RENDERED: JANUARY 15, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1905-MR
RALPH GENTRY APPELLANT
APPEAL FROM MORGAN CIRCUIT COURT
v. HONORABLE REBECCA K. PHILLIPS, JUDGE
ACTION NO. 17-CI-00071
JAMES DAVID GREEN, WARDEN
OF EASTERN KENTUCKY
CORRECTIONAL COMPLEX and
KENTUCKY DEPARTMENT OF
CORRECTIONS APPELLEE
OPINION
AFFIRMING
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BEFORE: CALDWELL, JONES, AND KRAMER, JUDGES.
CALDWELL, JUDGE: Ralph Gentry appeals pro se from the Morgan Circuit
Court’s order denying his petition for a declaration of rights. Finding no error in
the circuit court’s action, we affirm.
FACTS
State inmate Ralph Gentry (Gentry) was disciplined when a visitor
came to see him at the Eastern Kentucky Correctional Complex and refused to
comply with correctional officers’ directions. The visitor was directed to open her
mouth for a search after correctional officers noted she had what appeared to be a
green balloon in her mouth. Rather than comply, the visitor pushed the item down
her throat.
After an investigation, Gentry was charged with attempted possession
or promoting of dangerous contraband on the reasonable assumption that the
balloon inevitably contained a controlled substance which is contraband within a
correctional facility. Following a hearing in which he was found guilty of the
infraction, Gentry appealed to the warden, who affirmed the decision. He then
sought review in circuit court.1
The Morgan Circuit Court found due process had been granted Gentry
but remanded for further findings of fact sufficient to support the determination. A
second disciplinary hearing was held after remand, and Gentry was again found
guilty and penalized with the loss of 180 days of statutory good time and thirty
(30) days of disciplinary segregation, which had already been served. He appealed
1
The circuit court appeal was originally wrongfully filed in Franklin Circuit Court, rather than
the proper venue of Morgan Circuit Court because of the locus of the administrative action. The
matter was transferred.
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to the Morgan Circuit Court once again, arguing that he had a liberty interest in
having lost the ability to earn meritorious good time for the time period the matter
was pending. The circuit court held that the ability to earn meritorious good time
is not a protected liberty interest and the loss of 180 days good time was moot as
the Department of Corrections had since restored the 180 days of statutory good
time and affirmed the second administrative holding.2 Further, the circuit court
held that his allegation of having been treated more harshly than another inmate
with similar allegations against him was not properly presented during the
administrative proceeding, prohibiting appellate review by the circuit court. This
appeal followed.
STANDARD OF REVIEW
The standard of review in a declaratory judgment action is the same as
other civil actions. Baze v. Rees, 217 S.W.3d 207, 210 (Ky. 2006). The circuit
court reviews issues of law in an administrative action de novo, and deference
should be granted an administrative agency’s interpretation of the statutes and
regulations it is charged with implementing. Com., ex rel. Stumbo v. Kentucky
Pub. Serv. Comm’n, 243 S.W.3d 374, 380 (Ky. App. 2007).
2
At some point during the pendency of his appeal to the Circuit Court, the Department had
restored to Gentry the 180 days of statutory good time which had previously been forfeited.
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ANALYSIS
One sentenced to the supervision of the Department of Corrections as
part of punishment for a felony criminal offense may earn two different types of
“good time,” which, if earned and applied, will reduce the total length of the time
served.
Under KRS[3] 197.045(1) prisoners generally
receive ten days good-time credit for each month served
for good behavior.
In addition to this statutory good-time, KRS
197.045(3) provides for good-time credit not to exceed
five days per month for meritorious service to be
awarded by the Corrections Commissioner at his
discretion. This distinction is important because statutory
good-time typically is automatically awarded absent bad
behavior, while meritorious good-time is awarded only
upon an affirmative decision and action by the
Commissioner. Under CPP4 15.3 an inmate must be
recommended for meritorious good-time and the
Commissioner has discretion whether to make an award.
Marksberry v. Chandler, 126 S.W.3d 747, 752 (Ky. App. 2003), as modified on
reh’g (Jan. 30, 2004).
A prisoner has no liberty interest when the warden has discretion to
award or not award a privilege, such as meritorious good time credit. This could
not be any clearer:
3
Kentucky Revised Statutes.
4
Kentucky Corrections Policies and Procedures.
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Because the decision whether to award meritorious good-
time in the first instance is totally within the discretion of
the Commissioner, a claim to any specific amount of
meritorious good-time and loss due to a reduction in the
amount an inmate is eligible to receive is purely
speculative. The loss of the mere opportunity to earn
good-time credit does not constitute a cognizable liberty
interest. In addition, CPP 15.3(VI)(B) indicates that an
inmate shall be considered for an award “up to” 60 days,
but CPP 15.3(VII)(E)(3) states that prison personnel,
“shall use discretion in determining if all or a portion” of
the maximum eligibility amount is submitted to the
Commissioner for approval of an award. Thus,
Marksberry has not shown a protected liberty interest in
meritorious good-time in that the disciplinary action
caused atypical and significant hardship by inevitably
affecting the duration of his original sentence.
Id. at 753.
As this Court has recently observed, issues which are moot will not be
reviewed on appeal, and there is no loss of liberty interest when the opportunity to
earn meritorious good time credit is lost:
“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.” 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
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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).
Gray v. Dep’t of Corrections, No. 2019-CA-1386-MR, 2020 WL 5084276, at *2
(Ky. App. Aug. 28, 2020) (unpublished).
The primary issue before the Court being moot, there being no right to
meritorious good time, and it being truly discretionary as to whether the
Commissioner grants such to an inmate, we cannot disagree with the circuit court’s
decision that the loss of statutory good time matter is moot. Hence, we affirm the
decision of the Morgan Circuit Court and affirm the order dismissing this action.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Ralph Gentry, pro se Allison R. Brown
Burgin, Kentucky Kentucky Department of Corrections
Frankfort, Kentucky
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