moved to dismiss the petition, arguing prison
officials have the authority to transfer an inmate to any institution or facility at any time
and for any reason under K.S.A. 2016 Supp. 75-5206.


       The district court directed both parties to brief the issues and held an evidentiary
hearing. Relying on federal caselaw applying 42 U.S.C. § 1983, the court noted that
Grammer had the burden to prove that the transfers were retaliatory—that is, were
effected because he had engaged in constitutionally protected activity. If Grammer made
this initial prima facie showing of retaliation, the burden would then shift to the KDOC to
"'justify their abridgement of his fundamental constitutional right by establishing a
substantial, legitimate need for the transfer.'"


       Grammer was the sole witness to testify at the evidentiary hearing. He stated that
when he began corresponding with the ACLU about the magazines, the KDOC "started
moving [him] to progressively worse conditions." His retaliation argument focused on
KDOC's awareness of his contact with the ACLU and on the chronology of his
grievances and transfers. When asked why he believed his transfers were made in
retaliation for contacting the ACLU, Grammer could not recall, stating, "I don't actually
remember what the circumstances was [sic], but I do know that it made clear that Lansing
was aware of" the correspondence. And he pointed out that the transfers occurred around
the same time he received his final letter from the ACLU.


       The KDOC agreed Grammer had engaged in activities protected by the First
Amendment, but argued he had not shown he was transferred for engaging in those
activities. The KDOC noted there was no reason to believe Grammer's move to Q2 or to
Ellsworth made his ability to file grievances or to communicate with the ACLU more


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difficult; thus, Grammer had failed to prove a connection between the transfers and the
protected conduct. And it asserted Grammer had not demonstrated that the transfers were
motivated by retaliatory intent.


       The KDOC did not offer testimony at the hearing, but it attached a number of
exhibits to its original motion. At the hearing, the district court referenced one of these
exhibits—a document entitled "Central Monitoring Case Review"—which detailed
concerns raised by a Lansing employee related to Grammer's placement at that facility.
This employee contacted Lansing's administrative office and explained that Grammer had
been "making some inquiries about her, her family, [and] her personal life" and appeared
to have "great knowledge" about those subjects. The employee, who was a living unit
supervisor, asked that Grammer be housed in a different facility. The KDOC transferred
Grammer from Lansing to Ellsworth six days after the employee filed her report.


       The district court denied Grammer's petition, finding he "did not meet his burden
to show that his transfer was not the result of a legitimate reason" and "did not submit
substantial evidence that his moves within the prison were the result of retaliation."
Grammer appeals.


                                        DISCUSSION

       A petition under K.S.A. 60-1501 is "a procedural means through which a prisoner
may challenge the mode or conditions of his or her confinement, including administrative
actions of the penal institution." Safarik v. Bruce, 20 Kan. App. 2d 61, 66-67, 883 P.2d
1211 (1994). To state a claim for relief, a petition must allege "shocking and intolerable
conduct or continuing mistreatment of a constitutional stature." Johnson v. State, 289
Kan. 642, 648, 215 P.3d 575 (2009).




                                              6
       Kansas courts, like our federal counterparts, have recognized that "[p]rison
officials may not retaliate against or harass an inmate based on the inmate's exercise of"
protected rights. Bloom v. Arnold, 45 Kan. App. 2d 225, 232, 248 P.3d 752 (2011); Green
v. Johnson, 977 F.2d 1383, 1389 (10th Cir. 1992). At the same time, "[b]ecause the
realities of running a penal institution are complex and difficult," courts "have also
recognized the wide-ranging deference to be accorded the decisions of prison
administrators." Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 126, 97
S. Ct. 2532, 53 L. Ed. 2d 629 (1977).


       To strike a balance between protecting the petitioner's constitutional rights and
giving "appropriate deference to the decisions of prison administrators," courts employ a
burden-shifting framework. See Jones, 433 U.S. at 125. First, to state a civil-rights
retaliation claim—whether under K.S.A. 60-1501 or 42 U.S.C. § 1983—an inmate must
demonstrate as an initial matter that (1) he or she was engaged in a constitutionally
protected activity; (2) the prison officials' actions caused the inmate to suffer an injury
sufficient to chill a person of ordinary firmness from continuing to engage in that activity;
and (3) the officials' adverse action was substantially motivated by the inmate's exercise
of a constitutionally protected right. Bloom, 45 Kan. App. 2d at 233; Mimics, Inc. v.
Village of Angel Fire, 394 F.3d 836, 847 (10th Cir. 2005). It is "[o]nly when" a petitioner
succeeds in making this initial showing that the burden shifts to the prison officials to
provide "a substantial, legitimate need" for their actions. Smith v. Halford, 570 F. Supp.
1187, 1196 (D. Kan. 1983). Then the ultimate burden of persuasion lies with the
petitioner to prove—despite the reasons given by the officials—that the petitioner's
constitutionally protected conduct actually caused the adverse action. See McDonald v.
Hall, 610 F.2d 16, 18-19 (1st Cir. 1979) ("Plaintiff must prove he would not have been
transferred 'but for' the alleged reason.").


       Few Kansas cases have considered claims alleging retaliatory transfers among
prison facilities. For this reason, the parties and the district court applied the standards


                                               7
articulated in federal prison-transfer cases discussing 42 U.S.C. § 1983—the federal
analog of K.S.A. 60-1501 in this area. In particular, the district court relied on McDonald
and Smith to find that Grammer had the ultimate burden to prove the "motivating factor
for his transfer was his writ-writing activities." 570 F. Supp. at 1196. But first, quoting
Smith, the court noted that Grammer was required to make an initial, threshold showing
by "substantial evidence" as to why he believed the transfers were motivated by
retaliation. See Smith, 570 F. Supp. at 1196. The parties do not dispute this standard.


       The sole question before this court is whether the district court erred in finding
that Grammer failed to make this initial showing. The deference appellate courts give to a
district court's decision on a K.S.A. 60-1501 petition turns on the contours of the
arguments presented and the nature of the decision below. For example, when a petitioner
challenges a district court's factual findings, an appellate court will uphold those findings
if they are supported by substantial competent evidence and are sufficient to support the
district court's conclusions of law. Rice v. State, 278 Kan. 309, 320, 95 P.3d 994 (2004);
Hooks v. State, 51 Kan. App. 2d 527, 530, 349 P.3d 476 (2015). And appellate courts
exercise unlimited review over—that is, they give no deference to—a district court's legal
conclusions. Rice, 278 Kan. at 320; Hooks, 51 Kan. App. 2d at 530.


       In contrast, a conclusion that a party did not meet his or her burden of proof—like
the district court made here—is a negative finding requiring substantial deference on
appeal because it inherently involves credibility assessments and weighing of evidence.
"When the district court makes a negative finding in denying a petition for habeas corpus,
its ruling will not be disturbed on review absent a showing of an arbitrary disregard of
undisputed evidence or some extrinsic influence such as bias, passion, or prejudice."
Merryfield v. Sullivan, No. 109,558, 2014 WL 1707675, at *1 (Kan. App. 2014) (citing
McCracken v. Kohl, 286 Kan. 1114, 1121, 191 P.3d 313 [2008]), rev. denied 301 Kan.
1046 (2015).



                                              8
       Grammer argues the district court erred because his testimony provided "a
timeline that would support the contention that the moves were retaliatory in nature based
upon his filing of grievances and contacting the ACLU." Grammer asserts his testimony
provided evidence that these activities were the but-for cause of his transfers, and that he
therefore "provided sufficient proof that prison officials retaliated against him for the
exercising [of] his First Amendment rights." The KDOC responds that Grammer merely
asserted conclusory allegations and failed to offer any specific evidence of retaliation.


       Considering all the arguments and evidence presented, the district court did not err
in denying Grammer's petition. In explaining its ruling, the district court noted
Grammer's testimony regarding the chronology of events but found that this timeline
alone did not prove the transfers were made for retaliatory reasons. Instead, the court
found Grammer's testimony amounted to little more than his own personal belief or
conjecture about the retaliatory nature of the transfers—a point underscored by
Grammer's admission that he could not pinpoint a specific reason why he believed the
KDOC would react adversely to the ACLU correspondence, other than the fact that one
letter was sent to him by the ACLU while he was housed in Lansing. Accord Smith, 570
F. Supp. at 1196 (explaining that a person challenging a prison-transfer "must detail the
evidence he possesses that his transfer was for no reason other than his legal activities").
The court then balanced these unsubstantiated beliefs against the explanation provided in
the "Central Monitoring Case Review," where an employee specifically requested that
Grammer be moved to a different facility based on inquiries he was making into her
personal life.


       Applying the retaliation test set forth in Bloom, the record supports the district
court's conclusion. Though the parties stipulated that Grammer had engaged in
constitutionally protected activity—filing his grievance relating to the transfer from Q1 to
Q2 and communicating with the ACLU—Grammer did not demonstrate that the KDOC's
actions would chill a person's efforts to engage in that activity or that his constitutionally


                                              9
protected actions substantially motivated the transfers. See Bloom, 45 Kan. App. 2d at
233. Notably, Grammer presented no evidence or argument that the transfers made it
more difficult for him to exercise his First Amendment rights or would dissuade someone
from engaging in protected speech in the future. And Grammer's timeline does not
provide the support he claims: Grammer provides no explanation as to why he believes
the KDOC took allegedly retaliatory action while he lived in Lansing and Ellsworth when
his correspondence with the ACLU occurred primarily from Hutchinson.


       Grammer asserts the KDOC submitted no evidence that his transfers were made
for legitimate reasons. But the KDOC had no duty to explain the reasons behind the
transfers until Grammer met his initial burden of demonstrating that the catalyst for his
transfers was his engagement in protected activities. See Smith, 570 F. Supp. at 1196.
And even if Grammer had made such a showing, the KDOC provided an alternative and
legitimate explanation for the move from Lansing to Ellsworth through the "Central
Monitoring Case Review" document attached to its original motion to dismiss.


       The district court's conclusion that Grammer failed to meet this burden is a
negative finding. Grammer has made no showing on appeal that the court arbitrarily
disregarded undisputed evidence or was influenced by bias, passion, or prejudice. To the
contrary, the court considered the evidence presented and concluded Grammer had not
demonstrated, as an initial matter, that his transfers were effected with a retaliatory
motive. We find no reason to set aside the district court's decision.


       Affirmed.




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