Opinion
Nos. 106,787 106,788.
2013-03-1
Ricky R. REDFORD, Appellant, v. STATE of Kansas, ex rel. DEPT. OF CORRECTIONS and Correct Care Solutions, LLC, Appellees.
Appeal from Reno District Court; Timothy J. Chambers, Judge. Ricky R. Redford, appellant pro se. Jon D. Graves, legal counsel, of Kansas Department of Corrections, of Hutchinson, for appellee State of Kansas.
Appeal from Reno District Court; Timothy J. Chambers, Judge.
Ricky R. Redford, appellant pro se. Jon D. Graves, legal counsel, of Kansas Department of Corrections, of Hutchinson, for appellee State of Kansas.
Mary T. Malicoat, of Law Office of Mary T. Malicoat, LLC, of Wichita, for appellee Correct Care Solutions, LLC.
Before BUSER, P.J., MALONE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
BUSER, J.
This is a consolidated appeal of the dismissal of personal injury lawsuits filed by inmate Ricky R. Redford. Because we conclude that Redford exhausted his administrative remedies in keeping with Kansas law and Kansas Department of Corrections (KDOC) procedures prior to filing his lawsuit in Redford I, we reverse the district court's dismissal of that petition and remand for further proceedings. We affirm the district court's dismissal of Redford II. Therefore, we affirm in part, reverse in part, and remand.
Factual and Procedural Background
On February 28, 2007, Redford was an inmate in the custody of KDOC and incarcerated in the Hutchinson Correctional Facility (HCF). While Redford was sleeping inside a dormitory at HCF, he was stabbed by another inmate several times. Redford sustained wounds to his hip, abdomen, arm, and ear. After the stabbing, KDOC transferred Redford to HCF's infirmary where he was hospitalized for 6 days. Redford's subsequent medical care and treatment was provided by Correct Care Solutions, LLC (CCS), a medical facility affiliated with KDOC.
On April 3, 2007, a little over a month after the stabbing, Redford submitted a “Property Damage/Loss or Personal Injury Claim” form pursuant to KDOC's Internal Management Policy and Procedure (IMPP) 01–118. This form requests information from the inmate regarding the nature of the claim and the amount sought as damages from the correctional institution. Redford submitted this form to Paul Wilson, his correctional counselor at HCF. After receiving no response to his claim, on May 24, 2007, Redford submitted a grievance to Wilson regarding the lack of a response. Apparently, Redford's grievance also “went unanswered.”
On October 9, 2007, KDOC transferred Redford to the Norton Correctional Facility (NCF). KDOC subsequently returned Redford to HCF on December 18, 2007. About 2 months after his return, Redford submitted two Form–9 inquiries to HCF's unit team requesting an update on his personal injury claim. Specifically, Redford requested a “written statement” of the status of his claim, which he could attach to “any belated documentation [he] may ... be forced to re-submit to prison authorities to preserve [his] claims.” On March 12, 2008, however, a unit team member responded, “I have not heard the status of this claim.” Consequently, on April 22, 2008, Redford submitted another Form–9 inquiry seeking the status of his personal injury claim, but according to Redford, this effort was also “to no avail.”
On May 27, 2008, KDOC again transferred Redford to NCF, and on July 24, 2008, Redford filed a grievance with NCF's unit team complaining about HCF's failure to respond to his personal injury claim despite his inquiries. Specifically, Redford requested that HCF either process his claim and issue a written response or provide him with written notification that his claim had been “permanently lost, misplaced, or destroyed” and authorize him to refile “a similarly situated ‘Personal Property/Injury Claim’ out-of-time.”
Subsequently, NCF forwarded Redford's grievance to HCF, and on August 7, 2008, Steve Schneider, HCF's Policy and Public Information Officer, issued a response concluding that no further action was necessary because HCF could not verify that Redford submitted a “personal injury claim in a timely manner.” According to Schneider, the unit team had “no record or documentation” regarding Redford's claim, and Redford had “provided no evidence or documentation” proving timely submission of a claim. Dissatisfied, Redford appealed to the Secretary of Corrections, but the Secretary responded: “Cannot use grievance procedure to appeal property claim issue.”
On October 26, 2008, Redford filed a personal injury claim with the Kansas Legislature's joint committee on special claims against the State (joint committee) alleging that the negligence of KDOC and CCS entitled him to damages in excess of $75,000. According to Redford, he decided to file a legislative claim because he believed he had “no recourse left in exhausting [his] available remedies.” On December 19, 2008, after a hearing, the joint committee denied Redford's claim. Redford I
After the joint committee's adverse decision, Redford filed a personal injury lawsuit against KDOC and CCS (Defendants) in the Reno County District Court. By agreement of the parties, Redford subsequently dismissed this case without prejudice. About 5 months later, on January 5, 2010, by and through counsel, Redford refiled his petition ( Redford I ), seeking damages in excess of $75,000. Redford alleged that KDOC negligently failed to exercise “ordinary or reasonable care” to protect him from foreseeable harm, and following the stabbing, CCS rendered his medical care in “a negligent [and careless] fashion.”
In his petition, Redford asserted that he sufficiently exhausted his administrative remedies because he: (1) filed a personal injury claim under IMPP 01–118 that “went unanswered”; (2) exercised due diligence by submitting two “[g]rievance[s]” and several Form–9 inquiries “to no avail”; and (3) filed a legislative claim with the joint committee, which was denied.
On February 1, 2010, KDOC filed a motion to dismiss alleging that Redford failed to exhaust his administrative remedies and failed to adequately plead his negligence claims. The next day, CCS filed its own motion to dismiss which incorporated KDOC's arguments. Following the filing of the motions to dismiss, the parties filed several pleadings supporting their respective positions, including an amended petition and numerous memoranda. The district court held a hearing on the motions to dismiss on February 26, 2010. A transcript of this hearing, however, was not included in the record on appeal.
On October 5, 2010, Judge Timothy J. Chambers issued an order regarding the Defendants' motions to dismiss. With respect to the legal sufficiency of Redford's petition, Judge Chambers found that the petition adequately “establish[ed] a claim as to each of the Defendants.” Regarding the issue of exhaustion of administrative remedies, Judge Chambers determined that Redford was required by statute and regulations to exhaust his administrative remedies. According to Judge Chambers, however, this finding did not “end the discussion” because Redford alleged that he “attempted to use the administrative process to address his grievances, but was thwarted by the failure of [K]DOC employees to properly follow procedures, i.e. losing or not following through with his paperwork.” Accordingly, Judge Chambers issued the following order:
“A hearing will be arranged on what is commonly referred to as the prison docket. [Redford] and his counsel will be allowed to attend this hearing at the [HCF]. At the hearing, the issue will be whether [Redford] has met the requirement of exhaustion of his administrative remedies by making a good faith effort to do so and being prevented in doing so by actions of [K]DOC employees.
“If Judge McCarville finds [Redford] did not in a good faith effort attempt to exhaust his administrative remedies, the Petition will be dismissed. If Judge McCarville finds ... that he did attempt to exhaust his administrative remedies but was prevented in doing so by Defendant [K]DOC employees, [Redford] will be allowed to proceed with his administrative claims utilizing the [K]DOC administrative process. If and when such administrative proceedings are completed, the present action will be reviewed to determine the proper course of action.”
Prior to the hearing, Redford's attorney filed a petition for judicial review, “under the guidelines of K.S.A. 77–601 et seq.,” on the following limited issue: “ ‘The [KDOC] did not have jurisdiction to grant [him] an adequate remedy’ “ because KDOC lacked the authority to settle personal injury claims in excess of $500. KDOC filed a response to Redford's petition for judicial review arguing that the district court did not have jurisdiction to consider Redford's motion because he essentially sought reconsideration of the court's October 5, 2010, order. According to KDOC, it was aware of “no statute, rule, regulation or policy” that gave the district court legal authority to reconsider its prior ruling, especially since Redford waited 140 days to file his motion and failed to timely request an interlocutory appeal.
On February 24, 2011, a short time before the hearing was scheduled to begin, Stanley Juhnke, Redford's counsel, “announc[ed] that his client was experiencing chest pains.” As a result, medical personnel transferred Redford to the facility's infirmary, and the hearing was continued. Later that day, Juhnke filed a motion to withdraw as Redford's counsel, and the district court subsequently granted the motion. Thereafter, Redford appeared pro se.
On May 26, 2011, Judge McCarville conducted the evidentiary hearing. At the hearing, Wilson testified that Redford gave him an IMPP 01–118 claim form with some attached papers, but other than a property claim regarding a “wedge pillow,” Wilson was unable to recall any specific details about the claim. Wilson testified that while at HCF Redford “constantly” asked him about his claim, and according to Wilson, he always responded that “[i]t was ongoing, that no decision had been made on it because there was a lot of stuff involved in it.”
Wilson admitted, however, that at some point he lost Redford's claim because Redford was “in and out of the facility and at other facilities” and his claim was accidentally set aside and misplaced. According to Wilson, he informed Redford that he had lost his claim and asked him to resubmit it. Wilson could not recall the date he had this conversation with Redford, but he testified that it probably occurred during Redford's final stay in the east unit of HCF. Wilson explained that, as far as he knew, Redford did not resubmit his claim, and Wilson denied taking any action to prevent Redford from resubmitting the claim.
In response, Redford told Judge McCarville that he did not abandon his claim, but Juhnke had advised him to file a legislative claim because the attorney “saw no reason as to why [he] should refile another [IMPP] 0[1]–118 claim for the simple fact [that] it would be lost, too.”
On June 8, 2011, Judge McCarville issued an order finding that although Redford did submit an IMPP 01–118 claim form to Wilson, Redford was “fully aware that [his] Claim had been lost, and was fully aware that he needed to resubmit the Claim in order to proceed .” The judge also found that Redford did not resubmit his claim and there was “absolutely no evidence that any employee of the State tried to deny [Redford] the right to submit, or to resubmit the claim.”
Following Judge McCarville's order, Redford filed pleadings seeking to amend his petition for judicial review and for an order, based upon Judge McCarville's legal findings, authorizing him “to proceed with [an] administrative claim[ ] utilizing the [K]DOC administrative process” because he clearly made a “ ‘good faith’ effort” to exhaust his administrative remedies.
On June 21, 2011, Judge Chambers issued an order granting the Defendants' motions to dismiss “due to the failure of [Redford] to make a good faith effort to exhaust his administrative remedies.” Judge Chambers explained that Judge McCarville specifically found that Redford failed to make a good-faith effort to exhaust his administrative remedies and KDOC “in no way interfered with [Redford's] decision not to resubmit his claim.” Redford filed a motion for reconsideration which was denied. Subsequently, Redford filed a timely pro se notice of appeal. Redford II
On March 31, 2011, prior to the evidentiary hearing in Redford I, and shortly after the filing of his petition for judicial review, Redford filed a new case, pro se, in Reno County District Court ( Redford II ). This case was entitled “Petition for Judicial Review on Limited Issue Regarding Exhaustion of Available Administrative Remedies Requirement.” Specifically, Redford requested judicial review, “under the guidelines of K.S.A. 77–601 et seq.,” of whether KDOC lacked jurisdiction to grant an adequate remedy, “within the scope of the unique facts and circumstances” of Redford I, rendering a legally recognized exception to the exhaustion of administrative remedies requirement applicable or, in the alternative, whether his legislative claim nullified the exhaustion requirement. For the most part, the arguments Redford advanced in support of his petition were identical to those stated in his petition for judicial review in Redford I.
KDOC and CCS responded to Redford's new petition primarily contending that the district court was without jurisdiction to consider the litigation because Redford was not seeking review of an “administrative action or order,” but he was “blatantly” seeking review of the rulings of another court.
On July 6, 2011, Judge Chambers issued an order dismissing Redford's petition in Redford II because the identical issue raised by Redford was “heard and decided following an evidentiary hearing held at the [HCF]” in Redford I. Judge Chambers explained that instead of filing “a separate action in an attempt to litigate the same issue in a different proceeding,” Redford's “proper recourse [was] to appeal the Court's decision in [ Redford I ].” Redford filed a motion for reconsideration which was denied.
Redford filed a timely pro se notice of appeal. Upon his motion, Redford I and Redford II were consolidated for this appeal.
Analysis
Preliminarily, both Defendants contend this appeal should be dismissed because Redford's appellant's brief does not comply with the mandates of Supreme Court Rule 6.02 (2012 Kan. Ct. R. Annot. 38), which governs the form and content of the appellant's brief. Redford is a pro se petitioner, however, and he notes in his reply brief, typically, “ ‘[p]ro se pleadings are liberally construed The analysis depends on the facts alleged by the pro se petitioner, not the form of the pleading.’ Bloom v. Muckenthaler, 34 Kan, App.2d 603, [605,] 127 P.3d 342[,rev. denied 280 Kan. 981 (2005) ].” While Redford's brief is not perfect, we find it substantially complies with Supreme Court Rule 6.02. Accordingly, we will consider the merits of Redford's appeal.
As a second preliminary matter, on appeal our analysis is limited to Redford's personal injury claim. Redford filed a “ ‘Personal Property/Injury Claim’ “ form which alleged several property damage/loss claims in addition to his personal injury claim. The claims procedure for lost or damaged property, set forth in K.A.R. 44–16–102, requires inmates to file such claims within 15 working days of discovering the loss via the “applicable avenues of redress as established by internal management policies and procedures.” K.A.R. 44–16–102 was in effect on the date Redford apparently sustained his personal injuries and property loss. We will not consider whether Redford complied with K.A.R. 44–16–102, however, because neither party raised this property loss issue on appeal. As a general rule, issues not raised on appeal are deemed waived and abandoned. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).
Turning to the merits of the appeal, Redford contends the district court erred in dismissing his petition for failure to exhaust his administrative remedies. Specifically, Redford claims he was not required to resubmit his IMPP 01–118 claim after Wilson lost it because his legislative claim, which the joint committee denied on its merits, was sufficient, by itself, to satisfy the exhaustion requirement. Whether a party is required to or has failed to exhaust his or her administrative remedies is a question of law over which this court's review is unlimited. In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, 622–23, 24 P.3d 128 (2001).
State law requires inmates to exhaust “administrative remedies, established by rules and regulations promulgated by the secretary of corrections” prior to bringing a civil action against “the state of Kansas, any political subdivision of the state of Kansas, any public official, the secretary of corrections, the warden, the sheriff, or an employee ... while such employee is engaged in the performance of such employee's duty.” K.S.A. 75–52,138, Moreover, inmates must file proof of proper administrative exhaustion upon filing a petition in a civil action. K.S.A. 75–52,138. “The exhaustion requirement set forth in K.S.A. 75–52,138 is a mandatory, but nonjurisdictional, prerequisite to filing suit that must be strictly enforced by the court.” Chelf v. State, 46 Kan.App.2d 522, Syl. ¶ 4, 263 P.3d 852 (2011).
Of note, the administrative procedures governing inmate personal injury claims are separate and distinct from the procedure for handling grievances. K.A.R. 44–15–101a(d)(2) expressly provides: “The grievance procedure shall not be used in any way as a substitute for, or as part of, the ... property loss or personal injury claims procedure.”
Currently, the procedure for personal injury claims, governed by K.A.R. 44–16–104a, necessitates the filing of a claim with the prison “in accord with the department of corrections' internal management policies and procedures” within 10 days of sustaining the injury. This procedure articulated in K.A.R. 44–16–104a is “more rigorous and demanding” than the requirements set forth in its regulatory predecessor, K.A.R. 44–16–104. Chelf, 46 Kan.App.2d at 528. That earlier procedure did not contain a filing deadline and permitted inmates with a personal injury claim greater than $500 to file the claim with either the prison or the joint committee. See Bates v. Kansas Dept. of Corrections, 31 Kan.App.2d 513, 514–17, 67 P.3d 168 (2003).
The doctrine of exhaustion of administrative remedies dictates that an administrative remedy, provided by law, “ ‘must be sought and completed before courts will act.’ [Citation omitted.]” Sandlin v. Roche Laboratories, Inc., 268 Kan. 79, 86, 991 P.2d 883 (1999). In this case, neither party disputes that Redford filed his lawsuit after he properly exhausted the legislative claims procedure but before the KDOC's investigation of his personal injury claim had run its full course.
While this factual situation presents a clear failure to exhaust under K.A.R. 44–16–104a, as Redford points out, the Secretary promulgated K.A.R. 44–16–104a on June 1, 2007—almost 4 months after Redford sustained his injuries. See K.A.R. 44–16–104a. “[G]enerally[,] administrative regulations operate prospectively unless a contrary intent is clearly indicated. [Citation omitted.]” State v. Ernesti, 291 Kan. 54, 70, 239 P.3d 40 (2010). In this regard, the provisions of K.A.R. 44–16–104a do not express a clear intent for retroactive application. In fact, the addition of the 10–day filing deadline suggests a contrary intention because any other interpretation would lead to an irrational result, i.e., Redford's claim would be void for failure to comply with a 10–day requirement which was not in effect until 4 months after he sustained his personal injuries. See Ernesti, 291 Kan. at 70–71 (discussing retroactive application of administrative regulations). We conclude that K.A.R. 44–16–104a operates prospectively and, as a result, Redford was not obligated to follow the filing procedures established by that regulation after his injuries were sustained.
Although Redford was not required to comply with K.A.R. 44–16–104a, he was still required under K.S.A. 75–52,138 to exhaust his administrative remedies, as “established by rules and regulations promulgated by the secretary of corrections” prior to bringing a civil action against KDOC and CCS. Yet, for over 5 years preceding the promulgation of K.A.R. 44–16–104a, there were no administrative regulations governing inmate personal injury claims. See Chelf 46 Kan.App.2d at 527. The prior regulation, K.A.R. 44–16–104, became effective on May 1, 1980, and the Secretary revoked K.A.R. 44–16–104 in its entirety on February 15, 2002. See Chelf, 46 Kan.App.2d at 526. Consequently, the dispositive issue in this case is whether any “rules and regulations” existed on the date Redford sustained his personal injuries that obligated him to complete the administrative and legislative claims processes or whether the filing of a legislative claim was sufficient to satisfy the exhaustion requirement. The Defendants contend that during the 5–year regulation hiatus, IMPP 01–118 governed the procedure for personal injury claims.
As explained above, K.S.A. 75–52,138 requires inmates to exhaust all administrative remedies, as “established by rules and regulations promulgated by the secretary of corrections.” (Emphasis added.) Although the phrase “rules and regulations,” as used in K.S.A. 75–52,138, has not been explicitly defined, Kansas appellate courts have interpreted this phrase in other statutes governing KDOC to include the IMPP. See e.g., Litzinger v. Bruce, 41 Kan.App.2d 9, 11, 201 P.3d 707 (2008) (“K.S.A.75–5210(f) and K.S.A. 75–5251 authorize the Secretary of KDOC to develop rules and regulations for its correctional institutions, including the Internal Management Policies and Procedures [IMPP]. [Citation omitted.]”). Thus, although no regulations were in effect at the time Redford sustained his personal injuries, a rule, IMPP 01–118, was in effect which Redford needed to comply with in order to properly exhaust his administrative remedies under K.S.A. 75–52,138.
IMPP 01–118 outlines the inmate claims procedure for property damage/loss and personal injury. As Redford asserts, however, the procedure described in IMPP 01–118 does not appear to be mandatory, and it does not appear to apply to claims exceeding $500. In fact, although the Secretary may attempt to resolve claims in excess of $500 “by offering payment at an amount equal to or less than this maximum amount,” IMPP 01–118(II)(B) describes a permissive claims procedure: “Claims for property loss or damage or personal injury totaling $500.00 or less may be submitted to the facility and secretary of corrections.” (Emphasis added.) Of course, Redford's claim for damages was in excess of$75,000.
We interpret the language of IMPP 01–118(II)(B) as permissive in nature. Had KDOC wished to invoke a mandatory procedure, it easily could have done so by simply changing the word “may” to “shall.” Furthermore, this language clearly restricts use of the claims procedure to claims “totaling $500.00 or less.” IMPP 01–118(II)(B). The fact that IMPP 01–118 limits the claims procedure to claims of $500 or less is understandable given the fact that K.S.A.2012 Supp. 46–920(a) expressly prohibits the KDOC from dispersing “more than $500” to settle a personal injury or property damage claim.
Although the claims procedure set forth in IMPP 01–118 is not mandatory, it does require inmates to notify the penal institution of any personal injury or medical problem. IMPP 01–118. This obligation does not appear, however, to require anything more than notification. According to the IMPP, inmates “shall report any personal injury or medical problem immediately, according to procedures established by written order of the warden[,] ... [and][t]he warden or designee shall conduct an investigation as soon as possible whenever loss or damage appears likely as a result of an injury or medical problem.” IMPP 01–118. Redford clearly notified prison authorities of his serious personal injuries by submission of his claim form which was subsequently lost by those authorities.
In conclusion, under K.S.A. 75–52,138, Redford was required to exhaust his administrative remedies as set forth in IMPP 01–118. This rule only obligated Redford to notify prison officials of his personal injuries. Redford exhausted his administrative remedies by filing his IMPP 01–118 claim. Redford's failure to resubmit his claim form after Wilson lost it is irrelevant because his initial submission of the form satisfied the notification requirement. Accordingly, we reverse the district court's dismissal of Redford I and remand for further proceedings.
Redford raises alternative arguments regarding the Prison Litigation Reform Act, 42 U.S.C.1997e (2006), and the equitable defenses of waiver, futility, or estoppel. However, given our earlier ruling, these arguments are moot. See State v. Torres, 293 Kan. 790, 792, 268 P.3d 1197 (2012) (As a general rule an appellate court does not decide moot questions).
Redford also contends the district court committed reversible error when it dismissed Redford II because he had an absolute right to petition the district court for judicial review, as the district court never ruled on the issues he raised. Our reading of the district court's decision persuades us that it was premised upon the doctrine of issue preclusion. Issue preclusion, or collateral estoppel, “prevents a second litigation of the same issue between the same parties, even when raised in a different claim or cause of action.” In re Tax Appeal of Fleet, 293 Kan. 768, 778, 272 P.3d 583 (2012). In order for issue preclusion to apply, three elements are required:
“(1) a prior judgment on the merits that determined the parties' rights and liabilities on the issue based upon ultimate facts as disclosed by the pleadings and judgment; (2) the same parties or parties in privity; and (3) the issue litigated must have been determined and necessary to support the judgment. [Citation omitted.]” 293 Kan. at 778.
We are persuaded that the doctrine of issue preclusion applies with regard to Redford II because, with reference to both Redford I and Redford II, all three of the issue preclusion elements are satisfied—the same parties are involved, there was a prior judgment on the merits, and a determination of the issues was necessary to support the judgment. Thus, the district court did not err in dismissing Redford II.
Affirmed in part, reversed in part, and remanded.