Opinion
No. 109,051.
2013-07-19
Anthony LEROY DAVIS, Appellant, v. LANSING CORRECTIONAL FACILITY, et al., Appellees.
Appeal from Leavenworth District Court; Dan K. Wiley, Judge. Anthony Leroy Davis, appellant pro se. Fred W. Phelps, Jr., legal counsel, of Kansas Department of Corrections, for appellees.
Appeal from Leavenworth District Court; Dan K. Wiley, Judge.
Anthony Leroy Davis, appellant pro se. Fred W. Phelps, Jr., legal counsel, of Kansas Department of Corrections, for appellees.
Before GREEN, P.J., PIERRON, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Anthony Leroy Davis appeals from the dismissal of his pro se civil action against the defendants, Lansing Correctional Facility (LCF), Warden David R. McKune, and other unnamed defendants. The district court dismissed the action under K.S.A.2012 Supp. 60–212(b)(6) for failure to state a claim upon which relief could be granted.
Davis filed the action under Chapter 60 seeking damages in excess of $75,000 for what he termed as some sort of negligent seizure of his money, which caused him personal injuries and mental suffering. His petition, as well as his pro se brief, is very unclear, disjointed, and hard to understand. Also, he states no facts that would support any cause of action against the defendants.
The defendants filed a motion to dismiss, which argued that Davis' petition did not properly state a claim for relief, as it was “so devoid of factual allegations that it [was] difficult, if not impossible, to ascertain what supposed wrongs ... were committed .” The defendants further alleged that Davis failed to exhaust his administrative remedies, under K.S.A. 75–52,138, because one of Davis' attachments indicated that he needed to pursue his claim through the property claims procedure, rather than the grievance process, and Davis did not attach such a claim to his petition.
After reviewing Davis' petition, the district court dismissed it pursuant to K.S.A.2012 Supp. 60–212(b)(6) for failure to state a claim upon which relief could be granted because it merely presented “conclusory allegations.” The court explained, “This Court, consistent with Kansas law, has often held that Kansas is a notice pleading state and that only a bare-bones petition is required. However, [Davis' petition] does not allege a single fact.”
Davis filed several motions, including a “Motion [t]o Amend Finding[s] Pursuant to [K.S.A.2012 Supp.] 60–252” and a “Motion [f]or New Trial [,] Amendment of Judgment.” In his motion for additional findings, he alleged the following claims entitled him to summary judgment: (1) On or about August 6, 2012, LCF engaged in “[f]raudulent misrepresentation of [his] ‘money’ to be [a] reprisal windfall tax to [him] due to [p]lain-error of it's [ sic ] Agents”; and (2) “As [a] direct result of defendants['][n]egligence [ sic ] treatment, [he][s]uffered [p]ersonal-injury including mental suffering created by defendants['][f]raud and malice misconduct [a]nd deprivals, too [ sic ] [his] ‘property’ [a]nd ‘[l]iberty’ interests that [a]re entitled to protection by the Fourteenth Amendment's Due Process Clause.” In his motion to alter or amend, Davis essentially argued that the district court erred because LCF failed to file a timely responsive pleading.
In subsequently ruling on the motions, the district court found that Davis was not entitled to any relief because the motions contained “no new legal argument, theory, or facts that were not contained in [his] original pleadings.” Davis subsequently filed this timely appeal.
On appeal, Davis does not address the basis for the order of dismissal i.e., his failure to state a claim for relief. He only attempts to excuse his failure to state a claim by asserting the district court erred by failing to liberally construe the defendants' motion to dismiss as a motion for summary judgment and by ignoring the defendants' alleged failure to file a timely responsive pleading. Consequently, this appeal is subject to summary dismissal under Supreme Court Rule 7.042(b)(2) (2012 Kan. Ct. R. Annot. 63). See Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011) (issue not briefed by appellant is deemed waived or abandoned); Greenwood v. Blackjack Cattle Co., 204 Kan. 625, 628, 464 P.2d 281 (1970) (findings and conclusions made by the district court which an appellant fails to address on appeal are conclusive).
Furthermore, even if Davis had properly briefed this issue, summary affirmance is still appropriate. See Supreme Court Rule 7.042(b)(5) (2012 Kan. Ct. R. Annot. 63) (“A case may be affirmed by summary opinion if the court determines ... the opinion or findings of fact and conclusions of law of the district court or administrative tribunal adequately explain the decision.”). Based upon a thorough review of the record on appeal and the briefs submitted by the parties, the district court did not err when it dismissed the petition. Davis clearly failed to provide enough information to apprise the defendants of the facts that would support his claim for relief, as his petition and later filed motions merely assert vague and conclusory allegations.
Affirmed under Rule7.042 (b)(2) and (5).