Judge Nugent

11-05115 State of Kansas v. Van Horn (Doc. # 47)

State of Kansas v. Van Horn, 11-05115 (Bankr. D. Kan. Jun. 27, 2012) Doc. # 47

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SIGNED this 26th day of June, 2012.



IN RE: )
DAVID WILLIAM VAN HORN, ) Case No. 11-10352
) Chapter 7
Debtor. )

Plaintiff, )
vs. ) Adversary No. 11-5115

Defendant. )



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Debtor David William Van Horn was confined to the Ellsworth Correctional Facility serving
a sentence for a felony conviction when, on November 23, 2001, he escaped.1 Van Horn was
apprehended later that same day and charged in Ellsworth County District Court with aggravated
escape, a severity level 8 “nonperson” felony.2 He was convicted and sentenced to an additional nine
months’ incarceration to run consecutively with his prior sentence.3 He was also subjected to inmate
discipline at Ellsworth Correctional Facility and, after pleading guilty in that process, received an
administrative sanction that involved loss of good time, time in segregation, and an order to make
restitution of $2,921.94, the precise amount of overtime, mileage and expenses relating to the use of
a K-9 unit to track and apprehend him.4 This obligation is the only debt scheduled by Van Horn on
the schedules he filed in this bankruptcy case. The State seeks summary judgment on its claims that
this debt should be excepted from Van Horn’s discharge. Section 523(a)(6) makes nondischargeable
any debt that the debtor incurs as a result of willful and malicious injury done to another or
another’s property. Section 523(a)(7) of the Bankruptcy Code excepts from discharge any debt
incurred as a fine, penalty or forfeiture payable to a governmental unit that is not to compensate a
pecuniary loss. The facts surrounding the debtor’s conduct at Ellsworth are undisputed, but because
the State’s submission does not adequately document the amount of its claim, I am unable to grant
summary judgment at this time as explained below.

Standards on Summary Judgment; Defendant’s Default.

Van Horn was serving a sentence imposed by the Sedgwick County District Court in case no. 98 CR 2648.
Adv. Dkt. 22-1.
KAN. STAT. ANN. § 21-5911, formerly KAN. STAT. ANN. § 21-3810(a)(1) and (c)(1); Adv. Dkt. 22-2, p. 26
and 22-5.
Adv. Dkt. 22-5.
The Kansas Department of Corrections regulations make Van Horn’s aggravated escape from custody a
violation of Department of Corrections regulations, a Class I offense and subject to disciplinary proceedings
and penalty. See KAN. ADMIN. REG. § 44-12-1001(a) and § 44-12-1301(2003); Adv. Dkt. 22-2, p. 5.


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Van Horn filed his chapter 7 petition on February 23, 2011 while incarcerated in the
Hutchinson Correctional Facility.5 The State of Kansas timely filed this adversary proceeding on
May 20, 2011. Van Horn filed an answer, but has not since participated in the pretrial process. The
docket report reflects that by February, 2012, Van Horn had been released from the Hutchinson
Correctional Facility and left no forwarding address, resulting in the Court’s mailings to Van Horn
being returned as undeliverable.6 On February 15, 2012, the Court entered the Final Pretrial Order
under D. Kan. L.B.R. 9074.1 without Van Horn’s contributions, approval, or objection.7 Likewise,
Van Horn did not respond to the State’s summary judgment motion, requiring the Court to
independently review the record and arguments to determine whether the State is entitled to
summary judgment.8 Fed. R. Bankr. P. 7056 makes Fed. R. Civ. P 56 applicable in adversary
proceedings. Rule 56(e)(2) allows any unaddressed factual contention that is properly supported
deemed undisputed for the purpose of this motion.9 Subsection (e)(3) of the Rule allows granting
summary judgment upon review only if the supporting materials show that the State is entitled to
judgment as a matter of law based upon the uncontroverted facts.10

As the movant and the party with the burden of proof at trial on its dischargeability claims,
the State has the initial burden of production to establish the essential elements of each of its claims
and the absence of a genuine dispute of material fact.11 If the State’s motion is properly supported,
Van Horn can not resist the motion merely by reference to the denials in his answer, but must come
See Case No. 11-10352, Dkt. 3, 12 and 18.
See Adv. Dkt. 28 and 29.
7 Adv. Dkt. 20.
Reed v. Bennett, 312 F.3d 1190 (10th Cir. 2002) (Nonmovant’s failure to respond to summary judgment
motion is not, by itself, a sufficient basis to grant summary judgment.).
See also, D. Kan. L. B.R. 7056.1(a) (facts not controverted are deemed admitted)
Reed v. Bennett, supra. (Summary judgment is appropriate if the movant has met its initial burden of
production under Rule 56(c) that no genuine dispute of a material fact exists and those undisputed facts
entitle the movant to judgment as a matter of law.); Murray v. City of Tahlequah, Okla., 312 F.3d 1196, 11991200
(10th Cir. 2002) (same).
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).


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forward with properly supported facts to demonstrate the existence of genuine factual disputes or
the absence of evidence of an essential element of the State’s claim.12 To prevail on its § 523(a)(6)
discharge exception for willful and malicious injury, the State must show that Van Horn intended
not only the act itself (the escape), but also intended to cause injury to the State.13 As for the State’s
§ 523(a)(7) discharge exception claim, it must show that Van Horn’s restitution order in the prison
administrative proceeding is a debt for “a fine, penalty, or forfeiture payable to and for the benefit of
a governmental unit, and is not compensation for actual pecuniary loss.” We turn to the State’s
statement of uncontroverted facts to determine whether it has demonstrated the essential elements
of these two discharge exceptions.

Uncontroverted Facts

The State’s statement of uncontroverted facts14 shows that the debtor was assessed
restitution of $2,921.94 in the disciplinary proceeding for escaping from the Ellsworth facility and
violation of Department of Corrections regulations.15 According to the affidavit of Robert E.
Wasinger (“Wasinger Affidavit”), that amount was calculated based upon time and expenses
expended by correctional personnel in tracking and apprehending Van Horn after his escape.16 This
disciplinary proceeding and assessment of sanctions was reviewed by the Secretary of Corrections
and affirmed. While incarcerated at Lansing, Van Horn also sought a writ of habeas corpus in the
Leavenworth County District Court challenging the Ellsworth Correctional Facility discipline, but
Id. at 325-26. See Rule 56(c) and (e); D. Kan. L.B.R. 7056.1(b). See also McKibben v. Chubb, 840 F.2d 1525,
1528 (10th Cir. 1988) (Conclusory allegations by the party opposing summary judgment are not sufficient to
establish an issue of fact and defeat the motion, citing McVay v. Western Plains Corp., 823 F.2d 1395 (10th Cir.
In re Graham, 455 B.R. 227, 232-33 (Bankr. D. Colo. 2011) (Section 523(a)(6) may apply to a broad range of
conduct causing harm to people or property but to be nondischargeable the debtor must have intended the
consequences of his act or believed the consequences were substantially certain to result from the act); Panalis

v. Moore (In re Moore), 357 F.3d 1125, 1128-29 (10th Cir. 2004).
Dkt. 22, p. 2.
See KAN. ADMIN. REG. § 44-12-1001(a) and § 44-12-1301(2003); Adv. Dkt. 22-2, p. 5.
Adv. Dkt. 22-2, pp. 7-14.

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the writ was denied.17 There are exhibits, including the Wasinger Affidavit, that suggest his inmate
account was frozen and the restitution was collected from his inmate account but there is nothing in
the record concerning the current amount of the debt. The State did not file a proof of claim.

Conclusions of Law

A. Willful and Malicious Damage: §523(a)(6)
Section §523(a)(6) excepts from discharge debts that are caused by the willful and malicious
behavior of the debtor. To make a case under this subsection, a creditor must demonstrate that the
debtor intended not only to commit the act that caused the damage, but must also intend its
consequences.18 Debts arising from recklessly or negligently inflicted injury do not fall within the
reach of § 523(a)(6).19 A willful and malicious injury may be inferred from the circumstances giving
rise to the injury, since a debtor rarely admits that he deliberately or intentionally injured another.

 Here, Van Horn was convicted in the state criminal court of “aggravated” escape under
then KAN. STAT. ANN. § 21-3810(a)(1). The aggravating factor charged in that case was “[e]scaping
while held in lawful custody (1) upon a charge or conviction of a felony . . .”20 Thus, the State did
not establish any act of violence or other misconduct beyond the intentional act of escaping while
incarcerated for a felony. This by itself does not support a finding of willful and malicious injury.

The State supplements that claim by including copies of Van Horn’s appeal and grievances
in the disciplinary proceedings and his habeas case. The general suggestion is that Van Horn may
have been a difficult prisoner, but nothing in the summary judgment record suggests that Van Horn

17 Adv. Dkt. 22-6; Case No. 2004-CV-489, December 15, 2004.
Kawaauhau v. Geiger, 526 U.S. 57, 61-62 (1998).
Id. at 64.
KAN. STAT. ANN. § 21-3810(a)(1)(2007), repealed Laws 2006, ch. 169, § 98, re-enacted as KAN. STAT. ANN. §
21-5911(b)(1)(A) (2011 Supp.). Cf. KAN. STAT. ANN. § 21-3810(b)(1) which also defines aggravated escape
from custody as “[e]scaping effected or facilitated by the use of violence or the threat of violence against any
person while held in lawful custody . . . on a . . . conviction of any crime.” Nothing in the State’s
uncontroverted facts or submission suggests that Van Horn used violence or the threat of violence to escape

– a circumstance more likely to evidence willful or malicious injury.

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knew or had reason to know that he would expose the State to financial loss if he absconded, that he
intended to cause harm or injury, or that he committed some form of mayhem in the process.21 All
this record shows is that he “walked away” from the Ellsworth facility, was gone for a few hours,
and was criminally prosecuted and administratively sanctioned for that conduct.22 Nowhere in the
records of the criminal prosecution or the prison disciplinary proceeding is there a finding of a
willful and malicious injury or facts from which a willful and malicious injury can be inferred.23
There is not enough here to conclude that this debt should be excepted from Van Horn’s discharge
under §523(a)(6). Because the State has not come forward with evidence of willful and malicious
injury which is an essential element of its claim, summary judgment must be denied on the State’s §
523(a)(6) cause of action.

Restitution as a fine or penalty: §523(a)(7)

Section 523(a)(7) excepts a debt from a debtor’s discharge “. . . to the extent such debt is for

a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not

compensation for actual pecuniary loss. . . .”24 Restitution is not mentioned in this subsection, but

the United States Supreme Court held in Kelly v. Robinson that restitution that is ordered as a penal

sanction is included in the “fine, penalty, or forfeiture” that is protected by § 523(a)(7) and that

enforcing those sanctions in bankruptcy respects “an important aspect of sovereignty retained by the


Cf. In re Sintobin, 253 B.R. 826 (Bankr. N.D. Ohio 2000) (tenant debtors’ debt arising from their children and
friends spray-painting walls, damaging doors and vandalizing leased premises was a willful and malicious
injury that would be excepted from discharge where parents encouraged and influenced the misconduct).
See Disciplinary Report, Adv. Dkt. 22-2, p. 4; See also In re Allen, 75 B.R. 742 (Bankr. C.D. Cal. 1987) (fine
imposed upon debtor by union for crossing the picket line was dischargeable where debtor’s conduct did not
inflict a willful and malicious injury on the union).
See In re Cole, 234 B.R. 417 (Bankr. W.D. Wis. 1999) (Restitution obligation imposed upon debtor as a result
of debtor’s commission of a battery while in prison, as determined by prison disciplinary board, collaterally
estopped debtor from contesting that debt was one for willful and malicious injury.)
See 11 U.S.C. § 523(a)(7).
25 479 U.S. 36, 47, 107 S.Ct. 353, 93 L.Ed. 2d 216 (1986).


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In Kelly, the debtor pleaded guilty to larceny in state court for improperly receiving $9,932 in
state welfare benefits. The state court sentenced her to prison but suspended the sentence and
placed debtor on five years’ probation. As a condition of probation, the state court ordered debtor
to make restitution of $100 each month throughout her probation. Shortly thereafter, debtor filed a
chapter 7 bankruptcy and was granted a discharge. Debtor stopped paying restitution contending
that the restitution obligation was discharged. When the state challenged this position, debtor filed
an adversary proceeding seeking a determination that the debt was discharged.

The Supreme Court held “that § 523(a)(7) preserves from discharge any condition a state
criminal court imposes as part of a criminal sentence.”26 The requirement that a penalty not be
compensation for actual pecuniary loss prevents the discharge of restitution because “‘the
[restitution] obligation is rooted in the traditional responsibility of a state to protect its citizens by
enforcing its criminal statutes and to rehabilitate an offender by imposing a criminal sanction for
that purpose.’”27 In re Troff, the Tenth Circuit concluded that a court-imposed restitution obligation could
not be discharged even though the debtor’s restitution payments were forwarded to the crime
victim.28 As the Circuit succinctly stated, “[t]he Supreme Court held [in Kelly] that restitution
obligations imposed as part of a criminal sentence were not dischargeable under § 523(a)(7) because
principles of federalism do not permit a bankruptcy court to interfere with a state criminal

Here, the restitution award in question was not part of a criminal sentence. Instead, it
nominally took the form of a penalty imposed for violating the prison regulations.30 Not surprisingly,

Id. at 50.
Id. at 52, quoting In re Pellegrino, 42 B.R. 129, 133 (Bankr. D. Conn. 1984).
In re Troff, 488 F.3d 1237 (10th Cir. 2007).
Id. at 1239 [Emphasis added.].
KAN. ADMIN. REG. § 44-12-1001(a).


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escaping from the penitentiary is a violation of prison regulations and may be punished by several
enumerated “penalties” including restitution.31 The restitution is payable to a governmental unit –
the Kansas Department of Corrections. As another bankruptcy judge has noted, restitution imposed
in a prisoner disciplinary proceeding may be nondischargeable under (a)(7) without having been
incurred as a result of an actual court conviction when state law authorizes the administrator to
impose the penalty.32 Kansas law authorizes the Kansas Department of Corrections to do that.33
While Kelly specifically dealt with restitution rendered in a criminal case, nothing in the words of the
statute itself limits the exception to discharge to criminal sentences or court-imposed fines. The
Court concludes that this award meets the “for the benefit of a governmental unit” element of §
523(a)(7) and, if it is penal in nature, it is a “fine, penalty, or forfeiture.”

However, because the amount assessed against Van Horn appears to have been calculated
based upon the actual expenses that the State incurred as a result of Van Horn’s conduct, i.e. the
time spent by correctional personnel in that endeavor multiplied by their rates of pay, I question
whether its purpose is punitive or merely compensatory. There are cases that deal with fines or
restitution that are based on the actual costs of the regulatory bodies or agencies that assess them.
One court found an assessment of attorney’s fees by a state board of attorney discipline against a
disbarred lawyer to be a pecuniary assessment and not a fine.34 The Fifth Circuit has held that costs
assessed by a state dentistry board were likewise found compensatory and not a fine.35 Other courts

See KAN. ADMIN. REG. § 44-12-1301(b)(7). Aggravated escape while in custody for a felony conviction
under Kansas law qualifies as a Class I offense. See KAN. ADMIN. REG. § 44-12-1301(a)(2).
See In re Reimann, 436 B.R. 564, 567-68 (Bankr. E.D. Wis. 2010).
33 See KAN. STAT. ANN. § 75-5210, et seq.
In re Love, 442 B.R. 868 (Bankr. M.D. Tenn. 2011).
In re Schaffer, 515 F.3d 424 (5th Cir. 2008).


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have found that attorneys fees and other cost-based sanctions are not necessarily compensatory in
nature.36 What matters is whether the sanction is penal and rehabilitative.

In this case, Van Horn was disciplined by the loss of good time, being placed in
administrative segregation, and being made to pay the State an amount equal to the sum of the
overtime paid prison personnel in pursuing him, mileage on State vehicles used in that endeavor,
and the costs of using a K-9 unit. KAN. ADMIN. REG. § 44-12-1301(b)(7) makes restitution one of
the “penalties” for committing a Class I disciplinary offense. KAN. ADMIN. REG. § 44-12-1306(b)
contemplates that restitution will be paid to the state and deposited in the general fund. Restitution
may only be collected from a prisoner’s wages, and a prisoner is no longer required to pay it when he
has been released from custody, unless he is in work-release or other corrections-related work, in
which case it is collected from his wages from those pursuits.37 The amount of restitution ordered is
“limited to a reasonable amount.”38 Basing the amount of the sanction on the State’s expenses
incurred in apprehending Van Horn is “reasonable.” The sanction was a part of his punishment for
violating the prison’s rules and was therefore penal in nature.

What is less clear on summary judgment is how to quantify the amount of debt to be
excepted from discharge. Although the State accurately presented the original restitution sanction as
the amount of $2,921.94, the summary judgment record presented by the State suggests that it may
have collected some portion of this amount from Van Horn’s inmate account.39 The Court cannot
determine how much has been collected and is therefore unable to enter summary judgment in a
liquidated amount on the (a)(7) cause.

Reimann, 567. See also In re Haberman, 137 B.R. 292, 295 (Bankr. E.D. Wis. 1992) and In re Smith, 317 B.R.
302, 309-10 (Bankr. D. Md. 2004).
KAN. ADMIN. REG. § 44-12-1306(a)(3) and (4).
38 KAN. ADMIN. REG. § 44-12-1306(a)(4).
See Wasinger Affidavit ¶ 7, Adv. Dkt. 22-1; Inmate Account, Adv. Dkt. 22-2, p. 34; Adv. Dkt. 22-3, p. 3
(“Restitution owed freezes your account until it is paid in full.”).


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Accordingly, the Court will defer further action in this matter and allow the State to
supplement its papers with a supplemental affidavit that sets forth how much of the restitution
remains unpaid. The State will file its supplemental affidavit within 14 days of the entry of this order
and the defendant is granted 14 days from the date the state’s affidavit is filed to respond in writing.
Upon receiving these papers, the Court will determine whether there remains a controversy
concerning the amount of restitution remaining due and issue a supplemental order on the §
523(a)(7) claim accordingly.

Summary judgment on the § 523(a)(6) exception from discharge claim is DENIED. A
partial judgment on decision shall issue.
# # #


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