Gragg v. KcKune

16 P.3d 311, 28 Kan. App. 2d 256
CourtCourt of Appeals of Kansas
DecidedDecember 8, 2000
DocketNo. 84,354
StatusPublished
Cited by4 cases

This text of 16 P.3d 311 (Gragg v. KcKune) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gragg v. KcKune, 16 P.3d 311, 28 Kan. App. 2d 256 (kanctapp 2000).

Opinion

Green, J.:

James A. Gragg appeals from the trial court’s order dismissing his claim under 42 U.S.C. § 1983 (Supp. 1998). On appeal, Gragg argues that his § 1983 claim (1) was not barred by an adequate state remedy and (2) was brought within the statute of limitations. We agree and reverse and remand for trial.

Gragg was incarcerated at the Lansing Correctional Facility in Leavenworth County, Kansas, by the Kansas Department of Corrections (KDOC) for aggravated incest, which was committed before July 1, 1993. Under applicable sentencing laws, rules, and regulations in effect when Gragg was convicted, his conditional release date was April 28,1996. During Gragg’s incarceration, David R. McKune, John Cooling, and William L. Cummings were employed by the KDOC and were allegedly responsible for the determination of Gragg’s date of release from incarceration.

After Gragg’s conviction, K.A.R. 44-6-124(g)(6) was amended to alter the calculation of good time credits for persons convicted of [257]*257crimes committed before July 1, 1993. This administrative regulation resulted in the taking of good time credits from Gragg. Gragg notified McKune, Cooling, Cummings, and the KDOC (collectively referred to as the defendants) that his release date was still to be April 28, 1996.

On November 20,1995, Gragg moved for a writ of habeas corpus seeking recalculation of his release date based on his good time credits. Gragg asserted that as applied to him, K.A.R. 44-6-124(g)(6) was an ex post facto law. The trial court agreed, holding that as applied to Gragg, K.A.R. 44-6-124(g) was an ex post facto law and ordered the Secretary of Corrections to recalculate Gragg’s release date. In a separate case, our Kansas Supreme Court also determined that K.A.R. 44-6-124(g), as applied to inmates with convictions for crimes committed before its enactment, was an ex post facto violation. Stansbury v. Hannigan, 265 Kan. 404, 960 P.2d 227 cert. denied 525 U.S. 1060 (1998).

Despite the trial court’s order on Gragg’s habeas corpus petition, Gragg continued to be incarcerated and no recalculation of his release date was completed. On July 23,1996, Gragg filed a motion to require the defendants to explain why they should not be held in contempt for failing to recalculate his release date. Gragg was released, without explanation, on July 27, 1996. Gragg was incarcerated 90 days beyond his scheduled release date of April 28, 1996, and 47 days beyond the date the trial court ordered a recalculation of his release date.

On April 28,1998, Gragg filed a petition seeking damages under § 1983 and for negligence attributable to the defendants. The trial court granted a motion to dismiss filed by the defendants. The trial court determined that Gragg’s cause of action under § 1983 was barred because an adequate state remedy for false imprisonment was available to Gragg. The trial court further ruled that a false imprisonment claim should have been brought within the 1-year statute of limitations. In addition, the trial court dismissed the negligence claim because it was an attempt to circumvent the 1-year statute of limitations for false imprisonment.

Gragg’s first argument on appeal is that his § 1983 claim is not barred even if an adequate state remedy may have been available. [258]*258The issue of whether Gragg’s § 1983 claim is barred by an adequate state remedy is a question of law subject to unlimited review by this court. See Swinehart v. City of Ottawa, 24 Kan. App. 2d 272, 275, 943 P.2d 942 (1997).

42 U.S.C. § 1983 (Supp. 1998) provides, in part:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, or any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

42 U.S.C. § 1983 (Supp. 1998) is not itself a source of substantive rights, but rather a method for vindicating federal rights elsewhere conferred. Graham v. Connor, 490 U.S. 386, 393-94, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989).

The United States Supreme Court first addressed whether a § 1983 claim is barred by an adequate state law remedy in Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), overruled in part on other grounds Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986). In Parratt, an inmate ordered hobby materials that were lost by prison employees. The inmate brought an action under § 1983 against prison officials for the deprivation of his property without due process of law. The Parratt Court held that since the deprivation was the result of a random and unauthorized act, there was no way for the state to protect against these violations in advance and the available state remedy was adequate under these specific facts., 451 U.S. at 541-44.

The Parratt rule was followed by the Kansas Supreme Court in Alvarado v. City of Dodge City, 238 Kan. 48, 708 P.2d 174 (1985). In Alvarado, the court addressed a § 1983 claim against an off-duty police officer for his actions as a store security guard in apprehending the plaintiff as a suspected shoplifter. The Alvarado court recognized that where a deprivation of fife, liberty, or property is “caused by a random and unauthorized state act for which prior process is impracticable or impossible,” a postdeprivation remedy is the avenue for redress and a § 1983 claim does not he. [259]*259238 Kan. at 54. Alvarado held that under the facts of that case, “the Kansas tort actions for false imprisonment, battery, and defamation provide an adequate postdeprivation remedy sufficient to satisfy the requirements of due process under the Fourteenth Amendment.” 238 Kan. at 55.

Parratt and Alvarado were distinguished from the facts presented in Allison v. Board of Johnson County Comm’rs, 241 Kan. 266, 271, 737 P.2d 6 (1987). Allison involved an unconstitutional taking of property by a special assessment to pay for wastewater treatment. The Allison court held that neither Parratt nor Alvarado was applicable in that case because the unconstitutional taking of the plaintiffs’ property resulted from an administrative procedure that did not contain proper postdeprivation procedural due process safeguards. 241 Kan. at 271. Allison

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Bluebook (online)
16 P.3d 311, 28 Kan. App. 2d 256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gragg-v-kckune-kanctapp-2000.