Bowers v. Barton County Sheriff Bellendir ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,020
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
LEROY BOWERS,
Appellant,
v.
BARTON COUNTY SHERIFF BRIAN BELLENDIR,
Appellee.
MEMORANDUM OPINION
Appeal from Barton District Court; STEVEN E. JOHNSON, judge. Opinion filed January 28, 2022.
Reversed and remanded with directions.
Bradley T. Steen, of Law Office of B. Truman Steen, LLC, of Ellsworth, for appellant.
No appearance by appellee.
Before MALONE, P.J., POWELL and ISHERWOOD, JJ.
PER CURIAM: Leroy Bowers filed a petition pursuant to K.S.A. 60-1501 while
being held in pretrial detention at the Barton County Detention Facility. The petition
claimed that jailers conspired to plant drugs on him, inmates taunted him as being a "CI"
and a "child molester," and jailers denied his request to be moved when he was assaulted
by three inmates over the course of six and a half hours. The district court summarily
denied the petition and Bowers timely appealed. On appeal, Bowers argues the district
court erred because he alleged facts that established a due process violation as well as a
claim of deliberate indifference. The district court's order of dismissal bears no indication
it considered Bowers' claim that jailers neglected to intervene when he was threatened
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and later attacked by several other inmates. Because those allegations support claims of
relief based on the denial of a liberty interest, as well as deliberate indifference to his
well-being, the district court's refusal to consider them constitutes error. Accordingly,
Bowers' case is reversed and remanded with instructions that a writ be issued to compel a
response from the State.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2021, Bowers filed a pro se habeas petition under K.S.A. 2020 Supp. 60-
1501 while in pretrial custody at the Barton County Detention Center. He alleged that he
faced cruel and unusual punishment, sought immediate release, and requested dismissal
of his charges with prejudice. In the petition, Bowers explained that jailers refused to
assist him with legal research, threatened to plant drugs in his property bag, and accused
him of being a "child molester." Finally, he described an incident where several other
inmates threatened to attack him, so he requested to be relocated. Jailers ignored his
pleas, his would-be assailants made good on their threats and Bowers endured a six and a
half hour beating. He stated that jail officials pulled him aside a week later and inquired
about the incident, but he did not feel safe enough to speak freely.
The district court summarily dismissed Bowers' petition and offered the following
in support of its conclusion:
"While the petition is extremely difficult to decipher, it is apparent he does not feel he is
being treated fairly when it comes to interaction with other inmates and claims that jailers
have threatened to frame him for drug possession. He does not indicate that any of these
actions have occurred, and the most he can assert in regards to any actual fact is that he
feels uncomfortable and threatened. Not only is he seeking release from pretrial
detention, he is seeking relief of dismissal of the charges against him. This is relief that
cannot be obtained through habeas corpus, and further, the facts do not justify his pretrial
detention release. If he has grounds for release, he should seek them through the criminal
actions against him." (Emphasis added.)
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Bowers timely appealed. His appointed counsel filed an appellate brief on his
behalf but Respondent, Barton County Sheriff Brian Bellendir, never submitted a brief.
The matter is now before us and requires an analysis of the propriety of the district
court's summary denial of Bowers' claims.
DID THE DISTRICT COURT ERR IN SUMMARILY DISMISSING BOWERS' K.S.A. 60-1501
PETITION?
On appeal, Bowers argues that his petition should not have been summarily
dismissed because jailers at the Barton County Detention Facility were "deliberately
indifferent" toward his safety.
Standard of Review
This court exercises unlimited review over summary dismissal of a K.S.A. 60-
1501 petition. Johnson v. State, 289 Kan. 642, 649, 215 P.3d 575 (2009). "Whether the
district court correctly construed a pro se pleading is a question of law subject to
unlimited review." State v. Gilbert, 299 Kan. 797, 802, 326 P.3d 1060 (2014).
Issuance of Writ
K.S.A. 60-1501 petitions provide prisoners an opportunity to "attack the
conditions of [their] confinement." Shepherd v. Davies, 14 Kan. App. 2d 333, 335, 789
P.2d 1190 (1990). K.S.A. 2020 Supp. 60-1503(a) provides:
"(a). Issuance. The petition shall be presented promptly to a judge in the district
court in accordance with the procedure of the court for the assignment of court business.
The petition shall be examined promptly by the judge to whom it is assigned. If it plainly
appears from the face of the petition and any exhibits attached thereto that the plaintiff is
not entitled to relief in the district court, the petition shall be dissolved at the cost of the
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plaintiff. If the judge finds that the plaintiff may be entitled to relief, the judge shall issue
the writ and order the person to whom the writ is directed to file an answer within the
period of time fixed by the court or to take such other action as the judge deems
appropriate."
A district court may summarily dismiss a K.S.A. 60-1501 petition if the
allegations are not "of shocking and intolerable conduct or continuing mistreatment of a
constitutional stature." Johnson, 289 Kan. at 648. "Summary dismissal is appropriate if,
on the face of the petition, it can be established that petitioner is not entitled to relief, or
if, from undisputed facts, or from uncontrovertible facts, such as those recited in a court
record, it appears, as a matter of law, no cause for granting a writ exists." 289 Kan. at
648-49.
On appeal from that decision, the appellate court's "task is to accept as true the
allegations in [the] petition in order to determine if the facts alleged and their reasonable
inferences state a claim for relief." Schuyler v. Roberts, 285 Kan. 677, 679, 175 P.3d 259(2008). "The court must determine whether the alleged facts and all their inferences state
a claim, not only on the theories which the plaintiff espouses, but on any possible
theory." Hill v. Simmons, 33 Kan. App. 2d 318, 320, 101 P.3d 1286 (2004). Additionally,
reviewing courts "broadly construe" pro se petitions. Laubach v. Roberts, 32 Kan. App.
2d 863, 868, 90 P.3d 961 (2004).
Thus, the analysis of whether Bowers' K.S.A. 60-1501 petition may be dismissed
must begin by accepting as true the allegations set forth in Bowers' initial K.S.A. 60-1501
petition. The district court failed to do this. Rather, in its order of dismissal, when
discussing the petition's factual allegations, the district court found that "it is apparent
[Bowers] does not feel he is being treated fairly when it comes to interaction with other
inmates and claims that jailers have threatened to frame him for drug possession." Thus
far, this is an accurate reading of the petition.
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The district court erroneously concluded that Bowers "does not indicate that any
of these actions have occurred and the most he can assert in regard to any actual fact is
that he feels uncomfortable and threatened." While it is true that Bowers experienced
both these states, page five of his petition also includes a specific allegation that a jailer
ignored his pleas for protection from an impending assault and, as a result, on February
25, 2021, he endured a nearly seven-hour beating at the hands of other inmates who
accused him of being a "child molester" and a "CI." Bowers' petition also stated that
detention facility officials attempted to interview him about a week after the assault
occurred, but he was too afraid to speak openly about it. The district court's order omits
these allegations.
The district court addressed the remedies sought by Bowers, pretrial release or
dismissal of the charges against him. The court found that the facts did not warrant
release from custody and, further, that a habeas corpus petition was not the proper vehicle
through which to obtain dismissal of his charges.
K.S.A. 2020 Supp. 60-1505(d) outlines the appropriate remedies in a habeas
action:
"(d) Judgment. If the court determines that the restraint is not wrongful, the writ
shall be dissolved at the cost of the plaintiff. If the restraint is found to be wrongful, the
judgment shall be either that the person shall be released, or that custody shall be
transferred to some other person rightfully entitled thereto, and the court may make such
other orders as justice and equity or the welfare of a minor physically present in the state
may require." (Emphasis added.)
So Bowers' requests for relief were not entirely precluded as a matter of law. See
In re Horst, 270 Kan. 510, 14 P.3d 1162 (2000) (discussing the right to be released from
custody in relation to a K.S.A. 60-1501 petition). As a reviewing court, we have the
obligation to accept Bowers' allegations as true. Thus, we must assume then that his
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request for release arose from the fact that jailers in his detention facility possessed
knowledge about the impending assault against Bowers but made the conscious decision
to not intervene.
The next step in our analysis is to determine whether these alleged facts and their
reasonable inferences give rise to a claim for relief. Schuyler, 285 Kan. at 679.
Importantly, the alleged facts can support any theory of relief. Thus, this court's analysis
is not limited to the arguments raised by Bowers in his initial petition. See Hill, 33 Kan.
App. 2d at 320.
As noted above, a K.S.A. 60-1501 petition must allege "shocking and intolerable
conduct or continuing mistreatment of a constitutional stature." Johnson, 289 Kan. at
648. The "shocking and intolerable conduct" language "derives from the Fourteenth
Amendment to the United States Constitution, which prohibits the states from depriving
persons of 'life, liberty, or property, without due process of law.'" 289 Kan. at 649
(quoting U.S. Const. amend. XIV, § 1). A two-pronged due process analysis is required,
(1) whether the State deprived Bowers of life, liberty or property and (2) what is the
extent and nature of the process to which he is entitled. See Johnson, 289 Kan. at 649.
Bowers contends that the jail conditions of which he complained implicate a
liberty interest. A liberty interest may emanate from two potential sources, state law or
the Due Process Clause of the Fourteenth Amendment. Chubb v. Sullivan, 50 Kan. App.
2d 419, 426, 330 P.3d 423 (2014). Bowers argues that both provide a foundation for his
claim. He first directs our attention to Schuyler and its holding that a liberty interest could
be implicated when conditions are imposed that lead to "a significant hardship on the
inmate in relation to the ordinary incidents of prison life." Schuyler, 285 Kan. at 682. He
also cites to K.S.A. 19-1919 and its mandate that "all prisoners shall be treated with
humanity."
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A federal district court rejected a similar state law driven argument and Bowers
has not provided us with any authority from the Kansas Supreme Court where they
assumed the opposite stance. See Tennant v. Miller, No. 13-2143-EFM, 2014 WL
289497, at *3 (D. Kan. 2014). When detention facility guards turn a blind eye to an hours
long attack that inmates perpetrate against another inmate, such an incident constitutes a
significant hardship compared to the ordinary course of prison life. Accepting such facts
as true here, Bowers articulated a claim rooted in the liberty interest contemplated by the
Fourteenth Amendment.
There are other constitutional roads a petitioner may opt to travel in pursuit of
relief, beyond the Fourteenth Amendment. For example, several claims filed under
K.S.A. 60-1501 are grounded in accusations that prison officials violated the Eighth
Amendment by engaging in deliberate indifference toward a prisoner's medical needs.
See Stolte v. Cummings, 31 Kan. App. 2d 639, 70 P.3d 695 (2003); Darnell v. Simmons,
30 Kan. App. 2d 778, 48 P.3d 1278 (2002); Spry v. Pryor, No. 119,573, 2019 WL
638266 (Kan. App. 2019) (unpublished opinion); James v. McKune, No. 102,979, 2010
WL 446064 (Kan. App. 2010) (unpublished opinion).
Bowers uses this alternative approach and argues the deliberate indifference
standard is equally applicable to the failure to protect inmates from violence and harm.
Although he cites no Kansas authority to support his assertion, he does highlight a case
from the Tenth Circuit Court of Appeals that is favorable to his position, Hooks v. Atoki,
983 F.3d 1193 (10th Cir. 2020). In that case, Hooks argued that Officer "Atoki exhibited
deliberate indifference by failing to intervene during a vicious, gang-related jailhouse
assault." 983 F.3d at 1196. While the court ultimately rejected Hooks' argument, it
nevertheless clarified that deliberate indifference is not restricted to the medical treatment
context. 983 F.3d at 1196. See also Contreras on behalf of A.L. v. Dona Ana County
Board of County Commissioners, 965 F.3d 1114, 1115-22, 1125-41 (10th Cir. 2020)
(Tymkovich, C.J., concurring); (Baldock, J., concurring in part) (includes two separate
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discussions regarding the viability of deliberate indifference in the context of a guard's
failure to protect inmates).
A broader application of deliberate indifference makes logical sense, given that a
primary case relied on by Kansas courts in the medial mistreatment context, Farmer v.
Brennan, 511 U.S. 825, 828-30, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994), involved the
allegation of an Eighth Amendment violation that arose after Farmer was raped and
beaten by a cellmate. The Court explained that "[a] prison official's 'deliberate
indifference' to a substantial risk of serious harm to an inmate violates the Eighth
Amendment." 511 U.S. at 828; see also State v. Scott, 265 Kan. 1, Syl. ¶ 1, 961 P.2d 667(1998) ("The Cruel and Unusual Punishment Clauses of the Eighth Amendment to the
United States Constitution and § 9 of the Kansas Constitution Bill of Rights are nearly
identical and are to be construed similarly.").
Kansas courts have therefore looked favorably upon Farmer when conducting a
deliberate indifference analysis. The governing test includes objective and subjective
components. Cupples v. State, 18 Kan. App. 2d 864, 869, 861 P.2d 1360 (1993). "The
objective component is met if the deprivation is 'sufficiently serious.'" Darnell v.
Simmons, 30 Kan. App. 2d at 781 (quoting Farmer, 511 U.S. at 834). The Farmer Court
clarified that for claims "based on a failure to prevent harm, the inmate must show that he
is incarcerated under conditions posing a substantial risk of serious harm." Farmer, 511
U.S. at 834. "The subjective component is met if a prison official 'knows of and
disregards an excessive risk to inmate health or safety.'" 30 Kan. App. 2d at 781 (quoting
Farmer, 511 U.S. at 837).
We acknowledge that, over time, courts have struggled to define parameters for
deliberate indifference. In Cupples, this court approvingly quoted the Tenth Circuit's
explanation of the theory in Berry v. City of Muskogee, 900 F.2d 1489, 1495 (10th Cir.
1990), that deliberate indifference requires more than negligence and that "an official or
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municipality acts with deliberate indifference if its conduct (or adopted policy) disregards
a known or obvious risk that is very likely to result in the violation of a prisoner's
constitutional rights." 18 Kan. App. 2d at 869. Inmates need not show intentional harm.
Farmer, 511 U.S. at 835. See also Strain v. Regaldo, 977 F.3d 984, 991 (10th Cir. 2020)
("deliberate indifference often stems from inaction.").
A panel of this court recently noted that Judge Posner described deliberate
indifference by analogy:
"'Prison employees who act with deliberate indifference to the inmates' safety violate the
Eighth Amendment. But to be guilty of ‘deliberate indifference’ they must know they are
creating a substantial risk of bodily harm. If they place a prisoner in a cell that has a
cobra, but they do not know that there is a cobra there (or even that there is a high
probability that there is a cobra there), they are not guilty of deliberate indifference even
if they should have known about the risk, that is, even if they were negligent—even
grossly negligent or even reckless in the tort sense—in failing to know. Bowers v.
DeVito, 686 F.2d 616, 618 (7th Cir. 1982). But if they know that there is a cobra there or
at least that there is a high probability of a cobra there, and do nothing, that is deliberate
indifference. Farmer v. Brennan, 511 U.S. 825, 835, 114 S. Ct. 1970, 128 L. Ed. 2d 811(1994); Miller v. Neathery, 52 F.3d 634, 638 (7th Cir. 1995).' Billman v. Indiana Dep't of
Corrections, 56 F.3d 785, 788 (7th Cir. 1995)." Astorga v. Leavenworth County Sheriff,
No. 122,387, 2020 WL 6533282, at *9 (Kan. App. 2020) (unpublished opinion).
With all this guiding authority in mind, our task is to resolve whether the facts in
Bowers' case, coupled with their reasonable inferences, give rise to a claim of deliberate
indifference. We find the objective prong is satisfied because Bowers endured an
extensive physical attack at the hands of three other inmates. Such an attack is properly
characterized as sufficiently serious because Bowers lived in conditions that subjected
him to a serious risk of harm. We likewise conclude the subjective prong is fulfilled
because Bowers explained that he notified the jailers when he was threatened with
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assault, and they sat idly by. Thus, detention officials knew of and disregarded an
excessive risk to Bowers' safety.
As a result, the allegations set forth in Bowers' initial K.S.A. 60-1501 petition
prompt two alternative theories of relief: one based on a Fourteenth Amendment liberty
interest, and the other on deliberate indifference. The district court's order of dismissal
failed to acknowledge the allegations that inmates assaulted Bowers and detention
officials declined to render assistance. K.S.A. 2020 Supp. 60-1503(a) clearly states:
"If the judge finds that the plaintiff may be entitled to relief, the judge shall issue the writ
and order the person to whom the writ is directed to file an answer within the period of
time fixed by the court or to take such other action as the judge deems appropriate."
(Emphasis added.)
The district court's incomplete reading of the petition led to its failure to
acknowledge theories under which Bowers may have been entitled to relief. Summary
dismissal was therefore inappropriate. The district court's judgment must be reversed and
remanded with an order to issue a writ that requires Bellendir to file an answer. See
K.S.A. 2020 Supp. 60-1503(a); see also Germann v. Conover, No. 110,643, 2014 WL
3397814, at *4 (Kan. App. 2014) (unpublished opinion) ("Germann has sufficiently
alleged due process violations in his 60-1501 petition to preclude summary dismissal.
We, of course, express no view on whether those allegations can or will be substantiated
or on the appropriate remedy if they were. The district court should not have summarily
dismissed the petition.").
Reversed and remanded with directions.
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