Opinion
NO. 2011-CA-001824-MR
08-03-2012
JERRY TYRONE ANDERSON APPELLANT v. DON BOTTOM, WARDEN; ERIC SIZEMORE, ADJUSTMENT OFFICER APPELLEE
BRIEF FOR APPELLANT PRO SE: Jerry Tyrone Anderson West Liberty, Kentucky BRIEF FOR APPELLEE: J. Todd Henning Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
ACTION NOS. 11-CI-03421
OPINION
AFFIRMING IN PART, REVERSING IN PART
AND REMANDING
BEFORE: CLAYTON, LAMBERT, AND STUMBO, JUDGES. LAMBERT, JUDGE: Proceeding pro se, Jerry Anderson appeals from the Fayette Circuit Court's August 15, 2011, order dismissing his petition for declaration of rights. After careful review, we affirm in part, reverse in part, and remand this matter for proceedings consistent with this opinion.
In October 2010, Jerry Anderson was found guilty in a prison disciplinary hearing of several violations of Corrections Policy and Procedure 15.2. The charges consisted of possession of staff uniform or uniform related items; stealing or possession of stolen goods over $100.00; violating any condition of an outside detail; and unauthorized communication with the public. The charges stemmed from incidents occurring while Anderson was working at the Kentucky Horse Park's "Tent City," located in Lexington, Kentucky, on October 13, 2010.
The record reflects that adjustment officer Eric Sizemore found Anderson to be guilty of the above offenses after a hearing on October 14, 2010. Subsequently, Anderson appealed the decision to Don Bottom, the Warden of Blackburn Correctional Complex. The record reflects that Anderson appealed the decision on October 15, 2010, and the appeals are date-stamped October 18, 2010. There is a separate appeal for each charge, which details the incident date, hearing date, and the stated reasons for the appeal. However, only three disciplinary hearing appeals appear in the record. An appeal for the charge of stealing or possessing goods over $100.00 does not appear in the record.
A letter from Warden Bottom dated November 19, 2010, states that he saw no reason to alter his decision. Subsequently, on July 7, 2011, Anderson filed a petition for Declaration of Rights pursuant to Kentucky Revised Statutes (KRS) 418.040, seeking declaratory relief and a new disciplinary hearing. On August 15, 2011, the Fayette Circuit Court entered an order dismissing Anderson's petition for Declaration of Rights, finding that Anderson had failed to establish that he had exhausted his administrative remedies pursuant to KRS 454.415. Anderson subsequently filed a motion to alter, amend, or vacate pursuant to Kentucky Rules of Civil Procedure (CR) 59.05. That motion was denied by order entered September 15, 2011. This appeal now follows.
KRS 454.515 states:
(1) No action shall be brought by or on behalf of an inmate, with respect to:In the instant case, Warden Bottoms and Eric Sizemore (hereinafter the Appellees) argue that Anderson attached documents to his brief that purport to be his appeal to Warden Bottoms but that he failed to attach such documents to his initial complaint or petition, justifying the trial court's dismissal of the petition. However, these same documents, save the documented appeal for stealing or possessing goods over $100.00, are in the record from the Circuit Court as certified on appeal and were attached to Anderson's reply to the Appellees' motion to dismiss the petition. Thus, we find the Appellees' argument that the trial court was without a record to consider to be misguided. With regard to three of the charges, Anderson attached documents detailing the reasons for his appeal to the Warden. Further, the letter from the Warden declining to change his decision was also included in the record. Thus, the Circuit Court had proof that Anderson had exhausted his administrative remedies and had records to consider Anderson's claims in evaluating the petition for the Declaration of Rights.
(a) An inmate disciplinary proceeding;
(b) Challenges to a sentence calculation;
(c) Challenges to custody credit; or
(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.
(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, and may include as part of its order an assessment of court costs against the inmate as the court may deem reasonable and prudent. The correctional facility may enforce this assessment against the inmate's canteen account and against any other assets of the inmate through any other mechanism provided by law.
(5) A court which dismisses a civil action brought by an inmate for the reasons set out in this section shall include as part of its order specific findings as to the reasons for the dismissal. The court shall, upon issuing the order, direct the circuit clerk to transmit a copy of the entire court order to the official having custody of the inmate, to all persons named as a party defendant in the action,
and also, by certified mail, return receipt requested, to the inmate.
(6) The period of limitations applicable to the cause of action after it has been dismissed by a court under this section for failure to exhaust administrative remedies is the period fixed by the applicable statute or ninety (90) days following the exhaustion of administrative remedies if the grievance is filed within the applicable period of limitations, whichever is later. Nothing in this subsection shall be construed to revive a cause of action that is barred by the applicable period of limitations.
In light of the fact that Anderson's detailed appeals to the Warden were attached to his filings in the trial court, we reverse and remand the trial court's dismissal of the Declaration of Rights petition with regard to the three claims supported by the record with the instructions that the trial court consider Anderson's petition for declaration of rights in light of the record. However, it does not appear from the record that Anderson appealed the charge against him of stealing or possessing stolen goods over $100.00 to the Warden, as such an appeal is not in the Circuit Court's record as certified on appeal. Thus, we affirm the trial court's dismissal of Anderson's petition for failure to exhaust all administrative remedies with regard to that one charge.
ALL CONCUR. BRIEF FOR APPELLANT PRO SE: Jerry Tyrone Anderson
West Liberty, Kentucky
BRIEF FOR APPELLEE: J. Todd Henning
Frankfort, Kentucky