Opinion
112,455.
06-05-2015
Jeffrey SPERRY, Appellant, v. David McKUNE (Warden) et al., (Raymond Roberts, Kansas Department of Corrections ), Appellees.
Jeffrey J. Sperry, appellant pro se. Fred W. Phelps, Jr., legal counsel, Kansas Department of Corrections, for appellees.
Jeffrey J. Sperry, appellant pro se.
Fred W. Phelps, Jr., legal counsel, Kansas Department of Corrections, for appellees.
Before GREEN, P.J., ARNOLD–BURGER, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Jeffrey Sperry, an inmate at Lansing Correctional Facility, sued David McKune, the warden at Lansing Correctional Facility, and Raymond Roberts, the Secretary of Corrections, alleging various state tort claims and a 42 U.S.C. § 1983 claim for cruel and unusual punishment. Sperry alleged that he had been exposed to asbestos and lead-based paint since he arrived at Lansing Correctional Facility in 1997. The Leavenworth County District Court dismissed Sperry's complaint for failure to exhaust administrative remedies. Of these two issues, we find only Sperry's 42 U.S.C. § 1983 claim should be allowed to proceed. As a result, we affirm in part, reverse in part, and remand for further proceedings concerning the 42 U.S.C. § 1983 claim.
Sperry is an inmate incarcerated at Lansing Correctional Facility. He has been housed at the facility since approximately October 1997 and for most of that time, he worked and resided in the maximum security facility. Sperry alleges that in January 2010 it was brought to his attention he was being exposed to friable asbestos and lead-based paint in the maximum security facility. On September 7, 2011, he filed a complaint in the District Court of Leavenworth County naming David R. McKune, warden of Lansing Correctional Facility, Raymond Roberts, the Secretary of Corrections, and the Kansas Department of Corrections as defendants. Sperry sued McKune and Roberts in both their individual and official capacities. Amongst the cause of actions was a claim for violation of his Eighth Amendment right under the United States Constitution to be free of cruel and unusual punishment, as well as claims of negligence, battery, breach of fiduciary relationship, and the tort of outrageous conduct. Sperry brought the action under state tort law and as a civil rights case under 42 U.S.C. § 1983 (2012). He sought a declaratory judgment against the defendants stating they knowingly and recklessly caused him to be exposed to friable asbestos and lead paint, injunctive relief ordering defendants to treat all of his medical needs, injunctive relief ordering defendants to remove all dangerous environmental contaminants from the Lansing Correctional Facility, and compensatory damages totaling $250,000.
Before filing his complaint, Sperry pursued various administrative remedies through the prison system. In his complaint, he alleges he “filed his first grievance regarding the environmental hazards in March 2010. The facility refused to process the grievance.” He also alleged in his complaint that he filed a complaint with the Joint Committee on Special Claims Against the State regarding the hazards, which was denied on August 30, 2010. He contends that he filed a second grievance in October 2010—which was lost—and a replacement grievance in November 2010, which was denied by the Secretary of Corrections on December 17, 2010. He included documentation of this administrative action attached to his complaint.
Sperry's complaint was dismissed for failure to exhaust administrative remedies. Thus, it is important to understand the details surrounding his exhaustion of administrative remedies attempts. Sperry alleges that he filed his first grievance immediately after learning about the asbestos and lead-based paint exposure. He asserts that he was taken to segregation on a disciplinary violation a day after he learned of the asbestos exposure and, while in segregation, he asked a guard to provide him the proper form so he could file his grievance. Sperry accuses the guard of supplying him with the wrong form. Sperry filled out the form and filed it on March 1, 2010, within the required deadline; however, he alleges that because the grievance was completed on the wrong form, it was denied and returned to him after the filing deadline had passed. He contends that he appealed the denial directly to the warden. He provided a document from the warden dated March, 26, 2010—16 days after he allegedly first filed his grievance—which stated: “your grievance was received and an investigation into your allegations was completed.” The warden told Sperry that “all KDOC facilities had all asbestos and lead paint removed in the late 80's or early 90's” and that no action could be taken through the grievance process. Sperry filed a second grievance regarding the asbestos and lead paint exposure 7 months later. The warden also denied this grievance and noted: “[I]t has been determined that this issue had been addressed in a previous grievance” and the general grievance procedure was not a substitute for the personal injury claims procedure. Sperry appealed to the Secretary of Corrections and noted the personal injury claim process only covered claims up to $500 and, therefore, did not cover his request for $250,000. The Secretary of Corrections denied Sperry's appeal. Sperry then filed his complaint in the District Court of Leavenworth County.
The procedural history surrounding Sperry's complaint is long and complex. Immediately after Sperry filed his initial complaint, counsel for Lansing Correctional Facility moved to dismiss, asserting that the KDOC lacked the capacity to be sued and that defendants McKune and Roberts had immunity under the Eleventh Amendment to the United States Constitution from the damage claims against them in their official capacity. The motion also alleged that Sperry had failed to state a claim against McKune and Roberts in their individual capacities and that even if he did state a claim, they were entitled to qualified immunity. Defendants filed a supplemental motion to dismiss after the trial court held an initial hearing on the matter. In the supplemental motion, defendants argued that Sperry's complaint should be dismissed because he did not properly exhaust his administrative remedies because Sperry had not provided proof he submitted a personal injury claim in compliance with K.A.R. 44–16–104a. Sperry responded to this motion asserting that the Internal Management Policy and Procedures of the Kansas Department of Corrections limited the use of the personal injury claim procedure to claims of less than $500 and his claim was for $250,000. He also asserted that the KDOC waived the right to assert the exhaustion of administrative remedies defense because they did not supply him with the correct form and that the 10–day limitation period for filing personal injury claim forms under K.A.R. 44–16–104a was unconstitutional.
The trial court partially granted the defendants' motion to dismiss. The court dismissed all claims against the KDOC and the 42 U.S.C. § 1983 claim for money damages against McKune and Roberts in their official capacities. The court also addressed the exhaustion of administrative remedies issue. The court determined that Sperry had admitted that he did not file the personal injury claim form within the required 10–day period. The court further determined that his argument that he had been given the wrong form by prison officials failed because he had admitted that he did not file the correct form because his claim was for more than $500. The court therefore dismissed the personal injury claims and request for damages against McKune and Roberts in their official capacities. The court denied the motion to dismiss for the remaining claims against McKune and Roberts in their individual capacities, finding “those matters may be more appropriately subject to a summary judgment motion or other proceedings.” The claims that remained after the court's order were all tort claims against McKune and Roberts in their individual capacities as well as the 42 U.S.C. § 1983 claim for injunctive relief against McKune and Roberts in both their official and individual capacities.
After the court's order, defendants moved for a more definite statement, requesting the court to direct Sperry to file a more definite statement regarding his remaining claims against the defendants. Sperry responded by filing an amended complaint, which contained much of the same information as the initial complaint. In response, defendants filed another motion to dismiss for failure to state a claim and asserted qualified immunity and Eleventh Amendment immunity defenses. Various pleadings were submitted back and forth on the issue of qualified immunity. After the trial court took the qualified immunity issue under advisement, defendants filed another motion to dismiss based on Sperry's failure to exhaust administrative remedies. Defendants alleged that it was clear from the face of the amended complaint that Sperry had failed to exhaust his administrative remedies because he did not provide any proof that he had filed a claim for personal injury as required by K.A.R. 44–16–104a.
On May 30, 2014, the trial court issued an order of dismissal on all of Sperry's remaining claims against McKune and Roberts. The court determined that for Sperry to properly pursue a claim against McKune and Roberts in their individual capacities, Sperry would have had to file a personal injury claim form under K.A.R. 44–16–104a because he was seeking money damages for a personal injury. The court further determined that Sperry's claim for injunctive relief should be dismissed because he never requested injunctive relief in any of the grievances he did file. Sperry appealed the court's order dismissing his complaint.
Did the Trial Court Err in Dismissing Plaintiff's Claim for Failing to Exhaust Administrative Remedies?
Sperry alleges five different reasons why the trial court erred in dismissing his petition for failure to exhaust administrative remedies. First, Sperry asserts that he completed all of the necessary requirements to exhaust his administrative remedies. Second, he argues that the 10–day limitation period under K.A.R. 44–16–104a is an unconstitutional violation of his due process. Third, Sperry asserts that his exposure to asbestos occurred before K.A.R. 44–16–104a went into effect, and therefore it is not applicable. Fourth, Sperry argues that although the plain language of K.A.R. 44–16–104a requires an inmate to file a personal injury form within 10 days, the regulation does not say that a claim is barred for noncompliance. Finally, Sperry contends that his first grievance in March 2010 was futile because McKune responded by notifying him the asbestos had been removed “in the late 80's or early 90's.” Sperry alleges that an investigator from the Environmental Protection Agency visited the facility in May 2010 and confirmed the presence of asbestos. Sperry argues that he could not have complied with the regulation because his last exposure to the asbestos was in February 2010 and the confirmation from the EPA did not occur until May 2010.
Defendants reject each of Sperry's arguments and rely solely on the fact he did not follow the proper personal injury claim procedure. Sperry, however, preserved each of these issues, so each must be addressed individually.
An appellate court reviews a trial court's decision to grant a motion to dismiss under a de novo standard of review. Wachter Management Co. v. Dexter & Chaney, Inc., 282 Kan. 365, 368, 144 P.3d 747 (2006).
Did Sperry Properly Exhaust His Remedies?
The primary issue in this case concerns compliance with KDOC administrative exhaustion of administrative remedies procedures. Sperry raises both state and federal claims, so the issues must be analyzed under both areas of law.
Both Kansas and federal law require exhaustion of administrative remedies before prisoners can file suit in trial court. The Prison Litigation Reform Act of 1995 (PLRA) requires a prisoner to exhaust any available administrative remedies before challenging prison conditions under 42 U.S.C. § 1983. See 42 U.S.C. § 1979e(a) (2012). Administrative exhaustion is also a prerequisite for prisoner suits under K.S.A. 75–52,138. It states as follows:
“Any inmate in the custody of the secretary of corrections ... prior to filing any civil action naming 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 of the department of corrections or the county, while such employee is engaged in the performance of such employee's duty ... shall have exhausted such inmate's administrative remedies, established by rules and regulations promulgated by the secretary of corrections or by county resolutions, concerning such civil action. Upon filing a petition in a civil action, such inmate shall file with such petition proof that the administrative remedies have been exhausted.”
State exhaustion of administrative remedies requirements do not apply to 42 U.S.C. § 1983 actions. Bloom v. Muckenthaler, 34 Kan.App.2d 603, 607, 127 P.3d 342, rev. denied 280 Kan. 981 (2005) (citing Prager v. Kansas Dept. of Revenue, 271 Kan. 1, 16, 20 P.3d 39 [2001] ). This is of relevance because K.S.A. 75–52,138 requires each inmate to file proof of exhaustion of administrative remedies with his or her petition. See also Laubach v. Roberts, 32 Kan.App.2d 863, 869, 90 P.3d 961 (2004) (finding that while the petitioner had attached some grievance forms to his petition, none of the forms demonstrated that he had completed the required appeal to the Secretary of Corrections and therefore petition had not strictly complied with the statutory requirements for filing a lawsuit). The same is not true for exhaustion of administrative remedies for federal causes of action. The United States Supreme Court held under the PLRA, inmates are not required to specially plead or demonstrate exhaustion of administrative remedies in their complaint. See Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d. 798 (2007). Although claims brought under Kansas law, require inmates to file proof of exhaustion of administrative remedies with their petition, the same exhaustion requirement is not necessary under PLRA.
The United States Supreme Court has also held that exhaustion of administrative remedies under the PLRA must be proper—meaning it must be in compliance with “an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90–91, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). The Court also interpreted the PLRA to require exhaustion of administrative remedies “even where the relief sought—monetary damages—cannot be granted by the administrative process.” 548 U.S. at 85.
Because both federal and Kansas law require compliance with agency procedures to successfully exhaust all administrative remedies, it is necessary to understand what exhaustion of administrative remedies requirements are at issue in the present case. Defendants assert that Sperry failed to comply with K.A.R. 44–16–104a which governs inmate claims for personal injury. K.A.R. 44–16–104a provides:
“(a) Each inmate claim for personal injury shall be submitted to the facility and secretary of corrections within 10 calendar days of the claimed personal injury.
“(b)Each claim described in subsection (a) shall be submitted and processed in accord with the department of corrections' internal management policies and procedures.
“(c) The requirement that the inmate submit the claim as described in subsection (a) shall apply whether or not the inmate pursues a grievance pursuant to article 15 and whether or not the inmate files a claim with the legislative joint committee on special claims against the state.”
This court has previously discussed the legislative history of this regulation, pointing out the original version of the regulation was revoked in 2002 and replaced in 2007 with “more rigorous and demanding” requirements. See Chelf v. State, 46 Kan.App.2d 522, 528, 263 P.3d 852 (2011). This court further noted before 2007 an inmate could present a personal injury claim to the prison or to the joint committee for purposes of exhausting administrative remedies, but now an inmate must present the claim to prison officials within 10 days of sustaining injury to properly exhaust administrative remedies. 46 Kan.App.2d at 528. The plaintiff in Chelf argued filing a personal injury claim under K.A.R. 44–16–104a would have been futile because the KDOC is only authorized to reimburse inmates up to $500 for personal injury loss under K.S.A. 46–920. 46 Kan.App.2d at 537. This court rejected that argument, finding K.A.R. 44–16–104a provides that “any claim for personal injury, regardless of whether the request for relief is more or less than $500, must be submitted by the inmate to the facility within 10 calendar days of the claimed personal injury.” 46 Kan.App.2d at 537.
The other grievance procedure utilized by KDOC falls under K.A.R. 44–15–101 et seq. Grievances addressed under Article 15 of the KDOC administrative regulations include: (A) Complaints by inmates regarding policies and conditions within the jurisdiction of the facility or the department of corrections; and (B) actions by employees and inmates and incidents occurring within the facility. K.A.R. 44–15–101a.
K.A.R. 44–15–101 a(d)(2) also specifically states “[t]he grievance procedure shall not be used in any way as a substitute for, or as part of, the inmate disciplinary procedure, the classification decision-making process, the property loss or personal injury claims procedure, or the procedure for censorship of publications specified in the secretary's internal management policy and procedure.” (Emphasis added.)
In the present case, defendants argue that Sperry needed to comply with K.A.R. 44–16–104a because he alleged in his petition that he had suffered a personal injury. Defendants assert that it is undisputed that Sperry did not comply with this regulation. The trial court also determined that compliance with K.A.R. 44–16–104a was required before Sperry could pursue a lawsuit against McKune and Roberts in their personal capacities. In response, Sperry cites Bock and asserts that the United States Supreme Court held that compliance with the prison grievance procedure is all that is required to exhaust a claim for purposes of a civil rights complaint under 42 U.S.C. § 1983. He maintains that he did file some semblance of a grievance on March 1, 2010, while he was in segregation for a disciplinary violation, but it was denied and returned to him because he did not fill out the proper form. The warden did reply to his defective grievance, however, and stated no action could be taken because asbestos and lead paint had been removed from the facility.
Sperry did attach various documents to his complaint, presumably to demonstrate exhaustion of administrative remedies. Those documents include the claim he made to the Joint Committee on Special Claims Against the State and the second grievance he filed with the prison in November 2010. The warden responded to the second grievance stating that he had already addressed the issue in his previous grievance and because his complaint dealt with personal injury, it was necessary for him to pursue his case using the personal injury claims procedure. The personal injury claims procedure under K.A.R. 44–16–104a requires an inmate to file a personal injury claim within 10 days of the claimed injury. It is uncontested that Sperry did not comply with this procedure. Although he alleges he filed a grievance on March 1, 2010 (which can be corroborated by the warden's response on March 26, 2010), he did not attach any documentation of that initial grievance to his complaint, nor did he attach the warden's response to that initial grievance to his complaint. The documentation requirement in K.S.A. 75–52,138 requires proof at all stages of the grievance process. See Laubach, 32 Kan.App.2d at 869. Sperry failed to comply with K.S.A. 75–52,138 by not filing proof that administrative remedies had been exhausted with his complaint. Sperry both failed to follow the correct grievance process and he did not comply with K .S.A. 75–52,138. As a result, the trial court correctly dismissed his complaint involving the state claims for failure to exhaust administrative remedies.
In the alternative, Sperry argues that he essentially put the prison on notice of his complaint even though he filed the wrong form. An argument could be made that Sperry did properly exhaust his administrative remedies by filing a grievance under K.A.R. 44–15–101a which covers “[c]omplaints by inmates regarding policies and conditions within the jurisdiction of the facility or the department of corrections.” [Emphasis added.] Sperry's action involved his exposure to asbestos and lead paint, which is arguably a condition within the facility. This argument fails, however, because Sperry still did not attach the proper proof of exhaustion of administrative remedies to his complaint. K.A.R. 44–15–101b requires an inmate to file a grievance within 15 days from the date of the discovery of the event giving rise to the grievance. Even if we assume he could have properly filed his claim using the general grievance procedure rather than the personal injury claim procedure, he still failed to exhaust administrative remedies because he did not attach documentation of his initial grievance. Because the trial court properly dismissed Sperry's state claims for failure to comply with K.S.A. 75–52,138, Sperry's alternative argument also fails.
Our analysis, however, does not end here. Although Sperry's state claims were properly dismissed for failure to exhaust administrative remedies, he still has a live 42 U.S.C. § 1983 claim. As stated earlier, the PLRA does not require an inmate to attach proof of exhaustion of administrative remedies to the complaint. Sperry pled in his complaint that he fully exhausted his administrative remedies and therefore it was up to the defendants to assert failure to exhaust administrative remedies as an affirmative defense. See Bock, 549 U.S. at 216. Defendants did assert failure to exhaust administrative remedies as an affirmative defense. Moreover, the trial court ruled that Sperry had failed to exhaust his administrative remedies because he did not comply with the proper procedures. For example, Sperry failed to fill out the required personal injury claim form. The trial court agreed with defendants that the crux of Sperry's complaint involved personal injury because he had requested money damages for a personal injury. Therefore, compliance with the K.A.R. 44–16–104a personal injury claims process was necessary for proper exhaustion of administrative remedies. The trial court determined that it was uncontested that Sperry had not complied with K.A.R. 44–16–104a because he did not fill out the proper form within the 10–day deadline and therefore he did not properly exhaust his administrative remedies.
The trial court was correct that Sperry's grievance primarily involved personal injury. Although we do not know the content of his initial grievance, the grievance he filed in November 2010 stated:
“I am grieving the fact that I have been constantly exposed to asbestos, lead paint, and other environmental contaminants for over 13 years. The entire L.C.F. facility is full of these contaminants and I have never receive[d] compensation or treatment for my exposure. I request compensation of $250,000 and treatment for all current and future ailments by medical professionals of my choosing at the state's expense.”
This statement is evidence that Sperry was grieving a personal injury and not the general conditions of the prison. The trial court correctly pointed out that Sperry never requested anything in his grievance that would indicate he was complaining about the general conditions of the prison. He never asked for the contaminants to be removed, or for prison officials to relocate him so he would not be exposed. The trial court was correct to conclude that Sperry's grievance involved a personal injury. As a result, Sperry should have followed the proper personal injury claim process.
Sperry, however, argues further that KDOC waived the exhaustion of administrative remedies rule by failing to supply him with the proper grievance forms. Sperry admits that he did not fill out the proper form but contends that the prison officials violated their own internal procedure. He maintains that the internal procedure requires the following: that “[s]taff assistance and all necessary forms shall be provided to inmates interested in filing a claim against the state for damaged/lost property or personal injury resulting from the negligence of employees.” Sperry asserts that after he had filed his initial grievance, a prison official responded by notifying him he could not file a grievance on the issue he submitted, but the official “never bothered to supply plaintiff with the proper forms or advise him on how to process them .” Sperry argues that KDOC's violation of its own rules constitutes waiver of the exhaustion administrative remedies requirement. Defendants do not address this argument on appeal.
Unlike claims under K.S.A. 60–1501, the exhaustion administrative remedies requirements in both K.S.A. 75–52,138 and the PLRA are mandatory, but not jurisdictional. Chelf, 46 Kan.App.2d at 532–33. Failure to exhaust administrative remedies therefore may be subject to certain equitable defenses such as wavier. 46 Kan.App.2d at 533. This court has defined waiver as “the voluntary and intentional relinquishment of a known right and the expression of an intention not to insist upon what the law affords.” Chelf, 46 Kan.App.2d at 533 (citing Prather v. Colorado Oil & Gas Corp., 218 Kan. 111, 117, 542 P.2d 297 [1975] ; Jones v. Jones, 215 Kan. 102, 116, 523 P.2d 743, cert. denied 419 U.S. 1032 [1974] ). Waiver is manifested “ ‘in some unequivocal manner by some distinct act or by inaction inconsistent with an intention to claim forfeiture of a right.’ “ 46 Kan.App.2d at 533–34 (citing Patrons Mut. Ins. Ass'n v. Union Gas System, Inc., 250 Kan. 722, 725–26, 830 P.2d 35 [1992] ). In McMillan v. McKune, 35 Kan.App.2d 654, 660, 135 P.3d 1258 (2006), this court held that the warden's acceptance of the inmate's untimely K.S.A. 60–1501 petition and later ruling on the merits constituted “a waiver of the agency's own rules requiring such requests be filed within 72 hours of the initial classification determination.” In Chelf, this court interpreted this ruling to mean a prison official must address the merits of an inmate's untimely grievance to deem the exhaustion of administrative remedies rule waived. 46 Kan.App.2d at 535 (“In order to prevail on his waiver claim, however, Chelf must provide facts to demonstrate that Officer Jones affirmatively considered Chelf's claim for damages on the merits.”).
In the present case, Sperry alleges that his initial grievance was returned to him because he had utilized the wrong grievance procedure. Sperry provided a document from the warden dated March 26, 2010—26 days after he alleges he filed his initial complaint—with a subject line “Grievance: No Number Assigned.” The document stated that Sperry's grievance was received, an investigation was completed, and the “response provided by your assigned Unit Team Manager is appropriate and correct in accordance with K.A.R. 44–15–101a(B)(2).” The document continues on to mention that “all KDOC facilities had all asbestos and lead paint removed in the late 80's or early 90's.”
This response from the warden clearly indicates that prison officials addressed Sperry's claim on the merits under K.A.R. 44–15–101a(B)(2). Nothing in this document states that Sperry's claim could not be processed because he did not comply with the personal injury claims procedure. This result falls in line with this court's ruling in McMillan that when an agency rules on the merits of an inmate's grievance, it has waived the right to challenge proper exhaustion of administrative remedies. For this reason, the trial court's decision to dismiss Sperry's 42 U.S.C. § 1983 claim for failure to exhaust administrative remedies was improper because KDOC waived its right to assert exhaustion of administrative remedies as an affirmative defense when it addressed the merits of Sperry's initial grievance that was later deemed to be improper.
We reject Sperry's additional arguments because they primarily concern the validity and applicability of K.A.R. 44–16–104a. As mentioned earlier, Sperry's state claims should be dismissed not because he did not comply with K.A.R. 44–16–104a, but because he did not comply with K.S.A. 75–52,138 by not attaching proof of exhaustion of administrative remedies. His 42 U.S.C. § 1983 claim should be allowed to proceed because KDOC waived the exhaustion of administrative remedies rule by addressing his grievance on the merits.
Should This Court Dismiss Plaintiffs Appeal for Failing to Comply With Supreme Court Rule 6.02(A)(4)?
Defendants assert that Sperry's appeal should be dismissed for not complying with Supreme Court Rule 6.02 (2014 Kan. Ct. R. Annot. 40) because he did not include citations to the record in his brief's fact section.
Rule 6.02 sets out guidelines for the content of an appellant's brief. Defense counsel asserts Sperry failed to comply with Rule 6.02(a)(4) which requires:
“[a] concise but complete statement, without argument, of the facts that are material to determining the issues to be decided in the appeal. The facts included in the statement must be keyed to the record on appeal by volume and page number. The court may presume that a factual statement made without a reference to volume and page number has no support in the record on appeal.”
A pro se litigant is in the same position as all civil litigants, pro se or represented by counsel, and must be aware of and follow the rules of procedure. Guillory v. State, 285 Kan. 223, 229, 170 P.3d 403 (2007). Nevertheless, the courts liberally construe pro se pleadings. Bruner v. State, 277 Kan. 603, 605, 88 P.3d 214 (2004). This court discussed the issue of a pro se prisoner's noncompliance with Supreme Court Rules 6.02(d) and (e) and stated, “[t]hese rules do not provide for the dismissal of the appeal as a sanction for noncompliance.” Garner v. Kansas Parole Bd., No. 93,659, 2005 WL 2254536, at *1 (Kan.App.2005) (unpublished opinion).
Despite Sperry's failure to cite to the record, his brief was in substantial compliance with the remainder of the Rules. As a result, his appeal is properly before this court.
Affirmed in part, reversed in part, and remanded for further proceedings concerning the 42 U.S.C. § 1983 claim.