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November 16, 2001; 2:00 p.m. NOT TO BE PUBLISHED

C ommonwealth O f K entucky C ourt O f A ppeals
NO. RANDALL OSBORNE APPEAL FROM MUHLENBERG CIRCUIT COURT HONORABLE DAVID H. JERNIGAN, JUDGE ACTION NO. 00-CI-00365 2001-CA-000208-MR APPELLANT

v.

LEGGETT MORRIS OPINION AFFIRMING ** ** ** ** ** BEFORE: COMBS, HUDDLESTON, and MILLER, Judges.

APPELLEE

COMBS, JUDGE:

Randall Osborne, an inmate at the Green River

Correctional Complex (GRCC), appeals, pro se, from a January 24, 2001, order of the Muhlenberg Circuit Court which dismissed his petition for a declaration of rights. We affirm. Osborne

The relevant facts are not in dispute.

provided a single urine sample for drug screening on June 9, 2000. Osborne's sample came back positive for morphine, As a result of these test results,

alprazolam, and cocaine.

Osborne received three separate disciplinary reports charging him with unauthorized use of drugs or intoxicants in violation of Corrections Policies and Procedures (CPP) Category IV, Item 2. On June 22, 2000, Osborne was convicted on all three counts and received 45 days disciplinary segregation for each offense, to run concurrently, and non-contact visitation for one year.

Osborne then sought judicial review through a declaration of rights petition with the Muhlenberg Circuit Court. The circuit

court granted a motion to dismiss filed by the respondent/ appellee. This appeal follows. Osborne raises two arguments on appeal. The first is

that the GRCC Adjustment Officer, Leggett Morris, violated Osborne's rights under the constitutions of the United States and of Kentucky in finding him guilty of three offenses from one urine test and in failing to follow proper Department of Corrections procedures. Specifically, Osborne argues that Morris

failed to follow CPP 15.2, V,1 which requires rule violations to be processed fairly and to insure protection of inmates' due process rights. Osborne has presented no evidence to indicate he Additionally, as Osborne did not lose

was not treated fairly.

any good time credit, he has not shown that a liberty interest was at issue so as to trigger a requirement of a due-process analysis. See Sandin v. Conner, 115 S.Ct. 2239, 132 L.Ed.2d 418 (1995). We cannot agree that there is an inherent inequity in charging Osborne with three violations from one urine sample. Each drug found in Osborne's urine sample represented and revealed a separate violation of CPP Category IV, Item 2. Thus, If

Osborne committed three violations and was correctly charged. the policy were enforced as Osborne advocates, an inmate might

CPP 15.2, V: "All alleged violations of rules and regulations shall be fairly processed. All inmate due process rights shall be fully protected within the parameters of clearly established law." -2-

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take one illegal substance and then as many other illegal substances as possible prior to a urine test with no additional consequences. Such a plan of enforcement would wholly undermine

the purpose of the rule against the use of controlled substances. Next, Osborne argues that the circuit court abused its discretion in summarily dismissing his petition. carefully reviewed the record, we disagree. Having

The circuit court

reviewed the petition pursuant to Smith v. O'Dea, Ky. App., 939 S.W.2d 353 (1997). controversy. It found no material issues of fact in

The only issue was a question of law regarding

whether Osborne could be charged with three violations from one urine sample. We believe that the trial court properly exercised

its discretion and did not err in dismissing Osborne's petition. The order of the Muhlenberg Circuit Court dismissing Osborne's petition for declaration of rights is affirmed. ALL CONCUR.

BRIEF FOR APPELLANT PRO SE: Randall Osborne Central City, Kentucky

NO BRIEF FOR APPELLEE

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Kentucky Law