Lonnie Harris v. Jenny Zirklebach ( 2021 )

RENDERED: JANUARY 29, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1293-MR
LONNIE HARRIS APPELLANT
APPEAL FROM MUHLENBERG CIRCUIT COURT
v. HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 19-CI-00202
JENNY ZIRKLEBACH, FELICIA HOWARD,
KEVIN MAZZA, KARL DOLL, JIM YATES,
AND GREG MOORE APPELLEES
OPINION
AFFIRMING
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BEFORE: ACREE, JONES, AND K. THOMPSON, JUDGES.
JONES, JUDGE: Lonnie Harris, pro se, appeals from the Muhlenberg Circuit
Court’s order dismissing his civil complaint, entered July 30, 2019. We affirm the
circuit court’s order.
BACKGROUND
Harris is an inmate currently serving a sentence with the Kentucky
Department of Corrections (the DOC). The appellees are all employees of the
DOC at Green River Correctional Complex (Green River). Harris alleges that, on
February 9, 2019, a defective door at a Green River dormitory slammed shut on his
finger, causing him an injury which required seven stitches to repair.
Following this incident, Harris filed a grievance with the DOC and in
the field marked “action requested” asked “that all doors be fixed now and in the
future when doors get broken.” (Record (R.) at 37.) The DOC’s informal
resolution to Harris’s grievance was to notify the locksmith and implement a repair
of the door. Harris was not satisfied with this resolution, and he elevated it through
the prison administrative process. At each step, the administration agreed with
Harris that the doors should be safe. Harris, however, argued the repairs were an
insufficient response and wanted an admission by the DOC that the door had been
broken for some time and “created an unsafe environment.” (R. at 39.)
Ultimately, the Adjustment Commissioner issued the following ruling:
I have reviewed your grievance. As stated at all levels of
the grievance, the locksmith inspected the door and made
some adjustments to the door. The doors have been
checked and all are functioning correctly. Therefore, it
appears your action requested has been met. No further
response necessary.
(R. at 39.)
On May 13, 2019, Harris filed a complaint against the appellees in
their individual capacities, asserting they were aware of the defective door which
caused his injury. Harris claimed the appellees’ inaction violated his rights under
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the Eighth Amendment of the United States Constitution. He also claimed that, if
the incident did not amount to a violation of the Eighth Amendment, the appellees
could “still be held liable in a state tort action.” (R. at 7.) Harris then requested a
jury trial on his damages, which he asserted amounted to $25,000.00. Notably,
Harris’s complaint asserts he “exhausted all administrative remedies available to
him” (R. at 5), but he failed to attach documentation of his administrative
exhaustion efforts to his complaint.
On July 29, 2019, the DOC moved to dismiss Harris’s complaint. The
circuit court granted the motion the next day, stating in its order that Harris had
failed to state a claim under the Eighth Amendment, and he had failed to attach
“filed documents verifying that administrative remedies have been exhausted” (R.
at 28), which is required under Kentucky Revised Statute (KRS) 454.415. Harris
responded to the order in a series of motions, including one motion opposing the
DOC’s motion to dismiss, another motion asking the circuit court to reconsider the
order dismissing his case, and a third motion asking for leave to amend his
complaint to include evidence of exhausted administrative remedies. Harris also
included a memorandum of facts and law in his case, to which he attached
documentation of the administrative actions as noted above. On August 8, 2019,
the circuit court denied all of Harris’s motions filed subsequent to its order
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dismissing the case, reasserting that Harris failed to state an Eighth Amendment
claim. This appeal followed.
ANALYSIS
Harris’s brief presents several arguments asserting the circuit court
erred in his case. First, he argues the circuit court erroneously found his complaint
did not contain an Eighth Amendment claim. Second, Harris argues the circuit
court erroneously denied his motion to reconsider and should have permitted him
enough time to respond to the motion to dismiss. Third, Harris argues the circuit
court erroneously denied his motion to amend his complaint after granting the
motion to dismiss. Fourth, and finally, Harris argues the circuit court erroneously
declined to consider his state tort claim.
After some consideration, we must agree with the circuit court that
Harris’s case required dismissal because his complaint failed to prove exhaustion
of administrative remedies. In KRS 454.415(1), the General Assembly provided
the following:
No action shall be brought by or on behalf of an inmate,
with respect to . . . [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.
Furthermore, the statute uses mandatory language requiring an inmate to attach
documents showing exhaustion of administrative remedies and requiring the circuit
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court to dismiss a complaint if an inmate fails to exhaust administrative remedies.
KRS 454.415(3)-(4).
In his brief, Harris admits he neglected to attach documents proving
exhaustion of administrative remedies. Nonetheless, he argues he should have
been given the opportunity to amend his complaint after the circuit court dismissed
the suit. We considered a similar issue in Thrasher v. Commonwealth, 386 S.W.3d
132 (Ky. App. 2012). In Thrasher, the appellant failed to attach exhaustion
documents to his complaint but argued for leniency, as he was proceeding as a pro
se litigant. Id. at 134. He then proffered documents from his grievance proceeding
to the circuit court. Despite these efforts, the circuit court dismissed the suit for
failure to comply with KRS 454.415. Id. We affirmed the circuit court because
even the belated documentation proffered by the appellant did not show how the
appellant followed the relevant sections of the Kentucky Department of
Corrections Policies and Procedures (CPP). Id.
The circumstances in this case are similar to those in Thrasher.
Pursuant to CPP 14.5(II)(A)1, an inmate who “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 . . . may file a claim with the Claims
Commission.” CPP 14.5(I) explains that the “Claims Commission” is “the entity
established in KRS 49.010 that has the authority to address negligence claims
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against the Commonwealth and its agencies pursuant to KRS 49.020(1).” None of
Harris’s documents purporting to show administrative exhaustion shows a claim
presented to the Claims Commission.
Furthermore, it is striking that none of Harris’s grievances to prison
administration actually presents an Eighth Amendment argument or a claim for
personal injury. Instead, Harris’s requested action was for Green River to repair
the dormitory door—an action which Green River repeatedly agreed to take.
When an inmate fails to argue grounds in his administrative proceedings, he is
precluded from subsequently presenting those grounds to the circuit court. “The
failure to raise an issue before an administrative body precludes a litigant from
asserting that issue in an action for judicial review of the agency’s action.” O’Dea
v. Clark, 883 S.W.2d 888, 892 (Ky. App. 1994). The circuit court did not err in
dismissing this case under KRS 454.415.
CONCLUSION
For the foregoing reasons, we affirm the Muhlenberg Circuit Court’s
order dismissing Harris’s complaint.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Lonnie Harris, pro se Kristin Wehking
La Grange, Kentucky Frankfort, Kentucky
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