Opinion
NO. 2017-CA-001742-MR
11-30-2018
LESLIE HAUN APPELLANT v. LADONNA THOMPSON APPELLEES
BRIEF FOR APPELLANT: Leslie Haun, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Richard D. Lilly Department of Corrections Office of Legal Services Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 15-CI-00827 OPINION AND ORDER
DISMISSING
Parties should take note that this decision is designated an "opinion and order" and therefore falls under CR 76.38. Petitions for rehearing are thus not authorized under CR 76.32(1)(a).
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BEFORE: JOHNSON, MAZE, AND NICKELL, JUDGES. MAZE, JUDGE: Leslie Haun, pro se, appeals from the Franklin Circuit Court's order dismissing his petition for a declaration of rights, entered August 31, 2017. Because Haun's notice of appeal and supporting documentation were tendered more than thirty (30) days after entry of the circuit court's order, we must dismiss this appeal as untimely.
Judge Robert G. Johnson concurred in this opinion prior to the expiration of his term of office. Release of the opinion was delayed by administrative handling.
The circuit court order was signed on August 30, 2017, and the circuit clerk originally stamped the order as entered on August 30, 2017. However, it appears the original stamped date was erroneous, as the clerk corrected the official copy for the record to read August 31, 2017. The corrected date was in Haun's favor regarding timeliness, as it gave him an extra day to file his notice of appeal. As discussed infra, however, the notice of appeal was several weeks late; thus, the potential error of a single day in the clerk's stamped file date does not change the outcome.
I. BACKGROUND
Haun is an inmate currently serving a twenty-year sentence for murder with the Kentucky Department of Corrections. On August 21, 2015, Haun filed a petition for a declaration of rights against Department of Corrections employees, including Commissioner LaDonna Thompson, as well as an employee working for Correct Care Solutions, an independent contractor providing medical care to inmates on behalf of the Department of Corrections. For the sake of this appeal, we refer to these respondents collectively as "the DOC." Briefly stated, Haun's petition centered around access to prescription non-steroidal anti-inflammatory drugs (NSAIDs) for his chronic arthritis. Haun alleged he had received prescription-strength naproxen from his previous institutional physician, Dr. Kevin Younger, before being transferred to Green River Correctional Complex. However, the DOC at Green River declined to continue prescribing the medication, and instead directed him to purchase his own over-the-counter NSAIDs from the prison canteen.
By denying his access to prescription pain relief, Haun's petition alleged the DOC had violated Corrections Policies and Procedures (CPP) 13.2 and CPP 13.3. CPP 13.2(II)(K)(2) states "[a]n inmate shall be directed to [the canteen] for a purchase for a problem that has a hygienic basis, is used to improve appearance, or to treat a minor health problem." CPP 13.3(II) states, in part, that "[i]nmates with chronic health problems shall be afforded care according to the individual treatment plan established by the institutional physician." Based on these two principles, Haun contended the DOC had inappropriately sent him to the canteen for treatment of his chronic health problem. Haun alleged the DOC's actions showed a deliberate indifference to the CPP regulations and violated his due process rights under the Fourteenth Amendment to the United States Constitution. Furthermore, Haun alleged the DOC falsified or forged his medical records "in a blatant attempt to cover up or justify the the [sic] complete disregard to adhere to policy and deliberate indifference both in the negligence and malpractice in health care." As relief, Haun asked for reinstatement of Dr. Younger's prescribed pain medication and a total of $1000 for compensatory damages, court costs, postage, copy fees and punitive damages.
Haun's petition took a procedural detour before arriving in Franklin Circuit Court. Because Haun had alleged a violation of his rights under the United States Constitution, the petition was briefly removed to the United States District Court for the Eastern District of Kentucky. Haun subsequently amended his petition, removing references to a violation of his rights under federal law and substituting claims alleging negligence. He then successfully moved the District Court to return his case to the Kentucky courts.
When Haun's case arrived in Franklin Circuit Court, the DOC moved to dismiss the amended petition. In its order entered August 31, 2017, the circuit court granted the motion, finding as follows: Haun's petition for declaratory relief was rendered moot by his transfer from Green River to Luther Luckett Correctional Complex; his negligence claims could not be heard in circuit court, because the Kentucky Board of Claims has exclusive jurisdiction in such suits against the Commonwealth; and Haun's claims of forgery, which the court interpreted as fraud, were barred for Haun's failure to demonstrate he had exhausted his administrative remedies. This appeal follows.
II. ANALYSIS
Haun's pro se brief contains broad assertions of error against the circuit court's order dismissing his amended petition. Before we may consider Haun's arguments, however, we must be certain the appeal is properly before us. As reflected in the record, Haun did not file his notice of appeal until October 27, 2017, which presents a significant question as to timeliness under the Kentucky Rules of Civil Procedure. If a notice of appeal is untimely, we cannot consider the merits of the appeal. "The failure of a party to file timely a notice of appeal, cross-appeal, or motion for discretionary review shall result in a dismissal or denial." Willis v. Willis, 361 S.W.3d 341, 342 (Ky. App. 2012) (quoting CR 73.02(2)).
Our civil rules require a notice of appeal to be filed "within 30 days after the date of notation of service of the judgment or order[.]" CR 73.02(1)(a). Furthermore,
[i]f an appeal or cross-appeal is from an order or judgment of the circuit court, the filing fee required by Rule 76.42(2)(a)(i) or (ii) shall be paid to the clerk of the circuit court at the time the notice of appeal or cross-appeal is tendered, and the notice shall not be docketed or noted as filed until such payment is made. Motions to proceed in forma pauperis on such an appeal or cross-appeal must be addressed to the circuit court. If timely tendered and accompanied by a motion to proceed in forma pauperis supported by an affidavit, a notice of appeal or cross-appeal shall be considered timely but shall not be filed until the motion to proceed in forma pauperis is granted or, if denied, the filing fee is paid. . . .CR 73.02(1)(b) (emphasis added). The circuit court entered its order on August 31, 2017. Haun would ordinarily have thirty days from that date to file his notice of appeal or, in other words, until September 30, 2017. However, that day fell upon a Saturday. CR 6.01 provides, in pertinent part, that "[i]n computing any period of time prescribed or allowed by these rules . . . [t]he last day of the period so computed is to be included, unless it is a Saturday, a Sunday or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday or a legal holiday." Therefore, according to our rules of civil procedure, Haun had until Monday, October 2, 2017, to file his notice of appeal from the circuit court's order.
Haun asserts he sent his notice of appeal to the circuit clerk by first-class mail on September 11, 2017. However, the record indicates the circuit clerk did not receive Haun's completed motion to proceed in forma pauperis with supporting documentation until October 16, 2017. The circuit court entered its order permitting Haun to file in forma pauperis on October 27, 2017, thus explaining how Haun's notice of appeal was entered on October 27, 2017, several weeks past the deadline.
CR 73.02(1)(b), supra, specifies a notice of appeal may be considered "[i]f timely tendered and accompanied by a motion to proceed in forma pauperis supported by an affidavit[.]" The record indicates the circuit clerk did not receive these items until October 16, 2017. Unfortunately, this was still two weeks after October 2, 2017, the latest date upon which Haun could submit a timely notice of appeal. "The time for filing a notice of appeal pursuant to CR 73.02 is both mandatory and subject to strict compliance." Willis, 361 S.W.3d at 342.
Based on the civil rules and our case law, there is no option but to consider Haun's notice as untimely. The prison mailbox rule, Kentucky Rule of Criminal Procedure (RCr) 12.04(5), is of no avail because "[an inmate's] petition for declaration of rights is a civil action, not a criminal one[,]" Anglin v. Justice & Public Safety Cabinet, 480 S.W.3d 291, 293 (Ky. App. 2015), and the prison mailbox rule does not apply to civil actions. Id. Additionally, there was nothing improper about the circuit clerk's actions; she acted appropriately in not filing the tendered notice of appeal until she had received all items required by CR 73.02. See Excel Energy, Inc. v. Commonwealth Institutional Securities, Inc., 37 S.W.3d 713, 716 (Ky. 2000) (holding the circuit clerk did not err in refusing to file a notice of appeal without a filing fee); see also Bruner v. Sullivan University System, Inc., 544 S.W.3d 669, 672 (Ky. App. 2018) (holding the circuit clerk's refusal to accept a notice of appeal for lack of a filing fee, as in Excel, will result in dismissal of an appeal as untimely). Although the case sub judice involves an in forma pauperis motion instead of a filing fee, the same reasoning applies. CR 73.02(1)(b) requires the circuit clerk's timely receipt of the in forma pauperis motion and its supporting affidavit along with the notice of appeal. Any appeal, including this one, which fails to comply with the rule "will be subject to automatic dismissal as untimely." Bruner, 544 S.W.3d at 672 (emphasis in original).
"If an inmate files a notice of appeal in a criminal case, the notice shall be considered filed if its envelope is officially marked as having been deposited in the institution's internal mail system on or before the last day for filing with sufficient First Class postage prepaid." --------
III. ORDER
Because Haun's notice of appeal with accompanying motion to proceed in forma pauperis and supporting documentation were tendered more than thirty (30) days from the date of entry of the circuit court's order, we conclude Haun's notice of appeal was untimely filed. Therefore, the Court ORDERS the appeal be, and it is hereby, DISMISSED.
ALL CONCUR. ENTERED: November 30, 2018
/s/ Irv Maze
JUDGE, COURT OF APPEALS BRIEF FOR APPELLANT: Leslie Haun, pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Richard D. Lilly
Department of Corrections
Office of Legal Services
Frankfort, Kentucky