James Lang v. Andrew Graham Beshear, Governor

RENDERED: JUNE 2, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1056-MR
JAMES LANG APPELLANT
APPEAL FROM OLDHAM CIRCUIT COURT
v. HONORABLE JERRY CROSBY, II, JUDGE
ACTION NO. 21-CI-00595
ANDREW GRAHAM BESHEAR,
GOVERNOR; CHARLES WARD,
INSPECTOR, OLDHAM COUNTY
HEALTH DEPARTMENT;
COMMONWEALTH OF KENTUCKY;
ERIC FREIDLANDER, SECRETARY
OF THE CABINET FOR HEALTH
AND FAMILY SERVICES;
JOHN/JANE DOE, BRANCH
MANAGER, ENVIRONMENTAL
MANAGEMENT BRANCH;
JOHN/JANE DOE, DIRECTOR OF
THE DIVISION OF PUBLIC HEALTH
AND SAFETY; JOHN/JANE DOES,
MEMBERS OF THE OLDHAM
COUNTY BOARD OF HEALTH;
STEVEN STACK, COMMISSIONER
OF THE DEPARTMENT OF PUBLIC
HEALTH; AND TERESA GAMSKY,
DIRECTOR, OLDHAM COUNTY
HEALTH DEPARTMENT
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CALDWELL, AND CETRULO, JUDGES.
CETRULO, JUDGE: This is an appeal by an inmate at the Roederer Correctional
Complex (“RCC”) from an Order dismissing numerous claims against various
individuals employed by the Commonwealth of Kentucky. While the complaints
are extensive, in a nutshell, the Appellant, James Lang (“Lang”) alleges that the
conditions at the prison did not meet legal requirements and that these conditions
resulted in him contracting COVID-19; that all named defendants are negligent per
se, as well as criminally liable for “official misconduct”; and that he is entitled to
monetary damages. For reasons set forth below, we affirm the Order of the
Oldham Circuit Court.
While it is difficult to discern exactly what Mr. Lang is arguing in his
brief, his complaint was focused on a claim of overcrowding at RCC, which he
alleged resulted in him contracting COVID-19. He alleged in the complaint that
authorities charged with inspecting confinement facilities in Kentucky had failed in
their duty to ensure compliance with various statutes and regulations. He further
alleged that certain defendants falsified official documents and/or failed to inspect
the conditions of his confinement and did not accurately compute the square
footage within the prison to determine the number of prisoners that could be
-2-
legally housed therein. Finally, Lang further alleged that he had exhausted all
administrative remedies available to him, a statement which all defendants below
have contested. All defendants below moved for dismissal on the pleadings, on
several grounds, many of which were applicable.1 However, the Oldham Circuit
Court clearly considered all of the pleadings and briefs, and outlined the statutes
relied upon by Lang, before writing a detailed Opinion and Order dismissing all
claims on the basis that Lang had failed to exhaust administrative remedies.
Our review of an Order dismissing a claim under Kentucky Rule of
Civil Procedure (“CR”) 12.02 is de novo. “Since a motion to dismiss for failure to
state a claim upon which relief may be granted is a pure question of law, a
reviewing court owes no deference to a trial court’s determination . . . .” Fox v.
Grayson, 317 S.W.3d 1, 7 (Ky. 2010). The problem for Lang is that Kentucky law
is clear that inmates can only bring lawsuits regarding the “conditions of their
confinement” once they have exhausted their administrative remedies. Kentucky
Revised Statute (“KRS”) 454.415(1). In reviewing the complaint itself, it is
equally clear that this suit was over a healthcare concern and, as such, a “condition
of his confinement.” We thus incorporate a section of the trial court’s well-
1
Many of the claims herein would also be barred as a matter of law by sovereign or qualified
immunity. See Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001). However, the trial court did not
proceed to those defenses, finding that Lang had failed to exhaust administrative remedies
depriving it of jurisdiction to hear the claims. Thus, we do not address those defenses herein
either.
-3-
reasoned opinion for a discussion of this statute and the law on exhaustion of
remedies:
The Kentucky Department of Corrections Policies
and Procedures 14.6 governs grievances within the prison
system in Kentucky. Specifically, 14.6(II)(B) outlines
what is considered to be a grievable issue within DOC.
Further, KRS 454.415(1)(d) supra specifically states that
an inmate may not bring a civil action on a conditions of
confinement issue without first exhausting his
administrative remedies. See Houston v. Fletcher,
Ky.App., 193 S.W.3d 276, 278 (2006) (finding no
entitlement to appellate review of claims where inmate did
not establish exhaustion of administrative remedies under
the same language in a previous version of KRS 454.415).
See also Hensley v. Commonwealth, Ky.App., 355
S.W.3d 473, 475 (2011) (“KRS 454.415 sets forth proper
procedure for inmates who raise sentence calculation
questions. Subsections (1) and (2) state that all
administrative remedies must be exhausted. Nothing in
Hensley’s brief or the record indicates that he has filed an
administrative complaint or appeal. KRS 454.415
specifically forbids inmates from bringing civil actions
before exhausting the administrative remedies.”) . . . .
There is no denying that this case involves a
conditions of confinement issue. Plaintiff is asserting that
due to the prison overcrowding and the state’s failure to
comply with the requirements of adequate spacing, he was
infected with the COVID virus. He may couch it in other
terms but at its core, this is the issue. Plaintiff contends he
exhausted his administrative remedies by writing to
various individuals in the state addressing this issue.
Plaintiff asserts he couldn’t file a grievance as there was
no mechanism in place to challenge the inspector’s report.
However, KRS 454.415(2) notes that an inmate must still
exhaust his administrative remedies even if the remedy the
inmate seeks is unavailable.
-4-
During the course of the COVID pandemic, many
inmates filed CR 60.02 motions requesting relief from
their sentence. Many of these inmates were at higher risk
than the average individual due to underlying health
concerns. However, these requests were denied as the
Courts agreed this was not an issue that could be addressed
through an inmate’s underlying criminal case. Instead, the
Courts noted this was a condition of confinement issue that
should be addressed through a civil proceeding. See
Merriweather v. Commonwealth, No. 2020-CA-1182-
MR, 2021 WL 5977912, at *2 (Ky.App. Dec. 17, 2021)
(“When conditions of confinement are at issue, like they
are here, the proper venue is for the prisoner to pursue his
claims through the grievance system. See KRS 454.415.
If the prisoner still has concerns after fully exhausting his
administrative remedies, he may file a civil action against
the warden pursuant to KRS 418.040. A civil, conditions-
of-confinement suit is the appropriate way for
Merriweather to raise his constitutional challenges”);
Williams v. Commonwealth, Nos. 2019-CA-0964-MR
and 2020-CA-0638-MR, 2021 WL 943753, at *3 (Ky.
App. Mar. 12, 2021) (“Conditions of confinement claims
are civil in nature; as such, the sentencing court is not the
proper forum to address them.”).
In addition, it does not matter that the grievance
process could not result in monetary damages, as pursuant
to KRS 454.415(2) “[a]dministrative remedies shall be
exhausted even if the remedy the inmate seeks is
unavailable.” See Pearson v. Correct Care Solutions, NO.
2019-CA-1565-MR, 2022 WL 2080253 at *2 (Ky. App.
June 10, 2022).
When conditions of confinement are at issue, like
they are here, the proper avenue is for the prisoner to
pursue his claims through the prison grievance system.
See KRS 1 454.415. If the prisoner still has concerns after
fully exhausting his administrative remedies, he may file
a civil action against the warden pursuant to KRS 418.040.
-5-
Where an administrative remedy is provided by the
statute, relief must be sought from the administrative body
and this remedy exhausted before the courts will take hold.
Ordinarily the exhaustion of that remedy is a jurisdictional
prerequisite to resort to the courts. Goodwin v. City of
Louisville, 309 Ky. 11, 14, 215 S.W.2d 557, 559 (1948)
citing Martin v. Board of Council of City of Danville, 275
Ky. 142, 120 S.W.2d 761, 762 (1938).
As noted above, exhaustion of administrative
remedies is a condition precedent to this Court obtaining
jurisdiction over Plaintiff’s civil claim. As Plaintiff failed
to exhaust his administrative remedies, this Court has no
jurisdiction. . . .
(Footnote omitted.)
Lang argues on appeal that one is not required to exhaust
administrative remedies when to do so would be an “exercise in futility.” He relies
upon Harrison’s Sanitarium, Inc. v Commonwealth, Department of Health, 417
S.W.2d 137 (Ky. 1967), for his position that it would be futile to require him to
pursue remedies against the agencies and employees who all (with the exception of
Governor Beshear) essentially are required to answer to the Cabinet for Health and
Family Services.
We have reviewed Harrison’s Sanitarium. Lang has simply misstated
the holding of that case, and it is not applicable to the case at bar. As the trial court
noted, exhaustion of administrative remedies is generally required prior to turning
to the courts for relief. Kentucky State Police v. Scott, 529 S.W.3d 711, 716 (Ky.
2017). Popplewell’s Alligator Dock No. 1, Inc. v. Revenue Cabinet, 133 S.W.3d
-6-
456, 471 (Ky. 2004). Compliance with KRS 454.415 is mandatory. Thrasher v.
Commonwealth, 386 S.W.3d 132, 134 (Ky. App. 2012). While there are limited
exceptions to that requirement, the purpose of exhaustion requirements is to
prevent inappropriate judicial oversight into administrative agencies charged with
applying and enforcing regulations and statutes. Id.In Harrison’s Sanitarium, a party challenged the validity and
constitutionality of a particular statute on undisputed facts. Here, Lang was
actually seeking “enforcement” of statutes and regulations related to the conditions
of his confinement, and the allegations and relief he sought were very much in
dispute. Lang sought monetary damages, as well as injunctive relief to require “re-
inspection” of all Kentucky prisons. None of these issues can be reviewed
judicially without exhaustion of administrative remedies. He cannot sidestep the
requirement of pursuit of administrative remedies simply because he believes he
would not prevail in that forum. When none of the limited exceptions apply, then
the courts are deprived of subject matter jurisdiction. The trial court properly
followed the law of this Commonwealth and dismissed the claims in their entirety.
The ruling is hereby affirmed.
ALL CONCUR.
-7-
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE
GOVERNOR BESHEAR:
James Lang, pro se
LaGrange, Kentucky S. Travis Mayo
Laura C. Tipton
Frankfort, Kentucky
BRIEF FOR APPELLEES
OLDHAM COUNTY BOARD OF
HEALTH; OLDHAM COUNTY
HEALTH DEPARTMENT; MATT
RHOADES; CHARLES WARD;
AND JOHN/JANE DOE MEMBERS
OF THE OLDHAM COUNTY
BOARD OF HEALTH:
Carol S. Petitt
Matthew R. Bastin
Pewee Valley, Kentucky
BRIEF FOR APPELLEE
COMMONWEALTH OF
KENTUCKY:
Matthew F. Kuhn
Michael R. Wajda
Assistant Attorneys General
Frankfort, Kentucky
BRIEF FOR APPELLEE
CABINET FOR HEALTH AND
FAMILY SERVICES:
Marian B. Hogan
Frankfort, Kentucky
-8-