Strader v. Zmuda ( 2023 )

NOT DESIGNATED FOR PUBLICATION
No. 125,308
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
JAMES STRADER,
Appellant,
v.
JEFFREY ZMUDA, Secretary of Corrections, et al.,
Appellees.
MEMORANDUM OPINION
Appeal from Leavenworth District Court; GERALD R. KUCKELMAN, judge. Opinion filed
February 10, 2023. Affirmed.
Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.
Libby K. Snider, of Kansas Department of Corrections, for appellees.
Before CLINE, P.J., ISHERWOOD, J., and PATRICK D. MCANANY, S.J.
PER CURIAM: James Strader, an inmate in the Lansing Correctional Facility, filed
a pro se petition for relief under K.S.A. 60-1501. He alleged that various prison
authorities and personnel committed multiple cruel and unusual acts against him. They
appear to center on the prison (1) administering to him a medication, which had
deleterious side effects he previously had experienced, (2) serving him food containing
onion powder to which he was allergic, and (3) mistreating or failing to treat a broken
wrist injury he sustained.
It took Strader nine months to serve the respondents and pay his filing fee. Once
these were accomplished, the district court appointed counsel to represent him.
1
Both before and after counsel's appointment, Strader filed numerous pro se
documents in which he alleged that the prison medical staff were liars, that a nurse
sodomized him by performing a medical procedure on him without his consent, that the
Federal Bureau of Investigation and the Secret Service were monitoring him with their
"smart dust technology" and "military sonar monitoring system," and that he needed
protection from the Proud Boys who had threatened to kill him.
Appointed counsel eventually filed a second amended petition in which Strader
alleged that the prison medical staff refused to give him necessary medical treatment,
which constituted shocking and intolerable conduct.
Respondents moved to dismiss Strader's K.S.A. 60-1501 petition, which the
district court granted. In its written ruling on the motion, the court stated:
"Petitioner James Strader is an inmate in the custody of the Secretary of
Corrections located at Lansing Correctional Facility. Petitioner filed a Petition for Writ of
Habeas Corpus, alleging that he was subjected to violent assaults and denied medical
care. A writ of habeas corpus was issued by the court, and Respondent, former warden
Shannon Meyer, filed a Motion to Dismiss for failure to state a claim upon which relief
can be granted.
"The Court has concluded that the allegations in the Petition are insufficient to
support a claim for relief. Therefore, the Petition is dismissed."
Strader appeals.
We have unlimited review when considering the district court's summary dismissal
of a K.S.A. 60-1501 petition. Johnson v. State, 289 Kan. 642, 649, 215 P.3d 575 (2009).
2
"Summary dismissal is appropriate if, on the face of the petition, it can be established that
petitioner is not entitled to relief, or if, from undisputed facts, or from uncontrovertible
facts, such as those recited in a court record, it appears, as a matter of law, no cause for
granting a writ exists." 289 Kan. at 648-49.
K.S.A. 75-52,138 provides that an inmate "shall have exhausted such inmate's
administrative remedies, established by rules and regulations promulgated by the
secretary of corrections or by county resolutions" before suing the State of Kansas or any
of its employees. Moreover, "[u]pon filing a petition in a civil action, such inmate shall
file with such petition proof that the administrative remedies have been exhausted."
K.S.A. 75-52,138.
K.A.R. 44-15-101(b) states that before a prison inmate uses the administrative
grievance process, he or she should try to reach "an informal resolution of the matter with
the personnel who work with the inmate on a direct or daily basis." If this informal
resolution fails, K.A.R. 44-15-101(d) outlines the sequential formal grievance process
which requires (1) submitting the grievance to a unit team member of the facility, then
(2) submitting the grievance to the warden, and finally (3) submitting the grievance to the
office of the Secretary of Corrections.
If Strader failed to prove that he exhausted his administrative remedies before
bringing this action as required by K.S.A. 2021 Supp. 60-1501(b), K.S.A. 75-52,138, and
K.A.R. 44-15-102, then the district court did not err in dismissing Strader's action.
Nothing within Strader's pro se petition, first amended petition with counsel, or
second amended petition with counsel addresses whether Strader exhausted his
administrative remedies. Neither his pro se petition nor his amended petitions were
accompanied with copies of the grievance forms he was required to submit in order to
3
satisfy the three-level grievance process. The fact that Strader initially proceeded pro se
does not excuse his failure to adhere to the procedure required to demonstrate that he
satisfied the three-step grievance process as a prerequisite to being entitled to bring an
action under K.S.A. 60-1501. "Under Kansas caselaw and rules, pro se litigants in a civil
case are required to follow the same rules of procedure and evidence which are binding
upon litigants who are represented by counsel." Joritz v. University of Kansas, 61 Kan.
App. 2d 482, Syl. ¶ 2, 505 P.3d 775, rev. denied 315 Kan. 968 (2022).
Nothing in the record on appeal supports Strader satisfying his obligation to
exhaust his administrative remedies before filing his K.S.A. 60-1501 petition. He was
required to make this showing in his petition and by means of mandated accompanying
documents filed with the district court. Without this showing, the district court had no
authority to grant relief on Strader's petition. Having failed to make this showing,
Strader's petition, on its face, does not state a claim upon which relief can be granted. In
its ruling on the State's motion to dismiss for failure to state a claim, the district court
stated: "The Court has concluded that the allegations in the Petition are insufficient to
support a claim for relief. Therefore, the Petition is dismissed." The district court did not
err in doing so.
Affirmed.
4