Opinion
NO. 2017-CA-001247-MR
05-11-2018
FRANKLIN ROSS APPELLANT v. KATHY LITTERAL, WARDEN APPELLEE
BRIEFS FOR APPELLANT: Franklin Ross, pro se West Liberty, Kentucky BRIEF FOR APPELLEE: Angela Dunham Kentucky Justice & Public Safety Cabinet Office of Legal Services Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 16-CI-00739 OPINION
AFFIRMING
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BEFORE: DIXON, NICKELL, AND THOMPSON, JUDGES. THOMPSON, JUDGE: Franklin Ross, pro se, appeals the Franklin Circuit Court's July 3, 2017 order dismissing his petition for a declaration of rights. After careful review, we affirm.
On August 5, 2011, in Case No. 10-CR-00169, the Johnson Circuit Court entered a judgment on a plea of guilty sentencing Ross to serve a total of ten years on one count of assault in the first degree; one count of unlawful imprisonment in the first degree; one count of tampering with physical evidence; five counts of wanton endangerment in the first degree; one count of criminal mischief; and one count of possession of drug paraphernalia. The judgment and sentence ordered Ross to pay $7,016.91 in restitution, specifically noting that his offenses caused a victim to suffer serious physical injury. Ross did not appeal the circuit court's judgment. He was sent to Eastern Kentucky Correctional Complex (EKCC) to serve his sentence.
On May 5, 2015, Ross received a letter from the Crimes Victims Compensation Board (the Board). The letter notified Ross that the Board had awarded the victims $4,541.88 in expenses incurred as a result of his crime in 10-CR-00169, making him a debtor to the state under Kentucky Revised Statutes (KRS) 49.470. Attached to this correspondence was a form for Ross to agree to pay $10 a month on this debt, which he refused to sign. The record does not contain a court order or judgment permitting the Board to collect on this debt. Nonetheless, the Board subsequently sent a "Notice of Intercept" to EKCC. This correspondence explained Ross's alleged debt and stated by "operation of KRS 44.030(1), any money owed to the above inmate shall be intercepted in order to offset the debt owed to the state and forwarded to the Crime Victims Compensation Board." EKCC then began deducting money from Ross's inmate account and forwarding it to the Board.
The letter actually cited to KRS 346.180, which was renumbered as KRS 49.470 by 2017 Ky. Acts. Ch. 74 § 47 (effective June 29, 2017) (creating the Kentucky Claims Commission). Although KRS 346.180 was the statute in effect when this case was litigated before the trial court and briefed by the parties, this opinion cites exclusively to KRS 49.470 for simplicity.
Ross then completed an inmate grievance form, complaining EKCC violated the Kentucky Department of Corrections (KDOC) procedures by deducting money from his inmate account and forwarding it to the Board without a court order directing it to do so. In support of this argument, Ross cited Kentucky Department of Corrections Policy and Procedures (CPP) 15.7(II)(C), which states "restitution shall be deducted from an inmate's account as determined by court order" and directs the institution housing the inmate to forward the restitution "to the court for disbursement to the victim and their survivors or as dictated by the order." A grievance coordinator returned Ross's grievance form, stating his grievance concerned a "non-departmental issue" and was "non-grievable." No further explanation was provided. Ross did not seek further administrative relief.
Ross then filed a Declarations of Rights Action in the Franklin Circuit Court against Kathy Litteral, EKCC's warden, in her official and individual capacity. Ross sought a declaration that EKCC officials violated CPP 15.7, as well as his rights to equal protection under the 14th Amendment of the United States Constitution and Section 2 of the Kentucky Constitution, by forwarding funds from his inmate account to the Board without a court order directing EKCC to do so. He also argued EKCC violated his rights under the 1st and 14th Amendments of the United States Constitution when it returned his grievance form as non-grievable. He contended that use of the inmate grievance procedure would have compelled a finding that EKCC's actions violated CPP 15.7.
Ross's Declarations of Rights action also named as respondents KDOC; Ladonna H. Thompson, the Commissioner of KDOC; Sarah Potter, a grievance coordinator at EKCC; and Virginia L. Woodward, the Board's Executive Director. Because Litteral was the only party specified by name in Ross's notice of appeal, she is the only respondent over whom this Court has jurisdiction on appeal. See Browning v. Preece, 392 S.W.3d 388, 392 (Ky. 2013). --------
Litteral then moved to dismiss, arguing there was no basis for Ross to challenge EKCC's authority to deduct funds from his account because KRS 49.470(1) provides that any payment to a victim by the Board creates a debt due to the state by the person found to have committed the criminal act. Attached to this motion was Ross's inmate account statement, which showed that the money deducted from Ross's account was taken from his state-earned pay. Because KRS 44.030(1) prohibits the state from paying money to any person who is indebted to the state, Litteral argued EKCC complied with the applicable law when it deducted state-earned pay from Ross's inmate account to pay off the debt he owed the Board. Litteral also argued that Ross's citation to CPP 15.7 was unavailing because that rule governed court-ordered restitution and his grievance concerned a debt owed to the Board.
The circuit court granted the motion to dismiss, concluding KRS 44.030(1) required EKCC to remove funds from Ross's inmate account to pay the debt he owed the Board. Accordingly, it found Ross did not state a claim upon which relief could be granted because the allegations in his petition for a declaration of rights failed to show EKCC's actions violated state law, targeted a suspect class, or treated him differently than similarly situated inmates. This appeal follows.
Ross argues we must remand because the circuit court failed to consider his argument that EKCC violated his 1st and 14th Amendment rights when it prohibited him from pursuing KDOC's grievance procedures by categorizing his complaints as "non-grievable." Ross maintains use of the KDOC's grievance procedure would have compelled a finding that CPP 15.7 required EKCC to maintain the funds in his inmate account until it received an order from the Johnson Circuit Court directing it to deduct money from his inmate account to pay off the restitution ordered in 10-CR-00169. Ross also contends the circuit court acted as an attorney for the respondents by dismissing his petition for failure to state a claim upon which relief may be granted when Litteral's response did not explicitly move to dismiss on these grounds.
Inmates may file petitions for declaratory judgment pursuant to KRS 418.040 to seek review of their disputes with KDOC when habeas corpus proceedings are inappropriate. Smith v. O'Dea, 939 S.W.2d 353, 355 (Ky.App. 1997). Although original actions, inmate petitions are similar to appeals because they invoke the circuit court's authority to act as a court of review. Id. Therefore, such a petition should not be dismissed for failure to state a claim upon which relief can be granted "unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved[.]" Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (quoting Pari-Mutuel Clerks' Union of Kentucky, Local 541, SEIU, AFL-CIO v. Kentucky Jockey Club, 551 S.W.2d 801, 803 (Ky. 1977)). "[T]he pleadings should be liberally construed in the light most favorable to the plaintiff, all allegations being taken as true." Id. (quoting Morgan v. Bird, 289 S.W.3d 222, 226 (Ky.App. 2009)). Because a motion to dismiss for failure to state a claim is a question of law, an appellate court reviews the issue de novo. Id.
We must first address Ross's argument that the circuit court should have determined whether EKCC violated his rights when his grievance form was returned as non-grievable. CPP 14.6 set forth the grievance procedure for inmates confined at institutions operated by KDOC. Certain issues, such as non-departmental complaints, are considered non-grievable. CPP 14.6(II)(C). For grievable issues, a four-step administrative procedure is provided. CPP 14.6(II)(J). Ross did not attempt to pursue further administrative remedies after his grievance form was returned. If Ross was entitled to additional grievance procedures challenging EKCC's alleged violation of CPP 15.7, then the circuit court should have dismissed his petition for failure to exhaust his administrative remedies. Houston v. Fletcher, 193 S.W.3d 276, 278 (Ky.App. 2006). Accordingly, we hold the circuit court did not err by reviewing his declaration of rights action on the merits without determining whether the grievance coordinator correctly categorized his complaints as non-grievable under CPP 14.6(II)(C). We now turn to his argument that EKCC violated CPP 15.7 and his equal protection rights when it deducted money from his inmate account and forwarded it to the Board.
Under CPP 15.7(II)(C)(emphasis added), "[c]ourt ordered restitution shall be deducted from an inmate's account as determined by court order." If the court order directs the institution to collect victim restitution from the inmate, the institution "shall collect the money and forward it to the court for disbursement to the victim and their survivors or as dictated by the order." Ross relies on this language to argue EKCC should not have deducted funds from his account to pay the Board absent an order from the Johnson Circuit Court. Unfortunately for Ross, CPP 15.7(II)(C) addresses restitution, which is defined as "any form of compensation paid by a convicted person to a victim for counseling, medical expenses, lost wages due to injury, or property damage and other expenses suffered by a victim because of a criminal act[.]" KRS 532.350(1)(a) (emphasis added). This case does not concern money Ross paid directly to the victim, but funds taken to pay a debt owed to the Board.
The Board was created to indemnify needy victims of criminal acts who might otherwise incur financial hardship and become dependent on public aid. KRS 49.270. Therefore, the Board has the authority to pay claims for certain expenses made necessary by the victim's injury. KRS 49.370(3). Any award made to the victim must be reduced by the amount the victim received from insurance, public funds, or from or on behalf of the person who committed the crime. KRS 49.390(1). Payment of benefits to a victim by the Board "creates a debt due and owing to the state by any person found to have committed such criminal act in either a civil or criminal court proceeding in which he is a party." KRS 49.470(1).
In this case, the entire $7,016.91 that Ross owed in restitution was not to be taken from his inmate account. Rather, the Board paid his victim $4,541.88 for out-of-pocket expenses the victim incurred, which were not paid by Ross or covered by insurance or other available public funds. Thus, this case does not deal with restitution but debt owed to the state under KRS 49.470(1). CPP 15.7(II)(C) does not dictate how funds are to be deducted from an inmate's account to pay a debt owed to the state. Compare with CPP 15.7(II)(D), (addressing the procedure for the payment of restitution or debt to the prison). To the extent EKCC's action deprived Ross of his state-earned pay, EKCC was prohibited from paying Ross funds while he owed a debt to the state under KRS 44.030(1), which provides "[n]o money shall be paid to any person on a claim against the state in his or her own right, or as an assignee of another, when the person or the person's assignor is indebted to the state or any local government." Accordingly, the facts in Ross's petition failed to support a violation of CPP 15.7 or applicable statute by EKCC.
By failing to allege facts showing EKCC violated any law or regulation, Ross's equal protections claims must fail as well. "Citizens of Kentucky are entitled to equal protection of the law under the 14th Amendment of the United States Constitution and Sections 1, 2, and 3 of the Kentucky Constitution." D.F. v. Codell, 127 S.W.3d 571, 575 (Ky. 2003). It is an equal-protection violation for the government "to treat similarly situated individuals differently without any justification." Roberts v. Mooneyhan, 902 S.W.2d 842, 843 (Ky.App. 1995).
Ross's petition alleged he was denied equal protection because "not all inmates incarcerated in KDOC facilities, who have been ordered to pay restitution per final sentencing have been subject to the unauthorized withdrawal of funds from their accounts." As stated previously, this case does not involve restitution withdrawn from an inmate account. Ross did not allege other inmates who owed a debt to the Board were treated differently. Accordingly, we hold the circuit court did not err by finding Ross's petition for a declaration of rights, as grounded in an equal protection argument, failed to state a claim upon which relief can be granted.
We also find no merit in Ross's argument that the circuit court acted as an attorney for the respondents when it dismissed his petition for failure to state a claim upon which relief could be granted. Under Kentucky Rules of Civil Procedure (CR) 12.02, "(f) failure to state a claim upon which relief can be granted" is one of seven defenses which "may at the option of the pleader be made by motion[.]" Motions to dismiss for failure to state a claim are typical responses to inmate declaratory judgment petitions. Smith, 939 S.W.2d at 355 n.1. However, a trial court should refrain from dismissing a complaint for failure to state a claim upon which relief can be granted unless it is brought to the inmate's attention by pleading or a motion to dismiss. Gall v. Scroggy, 725 S.W.2d 867, 869 (Ky.App. 1987).
In this case, Litteral's motion to dismiss did not use the language "failure to state a claim upon which relief can be granted" or even reference CR 12.02(f). However, it did argue Ross's petition should be dismissed because EKCC complied with the statutes relating to debts owed to the Board. This made it clear that Litteral was moving to dismiss because Ross failed to allege a violation of his rights. Ross did not argue he would have responded differently had Litteral been more explicit on the grounds she was relying upon in her motion to dismiss. Therefore, the circuit court did not abuse its discretion when it dismissed Ross's petition for failure to state a claim upon which relief can be granted.
Although we conclude Ross's petition for a declaration of rights failed to state a claim against EKCC, we are not ruling on his allegation that the Board is collecting on a debt without a valid order permitting it do so. If Ross has a good faith belief the Board is violating Kentucky law, he is free to file an action challenging its collection activities. However, we take no position on the merits of such an action.
We also note that Ross's allegations are more akin to a due process violation than an equal protection issue. Because his petition for a declaration of rights did not make a due process claim, the merit of such an argument under the facts of this case is not appropriately before the Court. See Shelton v. Commonwealth, 992 S.W.2d 849, 852 (Ky.App. 1998) ("An appellate court will not consider a theory unless it has been raised before the trial court and that court has been given an opportunity to consider the merits of the theory.") However, this Court has held that due process does not require a court order before a jail can deduct funds from a prisoner's account to recover expenses the prisoner owed the jail under KRS 441.265(1). Cole v. Warren County, 495 S.W.3d 712, 719 (Ky.App. 2015). We express no opinion whether the facts of this case would compel the same outcome.
For the foregoing reasons, the order of the Franklin Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Franklin Ross, pro se
West Liberty, Kentucky BRIEF FOR APPELLEE: Angela Dunham
Kentucky Justice & Public Safety
Cabinet
Office of Legal Services
Frankfort, Kentucky