James Harrison v. Jason Gibson ( 2021 )

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NOT TO BE PUBLISHED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-