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No. 103,609 IN THE COURT OF APPEALS OF THE STATE OF KANSAS TYRON L. HARDAWAY, Appellant, v. LARNED CORRECTIONAL FACILITY, et al., Appellees.

SYLLABUS BY THE COURT

An inmate has not yet suffered a deprivation of any constitutionally protected interest when prison officials suspend the imposition of a disciplinary sanction against that inmate that would otherwise have taken away something in which that inmate does have a constitutionally protected interest.

Appeal from Pawnee District Court; BRUCE T. GATTERMAN, judge. Opinion filed September 3, 2010. Affirmed.

Tyron L. Hardaway, appellant pro se.

Jon D. Graves, of Kansas Department of Corrections, for appellees.

Before HILL, P.J., PIERRON and LEBEN, JJ.

LEBEN, J.: Inmate Tyron Hardaway was convicted administratively for taking a cup of soda that apparently belonged to a prison food-service employee and then drinking that soda without permission. A hearing officer ordered that he lose 30 days of good-time credit and serve a 15-day disciplinary segregation, but both sanctions were suspended--
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not to be imposed at all if he received no further reprimands in the next 120 days. He didn't, and the sanctions weren't imposed.

Hardaway has nonetheless filed a lawsuit under K.S.A. 60-1501, contending that he wasn't given a fair hearing--thus denying him due process--on the charge of taking and drinking the soda without permission. The district court dismissed his claim on the merits after finding no due-process violation, and Hardaway appealed.

The State argues on appeal that Hardaway has not shown that he has any protected liberty interest giving rise to due-process protections. We agree.

Prison officials don't have to provide due-process hearings for most of the decisions they must make in determining the daily activities of inmates. You couldn't run a prison that way. To gain court review of a prison disciplinary sanction, the inmate's claim under K.S.A. 60-1501 must assert the deprivation of some constitutionally protected interest. Otherwise, the petition may be summarily dismissed. Anderson v. McKune, 23 Kan. App. 2d 803, 806-07, 937 P.2d 16, rev. denied 262 Kan. 959, cert. denied 522 U.S. 958 (1997); see Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974); Hogue v. Bruce, 279 Kan. 848, 850, 113 P.3d 234 (2005). We must begin, then, by determining whether a constitutionally protected interest was implicated in Hardaway's punishment.

A disciplinary segregation doesn't rise to the level of a constitutionally protected interest. The Kansas Supreme Court has held that a prisoner has no protected liberty interest in remaining in the general prison population rather than being separated for a time. Murphy v. Nelson, 260 Kan. 589, Syl.

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