James Harrison v. Jason Gibson

• Court: Court of Appeals of Kentucky
• Decided: April 1, 2021
• Docket: 2019 CA 000955
• Status: Unknown

Opinion

RENDERED: APRIL 2, 2021; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2019-CA-0955-MR

JAMES HARRISON APPELLANT

APPEAL FROM OHIO CIRCUIT COURT v. HONORABLE TIMOTHY R. COLEMAN, JUDGE ACTION NO. 18-CI-00381

JASON GIBSON, ANDREW BENTON, KEVIN DENNIS, ERIC NANTELL, GERALD HELTON, CARL DAVIS, KATHY LITTERAL AND UNKNOWN DEFENDANTS APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: COMBS, KRAMER, AND K. THOMPSON, JUDGES.

THOMPSON, K., JUDGE: James Harrison, a pro se inmate, appeals from orders

of the Ohio Circuit Court dismissing his case for lack of exhaustion of remedies

and failure to state a claim on which relief may be granted. On Friday, January 26, 2018, correctional staff employed at Eastern

Kentucky Correctional Complex (EKCC) transported nine inmates, including

Harrison, because they were being transferred to other prison facilities. Harrison

and the other inmates traveled in a van (the prisoner van) being driven by

Correctional Officer Andrew Benton with Correctional Sergeant Eric Nantell in the

front passenger seat. The van was being followed by a second van (the property

van) containing the inmates’ personal belongings, which was driven by

Correctional Officer Jason Gibson with Correctional Lieutenant Kevin Dennis in

the passenger seat. While exiting the Western Kentucky Parkway for Beaver Dam

in Ohio County, the property van rear-ended the prisoner van.

Harrison filed two health care grievances in the days immediately

following the accident listing multiple complaints about his medical treatment.

Some of his complaints were related to the accident and some were not. Both

health care grievances were resolved informally, and Harrison did not appeal.

On February 2, 2018, Harrison was notified that he was placed on

grievance restriction, which meant he was prohibited from filing more than one

grievance every ten days.

On November 8, 2018, Harrison filed a complaint in circuit court

against Benton, Nantell, Gibson, Dennis, Correctional Lieutenant Carl Davis,

Correctional Lieutenant Gerald Helton, EKCC Warden Kathy Litteral, and

-2- unknown defendants who were insurance providers for the Kentucky Department

of Corrections (DOC). Harrison alleged that because the prisoner van only had

enough seatbelts for seven inmates, none of the inmates was provided with

seatbelts. He alleged he and the other inmates were injured in the crash, but no one

reported the accident and, despite the inmates’ complaining about their injuries,

they were denied medical treatment until they reached their new facilities and went

through the intake process.

Harrison argued he was unable to exhaust his administrative remedies

based upon the actions of the defendants. Later, he explained about the grievance

restriction.

Harrison sought damages and listed various causes of action against

the defendants generally, including claims regarding the failure provide a seatbelt

for him, negligence for the motor vehicle accident, failure to report the accident,

failure to seek immediate treatment for his injuries, inadequate supervision, and a

conspiracy to cover up the true extent of the accident. Harrison argued he

sustained bodily injury and continues to suffer physical and mental pain. He

argued he was entitled to recover for his past and future medical expenses, receive

an independent evaluation and treatment, and receive other damages.

Harrison attached the grievance restriction memorandum, a health

care grievance he submitted for medical treatment after the motor vehicle accident,

-3- an incident report summary, occurrence reports filed by Benton, Nantell, Gibson,

Dennis, and Davis, and photos they took of the two vans. All reports by DOC

employees indicated the vans sustained no damage, the “bump” was minor and all

the inmates reported they were fine; the photos showed no damage to the vans.

In 2019, the defendants filed motions to dismiss. Benton, Nantell,

Dennis, Davis, Helton, and Litteral argued that Harrison failed to exhaust his

administrative remedies as required by Kentucky Revised Statutes (KRS) 454.415

and failed to state a claim upon which relief may be granted relative to these

defendants because only Gibson was responsible for the accident and he was the

only person with a duty to report the accident. They attached an affidavit by Roger

Mitchell to establish that the health care grievances had not been appealed. Gibson

and the unknown defendants filed an amended motion to dismiss based on

Harrison’s failure to exhaust his administrative remedies.

Harrison responded to both motions and indicated he had valid claims

against these defendants. In support of his claims, he attached an affidavit from

James Mattingly, another inmate, who claimed to have been transported with

Harrison when the accident occurred and provided an account consistent with

Harrison’s about how the inmates were injured and the guards’ failure to respond

appropriately.

-4- As to failure to exhaust his administrative remedies, Harrison argued

he should not be penalized for failing to file a grievance when placed on grievance

restriction which prohibited him from exhausting all necessary grievances. He also

asserted he was satisfied with the informal resolution of his health care grievances

at the time.

The circuit court summarily granted the motions to dismiss. Harrison

filed motions to reconsider; these were denied.

We agree that the circuit court was obligated to dismiss Harrison’s

action where he failed to exhaust his administrative remedies before filing suit and

affirm on that basis.

KRS 454.415 provides in relevant part:

(1) No action shall be brought by or on behalf of an inmate, with respect to:

...

(d) A conditions-of-confinement issue;

until administrative remedies as set forth in the policies and procedures of the Department of Corrections, county jail, or other local or regional correctional facility are exhausted.

(2) Administrative remedies shall be exhausted even if the remedy the inmate seeks is unavailable.

(3) The inmate shall attach to any complaint filed documents verifying that administrative remedies have been exhausted.

-5- (4) A court shall dismiss a civil action brought by an inmate for any of the reasons set out in subsection (1) of this section if the inmate has not exhausted administrative remedies[.]

KRS 454.415(4) requires dismissal if the inmate has not proven exhaustion of

administrative remedies. Thrasher v. Commonwealth, 386 S.W.3d 132, 134

(Ky.App. 2012). “[E]xhaustion of administrative remedies is a jurisdictional

prerequisite to seeking judicial relief.” Commonwealth v. DLX, Inc., 42 S.W.3d

624, 625 (Ky. 2001).

“Duly promulgated administrative regulations have the ‘force and

effect of law.’” Woods v. Commonwealth, 599 S.W.3d 894, 897 (Ky.App. 2020)

(quoting Linkous v. Darch, 323 S.W.2d 850, 852 (Ky. 1959)). 501 Kentucky

Administrative Regulations (KAR) 6:020 § 1(1) incorporates the Department of

Corrections Policies and Procedures (CPP) by reference, Woods, 599 S.W.3d at

897, including CPP 14.5, Claims Commission, and CPP 14.6, Inmate Grievance

Procedure.

CPP 14.6(II)(B) provides in relevant part: “A grievable issue shall

include any aspect of an inmate’s life in prison that is not specifically identified as

a non-grievable issue.” It then lists six items as examples of what a grievable issue

may include, including “[p]ersonal action by staff” and “[h]ealth care concern.”

-6- CPP 14.6(II)(C) provides a list of non-grievable issues none of which is

applicable here.

Because each issue Harrison raised in his complaint could come under

a personal action by staff, was a health concern, or is not specifically identified as a

non-grievable issue, each issue was required to be grieved through the entire

administrative process prior to Harrison’s filing his complaint and then Harrison

was required to attach proof of these steps to his complaint.

The process to exhaust administrative remedies through a grievance is

set out in CPP 14.6(II)(J). The inmate must file the grievance within five business

days after the incident occurred. CPP 14.6(II)(J)(1)(a)(2). First the matter is

resolved informally, then if the inmate decides to seek further review it progresses

to a grievance committee hearing, an appeal to the warden, and then an appeal to

the commissioner. CPP 14.6(II)(J)(1)-(4). The process for a health care grievance

is addressed in CPP 14.6(II)(K)(1)-(3) and concludes with a final administrative

review by the medical director.

On appeal, Harrison’s defense for failure to exhaust his administrative

remedies through grievances is that he was prohibited from filing any further

grievances before the five-day window for him to file grievances had expired, and

that his issues are not the sort that the grievance process can address.

-7- Because the accident occurred on Friday, January 26, 2018, Harrison

had until the following Friday, February 2, 2018, to file any needed grievances.

The grievance restriction memorandum was dated February 2, 2018, but we do not

know if Harrison received it that day.

CPP 14.6(II)(E)(3) provides in relevant part:

If the warden determines that an inmate or group of inmates has abused the grievance procedure by filing numerous frivolous or harassing grievances, the Warden may limit the number of grievances which may be filed by that inmate or group of inmates. An inmate or group of inmates, whose grievances have been limited, shall be allowed to file no more than one (1) grievance every ten (10) business days.

Harrison clearly failed to exhaust the health care grievance process

following the motor vehicle accident because he did not pursue any additional

administrative process after an informal resolution was reached. If Harrison was

dissatisfied with his treatment later, he was required to file a new grievance. If

Harrison wanted an independent evaluation and treatment of his injuries after the

accident, he needed to raise this request in the original grievance and appeal any

denial of that request.

The question as to whether a grievance restriction can excuse the

filing of grievances required to exhaust administrative remedies appears to be a

novel one. However, upon careful examination of this issue, we believe that

Harrison has not adequately pled or established such a defense.

-8- As we read the grievance restriction memorandum, it was a

prospective limitation which tracks the language of CPP 14.6, meaning that

Harrison could still file a grievance when he received it, and was only limited from

filing a second grievance within the following ten days. The memorandum stated

whom Harrison needed to contact if he had any questions about this restriction.

However, even if the memorandum could be interpreted as preventing Harrison

from filing another grievance until ten days after his previous medical grievance,

he still failed to establish exhaustion.

Harrison has not pled that he would have raised these issues in a

grievance had he not received the restriction memorandum. Additionally, Harrison

made no attempt to file a grievance that raised the issues which he is now seeking

to litigate in court.

To establish sufficient exhaustion under KRS 454.415, Harrison

needed to do more. The statute at minimum would require that he attempt to

grieve each cause of action and force prison officials to reject his grievance due to

the grievance restriction imposed upon him, and then attach such proof to his

complaint.

Harrison has failed to demonstrate that he did all he could to file such

a grievance and that the failure to have his grievance reviewed was beyond his

control and unavoidable despite his due diligence. Compare with Lee v. Haney,

-9- 517 S.W.3d 500, 504-07 (Ky.App. 2017) (remanding for the circuit order to

consider whether equitable tolling should apply to excuse an inmate’s failure to

exhaust his administrative remedies where the inmate prepared his grievance

appeal well in advance of the deadline, placed it in the prison mail system, and

provided proof of his actions).

It is no excuse that the issues could not be resolved through a

grievance. KRS 454.415(2). Harrison was required to exhaust his administrative

remedies before filing his complaint.

Additionally, as to Harrison’s negligence claim, there was a further

avenue for exhaustion. We address it despite the parties’ failure to raise it, as it

provides an additional reason why affirmance for failure to exhaust is appropriate.

CPP 14.5(II)(A)(1) provides:

If an individual believes that he has suffered a loss or injury to his person or property as a result of negligence on the part of Corrections or its employee or agent, he may file a claim with the Claims Commission. All claims shall be processed through the Claims Commission if payment is required. A claim shall not be brought before the Commission unless the value of the total amount of damages claimed therein meets the limits set forth in KRS 49.180 [$250 or greater].

As Harrison was requesting damages due to negligence and the bodily

harm he incurred because of the motor vehicle accident, Harrison was also required

-10- to proceed administratively by filing a claim with the Claims Commission,1

pursuant to KRS 49.020. The Claims Commission has exclusive jurisdiction over

these types of claims. KRS 49.040(1). Then Harrison would need to proceed to

exhaust that avenue of review. See Harris v. Zirklebach, No. 2019-CA-001293-

MR, 2021 WL 298786, *2 (Ky.App. Jan. 29, 2021) (unpublished) (requiring an

inmate to show that his negligence claim for a finger injury due to a defective

prison door was administratively exhausted both through attachment of

documentation of the grievance process and the Claims Commission process);

Tramber v. Commonwealth, No. 2017-CA-000437-MR, 2018 WL 1565676, *2

(Ky.App. Mar. 30, 2018) (unpublished) (discussing an inmate’s process in

proceeding with a grievance and action before the Claims Commission in seeking

compensation for the loss of two purportedly valuable books).2

The Claims Commission has different processes for addressing claims

depending upon the value of the claim above that jurisdictional minimum. KRS

49.090(2), (3). Had Harrison done so and been dissatisfied with the Claims

Commission’s final decision, he would then be authorized to file a proceeding in

1 But see 802 KAR 2:010E (Executive Order 2020-708 relating to negligence claims which purports to abolish the Claims Commission, replace it with a new Board of Claims, and provides specific mechanisms for how such claims are heard). 2 Pursuant to the Kentucky Rules of Civil Procedure 76.28(4)(c), we may consider these unpublished appellate decisions because there are no published opinions which adequately address the issue of whether negligence issues against the DOC and its employees also requires exhaustion through the Claims Commission process.

-11- circuit court if his claim was for $2,500 or more, KRS 49.150(2), and then appeal

to this Court, KRS 49.160.

Accordingly, we affirm the Ohio Circuit Court’s orders dismissing

Harrison’s complaint on the basis that he failed to establish exhaustion of his

administrative remedies.

COMBS, JUDGE, CONCURS.

KRAMER, JUDGE, CONCURS IN RESULT ONLY.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES ANDREW BENTON, KEVIN DENNIS, ERIC James Harrison, pro se NANTELL, GERALD HELTON, Eddyville, Kentucky CARL DAVIS, KATHY LITTERAL:

Kristin Wehking Frankfort, Kentucky

BRIEF FOR APPELLEES JASON GIBSON AND UNKNOWN DEFENDANTS:

Aida Almasalkhi Prospect, Kentucky

-12-