October 23, 2017
Fitzpatrick says he will file appeal
District judge John Chafin found Big Sandy Detention Center warden F.D. “Pete” Fitzpatrick in contempt of court and sentenced him to 30 days (probated for two years) in his own jail Friday in Martin District Court. Chafin ruled that Fitzpatrick was ten days late in complying with his order concerning a prisoner at BSRDC.
Fitzpatrick issued a press release this morning (Monday) stating that he intends to appeal the ruling by Judge Chafin. (See statement in story below)
According to the judge’s order BSRDC confiscated property (money) from prisoner Rayshawn Greer and deposited it into its bank account instead of giving it back to him immediately. Also, the judge noted that Greer was not charged with promoting contraband as stated by Fitzpatrick.
It also says the booking fee charged by BSRDC is the highest in the state ($130).
“The question is whether BSRDC has the right to keep the prisoner’s property without charging him with a crime or following any due process rights of law regarding a forfeiture of that property,” Chafin said in his ruling.
The gist of the court’s findings:
“…The Court does not find that this belated payment purges Fitzpatrick of contempt. Obviously, had he (Fitzpatrick) paid what he was ordered to do before the October 3, hearing then the issue would have been moot. Mr. Fitzpatrick’s arrogance is duly noted. Therefore, based upon the foregoing, the Court finds that Fitzpatrick has failed to establish any reasonable grounds for failing to follow the orders of this Court and is in contempt of Court.
Although he has tendered payment on October 13, 2017, this is too little too late.
It is the order of this Court that Fitzpatrick is hereby sentenced to 30 days of incarceration in the Big Sandy Regional Detention Center. This 30 days shall be probated for a period of 2 years conditioned upon compliance with the orders of this Court.
This is a final and appealable order and there being no just cause for delay of its entry. So ordered this the day of October, 2017.
BSRDC arrorney Nelson Sparks of Louisa did not immediately respond to a request for comment on the ruling today (Monday)
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Here is Chafin’s order:
MARTIN DISTRICT COURT CASE NO.: 17-F-00098 COMMONWEALTH OF KENTUCKY VS: ORDER RAYSHAWN GREER ENTERED October 20, 2017
This matter having come before the Court on October 3, 2017 pursuant to an order for Pete Fitzpatrick to show cause if he should have any as to why he should not be held in contempt of Court for failing to abide by the Court’s order of August 2, 2017. Fitzpatrick was represented by the Hon. Nelson Sparks and the Defendant Rayshawn Greer was represented by the Hon. Casey Keathley whom appeared for the Hon. Garland Amett.
The Court heard testimony from Pete Fitzpatrick and Michael Copley. Since Mr. Amett was on vacation this week, the Court allowed him ten (10) days to supplement the record with the matter being submitted for decision on October 16, 2017. The Court notes that Mr. Amett did submit a reply to the Fitzpatrick’s response to show cause.
Fitzpatrick has forwarded a notice of compliance with a copy of a check payable to Rayshawn T. Greer in the amount of $353.00 dated October 13, 2017. The Court will address each of the arguments raised by Fitzpatrick.
First of all, Fitzpatrick relies upon KRS 441.265 (1)) as requiring a prisoner in a county jail to reimburse the county for the cost of confinement, including a booking fee of $130.00. According to Fitzpatrick’s testimony, not all prisoners pay this fee. In addition, there is no type of sliding scale for ladigency utilized by the Big Sandy Regional Detention Center (hereinafter referred to as BSRDC). Moreover, the BSRDC does not make any efforts to institute collective procedures for individuals that fail to pay.
Statutes must be given their plain meaning. KRS 441.265 (1), which is relied upon by Fitzpatrick, provides that a prisoner in county jail shall reimburse the county for expenses except for good cause shown. In this case, this Court specially directed the BSRDC to return Greer’s money and not charge the administrative processing or booking fee.
Fitzpatrick testified that he received the August 2, 2017 order of the Court. A court order would appear to be sufficient to satisfy any good cause exception. In addition, the statute relied upon by Fitzpatrick, provides that fees may be automatically deducted from the prisoner’s property. The word ‘may’ is permissive and not mandatory. A Court order directing the return of money is more than sufficient in this case.
Moreover, this statute clearly states that a prisoner in a county jail shall be required by the sentencing Court to reimburse the county for expenses. The statute relied upon by Fitzpatrick clearly establishes that the procedure for returning prisoner property for payment of unauthorized assessments by BSRDC without Court order is not legal. Fitzpatrick’s reliance upon this statute is misplaced and does not establish good cause for him to ignore the Court’s order.
Fitzpatrick seeks to also rely upon KRS 441.265 as allowing BSRDC to set the highest booking fees in the Commonwealth of Kentucky. As noted by Mr. Amett’s reply, area jails such as Floyd ($25.00), Pike ($25.00), Letcher ($25.00), Kentucky River ($20.00), Fayette ($35.00), and Leslie ($50.00) charge substantially less than BSRDC. The statute relied upon by Fitzpatrick clearly allows a fee of the lesser of a per diem ($25.00) or a maximum of $50.00. It is difficult to comprehend what part of KRS 441.265 that Fitzpatrick is following but readily apparent that any reliance is misplaced.
The second argument advanced by Fitzpatrick is that jail personnel fully complied with 501 KAR 3:120 in admitting Greer to jail and searching him. If the Court is to believe Fitzpatrick, Michael Copley initially had Greer’s $353.00 in his possession.
Apparently, Copley left the money and Greer unattended in order to go talk to Fitzpatrick to obtain further instruction regarding the demand for jail fees of $130.00. Copley obtained a copy of KRS 411.265 to give to Greer and allegedly the money had now disappeared. Copley and/or Fitzpatrick then had Greer searched and the money appeared.
The incident report provided by Fitzpatrick is hearsay and not considered in this matter. The money originally surrendered by Greer to Copley was then considered as contraband and confiscated by Fitzpatrick. Supposedly, the contraband was forfeited to the BSRDC treasury without Greer being afforded any due process rights of law. Fitzpatrick conceded in his testimony that Greer was never charged with promoting contraband.
According to Fitzpatrick, BSRDC is not required to charge individuals with a crime before there is a seizure and forfeiture of property. He attaches pages from the BSRDC policy manual to support his position.
Procedure IV on page 147 provided by Fitzpatrick (Exhibit 11) states that “all contraband items will be confiscated and logged.”
However, Fitzpatrick testified that the contraband was deposited into the BSRDC bank account as forfeited property. This procedure without regard to any due process rights afforded to the individual is troubling to the Court especially in light of the fact that Greer was never charged with a crime of promoting contraband. In addition, depositing funds into a general account is not “logging” but unlawful taking of property without being provided any constitutional due process rights of law.
Fitzpatrick testified that a person with a grievance shall be given a form for that purpose but that Greer was never provided one. In addition, although Fitzpatrick makes countless references to the Policies and Procedures manual, it does not appear that a copy of the same is ever provided to a prisoner at any point in time.
The document entitled Exhibit 7, page 123 sets out that money is considered contraband. The Court has no problem with money being considered contraband. However, under the facts of this case with Copley having the money in his possession then basically giving the same back to Greer when he left Greer and the money unattended is difficult to comprehend. Indeed, Fitzpatrick testified that he contacted the Paintsville City Police and an investigation was made by Chief of Police Roe.
Where is this “incident report?” Obviously, the police did not charge Greer with promoting contraband. Exhibit 8, page 129 of the Policy manual provides that possession of money is a category VI violation. Exhibit 9, page 131 sets forth penalties that are to be used for violations. It appears that possession of money carries a 7 or 8 violation code (Exhibit 7, page 129). Penalty 7 is assignment to disciplinary segregation for maximum of 180 days for each offense. Penalty 8, is assignment to disciplinary segregation for a maximum of 1 year for each offense. Neither of these penalties allow forfeiture of the money. In fact, none of the listed eight penalties allow forfeiture of the money for any of six major violation categories. It is readily apparent that Fitzpatrick did not follow the policies and procedures manual that he seeks to rely upon in this case.
In fact, the forfeiture of the money is not authorized by any of the documentation provided by Fitzpatrick. Greer has never been charged with a crime of promoting contraband. Any confiscation of his property is not appropriate under these circumstances. The Court does not question the right of BSRDC to conduct a strip search of a prisoner being brought from another facility. The question is whether BSRDC has the right to keep the prisoner’s property without charging him with a crime or following any due process rights of law regarding a forfeiture of that property.
In the case at bar, the Court issued a specific order that required BSRDC to not charge the processing fee and to return the $353.00 to Greer. It is apparent that Greer is an indigent person and any costs would be waived. Fitzpatrick testified that he received the order. He also testified that he did not appeal the order nor request the Court to alter, amend or vacate the same. Instead, he simply chose to ignore the order.
This Court finds that Fitzpatrick has not only failed to establish good cause for failing to abide by the order but he had no legal basis nor any reasonable grounds as set forth in his own policy manual to fail to follow the Court’s order.
The documents provided by Fitzpatrick support the action taken by the Court. The next issue to be addressed by the Court is the notice of compliance filed by Fitzpatrick ten days after the October 3, 2017 show cause hearing.
The Court does not find that this belated payment purges Fitzpatrick of contempt.
Obviously, had he paid what he was ordered to do before the October 3, hearing then the issue would have been moot. Mr. Fitzpatrick’s arrogance is duly noted. Therefore, based upon the foregoing, the Court finds that Fitzpatrick has failed to establish any reasonable grounds for failing to follow the orders of this Court and is in contempt of Court.
Although he has tendered payment on October 13, 2017, this is too little too late.
It is the order of this Court that Fitzpatrick is hereby sentenced to 30 days of incarceration in the Big Sandy Regional Detention Center. This 30 days shall be probated for a period of 2 years conditioned upon compliance with the orders of this Court.
This is a final and appealable order and there being no just cause for delay of its entry. So ordered this the day of October, 2017.
HON. JOHN T. CHAFIN MARTIN DISTRICT JUDGE CERTIFICATION: This is to certify that a true and correct copy of the above Order was mailed or hand- delivered to the Hon. Nelson Sparks and the Hon. Garland Arnett council for the defendant this 20th day of October of 2017.
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Press Release by BSRDC Administrator F D Pete Fitzpatrick
In reference to the order filed in Martin County District Court last Friday, October 20, 2017 by District Judge John Chafin, it is my intention to appeal the ruling and I am confident that this will be resolved in favor of the Big Sandy Regional Detention Center after review.
— F.D. “Pete” Fitzpatrick