RENDERED: AUGUST 28, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-001386-MR
DARWIN GRAY APPELLANT
APPEAL FROM OLDHAM CIRCUIT COURT
v. HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO. 18-CI-00431
DEPARTMENT OF CORRECTIONS APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, JONES, AND MCNEILL, JUDGES.
JONES, JUDGE: Darwin Gray, pro se, appeals from the Oldham Circuit Court’s
order dismissing his petition for a declaration of rights, entered on April 2, 2019,
and the circuit court’s denial of his motion to alter, amend, or vacate the judgment,
which the circuit court entered on June 27, 2019. Having reviewed the record in
conjunction with all applicable legal authority, we affirm.
Gray is an inmate currently serving a sentence with the appellee,
Kentucky Department of Corrections (DOC). On July 9, 2017, while incarcerated
at the Roederer Correctional Complex in LaGrange, Kentucky, Gray was
conversing with his girlfriend using the facility’s monitored telephone system.
Gray and his girlfriend began arguing, and Gray uttered what DOC employees
construed as a threat to escape.1 As a result, the DOC’s adjustment committee
charged Gray with violating DOC Policies and Procedures (CPP)
15.2(II)(C)(VI)(1) – Escape (Inchoate). After finding him guilty of the infraction,
the adjustment committee penalized Gray with thirty days’ segregation, suspended
for one hundred eighty days, and the loss of one hundred eighty days of statutory
good time on his sentence.
After exhausting his administrative remedies, Gray filed a petition for
a declaration of rights in Oldham Circuit Court. The DOC moved to dismiss the
petition, and the circuit court summarily granted the DOC’s motion by a written
order. Gray then moved the circuit court to alter, amend, or vacate the judgment
under CR2 52.02 and CR 59.05. On June 27, 2019, the circuit court entered an
1
Gray told his girlfriend not to “play” with him, stating, “Don’t get it twisted ‘cause I could
easily go to Blackburn [Correctional Complex, the minimum-security facility].” He then stated,
“A Dodge Magnum will be coming to pick me up . . . if I tell that Dodge Magnum to come get
me.”
2
Kentucky Rules of Civil Procedure.
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order denying Gray’s motion. In its order, the circuit court found that Gray’s
petition was now moot because his lost statutory good time had been restored to
him; with the restoration of his good time, Gray no longer suffered from the loss of
a protected liberty interest. This appeal followed.
In his pro se brief, Gray contends the restoration of his statutory good
time does not make his case moot because the DOC’s penalties cost him the
opportunity to earn meritorious good time credits on his sentence. He also argues
the infraction adversely affected the security level of his incarceration.
“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
implicated by the Constitution, or a state law or regulation.” Mahoney v. Carter,
938 S.W.2d 575, 576 (Ky. 1997) (citation omitted).
The circuit court correctly determined that Gray’s petition was moot.
“The general rule is . . . that where, pending an appeal, an event occurs which
makes a determination of the question unnecessary or which would render the
judgment that might be pronounced ineffectual, the appeal should be dismissed.”
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Morgan v. Getter, 441 S.W.3d 94, 99 (Ky. 2014) (citations and internal quotation
marks omitted). Although the loss of statutory good time implicates a protected
liberty interest, see Wolff v. McDonnell, 418 U.S. 539, 557, 94 S. Ct. 2963, 2975,
41 L. Ed. 2d 935 (1974), it is uncontroverted that Gray’s statutory good time was
restored to him. Despite Gray’s arguments to the contrary, there is no protected
liberty interest in the lost opportunity to earn meritorious good time credits.
Marksberry, 126 S.W.3d at 753. In addition, “inmates do not have a constitutional
right to a particular security classification or to be housed in a particular
institution.” Id. at 751 (citations omitted).
For the foregoing reasons, we affirm the Oldham Circuit Court’s
orders dismissing Gray’s petition.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Darwin Gray, pro se Richard D. Lilly
Burgin, Kentucky Frankfort, Kentucky
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