Opinion
112,489.
03-20-2015
Charles F. SMELTZER, Appellant, v. Shawn SULLIVAN, Secretary of the Kansas Department for Aging and Disabilities, Appellee.
Charles F. Smeltzer, pro se appellant. Christopher M. Napolitano, of Kansas Department for Aging and Disability Services, for appellee.
Charles F. Smeltzer, pro se appellant.
Christopher M. Napolitano, of Kansas Department for Aging and Disability Services, for appellee.
Before PIERRON, P.J., GREEN, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Charles F. Smeltzer appeals the district court's decisions to dismiss his petition for a writ of habeas corpus. The court held Smeltzer had failed to exhaust and also timely exhaust his administrative remedies.
Smeltzer is a sexually violent predator housed at the Larned State Hospital (Larned) in the sexual predator treatment program (SPTP). Smeltzer alleged that on December 11, 12, and 13, 2012, security officers improperly confiscated his property during a transition to a different room at the hospital. It was not until approximately 7 months later on July 16, 2013, that Smeltzer filed a grievance alleging harassment, sexual discrimination, and targeting/profiling concerning the confiscation. Although quite untimely, the staff at Larned addressed Smelter's grievance anyway.
On July 17, 2013, the Larned treatment team denied Smelter's grievance stating: “The handbook does not allow for residents to trade items on unit without an approval request from treatment team. That will not be supported. No member of E2 staff was told to monitor you any more so than other residents.” Smeltzer appealed. On July 29, 2013, Larned's grievance officer denied Smeltzer's grievance stating, “The unit leader of E2 has made it clear and the handbook does state no borrowing lending trading without approval. The staff have also been advised and should not be allowing as well. Any property not handled according to policy is contraband.”
Smeltzer appealed. On September 3, 2013, Larned's program director denied Smeltzer's grievance stating: “I've advised the unit leader (Linda Kidd) to ensure you have all property in your possession as allowed by policy and procedure, as well as, per treatment team. In order to trade items, you must have treatment team approval and documentation to support (e.g. request form).”
On October 1, 2013, Smeltzer filed a petition for writ of habeas corpus based on the deprivation of property occurring in December 2012. Smeltzer requested a return of his property and a demand that Larned staff follow proper procedures. In his petition, Smeltzer also set forth another grievance:
“On September 19, 2013, Property Officer Kevin Brabb and David Stude approached the Petitioner and handed him a form to sign that stated he would send the property out or it would be destroyed within forty-five (45) days. The Petitioner argued this was a further violation of his rights as he was seeking a legal remedy concerning the property in question.”
The district court summarily dismissed Smeltzer's petition finding it lacked jurisdiction. First, the court found Smeltzer's claim about the September 19, 2013, notice concerning his property was improperly before the court because Smeltzer had failed to exhaust his administrative remedies pursuant to Stanley v. Sullivan, 49 Kan.App.2d 732, 314 P.3d 883 (2013). Second, the court found Smeltzer had failed to make timely efforts to pursue administrative remedies in the December 2012 removal of his property because he had not filed a grievance until July 2013, which was 7 months after the deprivation, instead of the 15–day requirement under the grievance procedures. The court found there was no tolling of the grievance time period based on Smeltzer's alleged informal attempts to resolve the situation with staff. The court also rejected Smeltzer's argument that since the grievance staff had in fact addressed and denied the untimely grievance concerning the December 2012 property, then the administrative remedies were not final until he received the program director's review on September 3, 2013.
The district court's refusal to consider the September 3, 2013, notification that Smeltzer's property would be sent out or destroyed was in error. The Kansas Supreme Court has since reversed the Court of Appeals decision in Sullivan, the authority relied upon by the district court. On October 31, 2014, the Kansas Supreme Court in Stanley v. Sullivan, 300 Kan. 1015. Syl. ¶ 4, 336 P.3d 870 (2014), ruled that SPTP residents do not have to exhaust their administrative remedies before filing a K.S.A. 60–1501 petition: “By enacting K.S.A.2013 Supp. 59–29a24, the legislature did away with any requirement that patients in the custody of the Secretary of the Kansas Department for Aging and Disability Services must exhaust administrative remedies before filing for habeas corpus relief.” Consequently, the district court's summary dismissal is reversed and the issue concerning the September 3, 2013, grievance is remanded for further consideration on the merits.
We do not reach the same result concerning Smeltzer's complaint about the confiscation of his property in December 2012. Smeltzer does not allege his grievance complied with the 15–day filing requirement under the resident grievance process. Rather, Smeltzer's main argument is that since the Larned staff heard and ruled upon the merits of his grievance, they waived any argument the grievance was untimely filed. We find no merit in this wavier of jurisdiction argument.
K.S.A.2014 Supp. 60–1501(c) specifically addresses appeals for persons such as Smeltzer in sexual predator custody:
“Except as provided in K.S.A. 60–1507, and amendments thereto, a patient in the custody of the secretary for aging and disability services pursuant to K.S.A. 59–29a01 et seq., and amendments thereto, shall file a petition for writ pursuant to subsection (a) within 30 days from the date the action was final, but such time is extended during the pendency of the patient's timely attempts to exhaust such patient's administrative remedies.”
Smeltzer is unable to meet either of the filing deadlines outlined in K.S.A.2014 Supp. 60–1501(c).
Smeltzer did not file his habeas corpus petition “within 30 days from the date the action was final.” The events giving rise to Smeltzer's complaint occurred on December 11, 12, and 13, 2012, when the Larned staff confiscated property during Smeltzer's transfer to a different unit. Yet, Smelter did not file his petition until October 1, 2013—10 months later. Smeltzer's habeas corpus petition was clearly untimely under the 30–day provision of K.S.A.2013 Supp. 60–1501(c).
Smeltzer also failed to file his habeas corpus petition after “timely attempts” to exhaust his administrative remedies. The language of K.S.A.2014 Supp. 60–1501(c) is clear and unambiguous. In order to extend the 30–day filing requirement, an SPTP inmate must make a timely attempt to exhaust administrative remedies, namely through the resident grievance process. The Kansas Department for Aging and Disability Services, Sexual Predator Treatment Program, Policy No. 7.1 of the Policy and Procedure Manual provides:
“Grievances shall be submitted within fifteen (15) days from the date of the discovery of the event giving rise to the grievance, excluding weekends and holidays. No grievance, regardless of time of discovery, shall be submitted later than one year after the event. Any grievance submitted later than these deadlines may be returned to the resident without investigation. Returned grievances shall note the name of the individual returning the grievance, the date of the return, and the reasons for the return. A resident may move to the next stage of the grievance process if a timely response is not received at any step in the grievance process, unless an extension of time for the response is agreed to in writing by both the resident and staff person answering the grievance.”
Smeltzer contends he was informally attempting to address the situation as suggested by SPTP policies and he should not be penalized for doing so. Policy No. 7.1 expressly states: “Prior to utilizing the outlined grievance procedure, residents are encouraged to attempt to reach an informal resolution of the matter with the personnel who work with the resident on a direct or daily basis (i .e., MHDD, CTS, RN, Primary Therapist, and/or Unit Leader).” However, pursuant to the time limitations set forth in Policy No. 7 .1, Smeltzer had 15 days from December 13, 2012, to complete the grievance form and submit it to his treatment team. Smeltzer did not submit the grievance form until July 16, 2013—7 months later. Policy No. 7.1 does not provide any tolling of the grievance time constraints or an extension of the time period to file a grievance while attempts at informal resolution are occurring. Smeltzer's failure to file his grievance within 15 days of December 13, 2012, made his attempt to use administrative remedies untimely.
The larger question is whether Smeltzer's untimely grievance was cured by the courtesy of the Lamed staff in addressing his concern. We do not find the Lamed staffs courtesy overrides our ultimate jurisdictional conclusion. Smeltzer argues the Larned staff's decision to address the merits of his grievance waived any jurisdictional time irregularities in his petition filed pursuant to K.S.A. 60–1501. Smeltzer relies on the unpublished federal case of Smalls v. Stermer, No. 10–3025–JTM 2011 WL 1234781, (D. Kansas 2011) (unpublished opinion), for authority that if a facility hears and rules upon a grievance then the facility waives any arguments of timeliness later in district court. Smalls involved the exhaustion requirements necessary for filing a federal § 1983 lawsuit by an inmate pursuant to the Prison Litigation Reform Act (PLRA). The conclusion in Smalls did not actually involve a waiver by the facility in addressing the merits of Smalls' grievance. Although Smalls' initial grievance was untimely and accepted by the prison, he was also untimely in the next step in the appeal. The Smalls court found Smalls had failed to properly exhaust his administrative remedies because he was untimely in the next step in the appeal process and the prison never responded to his untimely appeal. 2011 WL 1234781, at *11–12.
However, the Smalls court cited Ross v. County of Bernalillo, 365 F.3d 1181, 1186 (10th Cir.2004), where the court addressed an untimely grievance concerning the inmate's fall in a slippery shower and the prison's addressing of the complaint: “If a prison accepts a belated filing, and considers it on the merits, that step makes the filing proper for purposes of state law and avoids exhaustion, default, and timeliness hurdles in federal court.” The Ross court held Ross had sufficiently exhausted administrative remedies concerning his complaint for the slippery shower, but not for damages for lack of medical care. 365 F.3d at 1187–88 ; but see Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (Ross abrogated as far as total exhaustion rule and exhaustion of some, but not all, claims does not warrant dismissal of entire action.).
This case is ultimately controlled by the jurisdictional mandates of K.S.A.2014 Supp. 60–1501(c). Parties cannot confer subject matter jurisdiction by consent, waiver, or estoppel. A failure to object to the court's jurisdiction does not invest the court with the requisite subject matter jurisdiction. See State v. Hoffman, 45 Kan.App.2d 272, 275, 246 P.3d 992 (2011). The Larned staff's decision to address Smeltzer's untimely grievance was discretionary and extension of this courtesy did not extend the time limitations under K.S.A.2012 Supp. 60–1501. Consequently, based on a lack of jurisdiction for an untimely attempt at exhausting administrative remedies, we agree with the district court and the denial of Smeltzer's habeas claim concerning the 2012 deprivation of property.
Affirmed in part, reversed in part, and remanded.