Pittman v. Bliss

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NOT DESIGNATED FOR PUBLICATION

No. 113,577

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CRAIG PITTMAN,
Appellant,

v.

ANITA BLISS,
Appellee.


MEMORANDUM OPINION

Appeal from Labette District Court; ROBERT J. FLEMING, judge. Opinion filed December 18,
2015. Affirmed.

Craig Pittman, pro se appellant.

Marcos A. Barbosa, of Baker Sterchi Cowden & Rice, LLC, of Kansas City, Missouri, for
appellee.

Before SCHROEDER, P.J., PIERRON, J., and HEBERT, S.J.

Per Curiam: Craig Pittman appeals the denial of his claim for personal injury
alleging he was kicked by Anita Bliss, his supervisor and an employee of Aramark
Correctional Services LLC. The district court denied his claim for relief based on his
failure to exhaust administrative remedies. Our review of the record reflects the district
court did not err in finding Pittman failed to timely file a claim for personal injury.
Additionally, we note that in processing this appeal, Pittman violated Supreme Court
Rule 6.02(a)(4) and (a)(5) (2015 Kan. Ct. R. Annot. 41) by failing to cite to the record in
support of his claim of error. We affirm.
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FACTS

On October 21, 2013, Pittman, an inmate at the Oswego Correctional Facility
(OCF), sued Anita Bliss, "in her individual capacity, and under the corporate umbrella of,
Aramark Correctional Services, LLC. [Aramark]," to recover damages of $25,000 for
assault and battery. In his pro se petition, Pittman alleged that while he was carrying out
his responsibilities as a cook for Aramark on April 9, 2013, Bliss, his supervisor,
intentionally "kicked [him] in his rearend [sic] (butt)." Pittman indicated that "[a]fter the
assault, [he] called #50 [a hotline for complaints and grievances], with-in [sic] the
jurisdiction of, [the Kansas] Department of Corrections [KDOC]."

Bliss subsequently moved to dismiss Pittman's petition for failing to properly
exhaust his administrative remedies, as required by K.S.A. 75-52,138 and K.A.R. 44-16-
104a, because he did not file any "accompanying attachments as conclusive proof" he
complied with this requirement. Relying on Redford v. State ex rel. Dept. of Corrections,
No. 106,787, 2013 WL 781102 (Kan. App. 2013) (unpublished opinion), Bliss contended
that although Pittman sued her in her individual capacity and as an employee of Aramark,
the exhaustion requirement is not "solely reserved for cases brought against the State."
Bliss contended that inmates must exhaust administrative remedies when attempting to
sue private contractors, such as Aramark, who perform an essential function for the
KDOC because the State "must provide a certain level of security, medical services and
food to the inmates, [and, thus,] [w]hen . . . Pittman alleges a personal injury caused by
his interactions with an [Aramark] employee while incarcerated, he is in fact alleging that
he was harmed while in the [K]DOC's custody."

Pittman disputed Bliss' contention that the exhaustion requirement applied to
KDOC contractors. He alleged that he was not required to pursue administrative remedies
prior to filing his civil lawsuit because such remedies were inadequate to address his
personal injury claim. Nevertheless, Pittman maintained he properly exhausted his
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administrative remedies and had inadvertently neglected to attach proof of such
exhaustion to his petition. Accordingly, Pittman provided the district court with several
documents, which he alleged satisfied the exhaustion requirement.

First, Pittman noted that he "notified prison officials of the battery committed by
[Bliss] through the prison[']s Tips Hotline by dialing 'pound 50' 1 days [sic] after the
battery. [Citation omitted.]" Second, Pittman provided the district court with a letter he
received from James Heimgartner, the warden at the El Dorado Correctional Facility
(EDCF), regarding an "Emergency Grievance" he filed, which reads as follows:

"Your 'Emergency' grievance dated April 17, 2013, was received in my office on April
23, 2013.
"Per 44-15-106 Emergency Procedure, Emergency Grievances shall mean those
grievances for which disposition according to the regular time limits would subject the
inmate to a substantial risk of personal injury, or cause other serious and irreparable
harm to the inmate.
"It is determined that your complaint is not an emergency; it is being forwarded to CCII
K. Miller for the purpose of resolution."

Third, Pittman attached a KDOC inmate grievance form he completed on April 17, 2013,
in which he lodged a complaint against Bliss. Finally, Pittman attached a letter Douglas
W. Burris, a Corrections Manager for the EDCF, sent him on May 28, 2013, which states:

"I received correspondence which included a disciplinary appeal and letter that alleges
inappropriate behavior from an Aramark staff member.
"Your claims of inappropriate staff behavior will be reviewed by administrative staff.
"However, your full disciplinary report and appeal has already been addressed and
answered in full. It will not be revisited."

In response, Bliss contended that Pittman's attachments did not prove he properly
exhausted the administrative procedures governing personal injury claims because the
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evidence pertaining to his "'Emergency Grievance'" indicated KDOC staff did not receive
this complaint until April 23, 2013, which fell outside the 10-day window set forth in
K.A.R. 44-16-104a for initiating personal injury claims. Further, even if Pittman had
forwarded his grievance within 10 days, "'[t]he grievance procedure shall not be used in
any way as a substitute for, or as part of, the . . . personal injury claims procedure.'
[Citation omitted.]"

On August 18, 2014, the district court held a telephone conference with the
parties. At the conclusion of that conference, the district court instructed the parties to
provide the court with additional authority and supportive evidence addressing the
following:

"1. Whether or not the requirement as set forth by K.A.R. §44-16-104a requiring the
filing of claims within ten days applies to a private contractor, rather than an
employee of the [K]DOC;
"2. . . . [W]hether phone notification of a 'battery' complies with [the] K.A.R. §44-
16-104a notice requirement; and
"3. . . . [P]roof that [Pittman] personally handed the unit team a copy of his claim
form on April 17, 2013, as alleged by [Pittman]."

After reviewing the supplemental written authority provided by the parties, the
district court issued an order granting Bliss' motion to dismiss Pittman's lawsuit for
failure to properly exhaust his administrative remedies. In particular, the district judge
found that the administrative procedure set forth in K.A.R. 44-16-104a governs inmate
personal injury claims filed against the KDOC and its private contractors. While there
was no factual evidence to refute Pittman's claim he filed a grievance, the district court
found the administrative procedure for dealing with inmate personal injury claims is
separate and distinct from the procedure for handling grievances. One cannot be
substituted for the other. The district court explained:

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"[Pittman] claims that on April 10, 2013, the day following the incident
complained of, [he] contacted Sargent Lopez and informed him of the alleged battery by
[Bliss]. [Pittman] claims that he was informed that he could report the battery by dialing
#50 from the inmate telephone and that he did so. [Pittman] has produced Exhibit A, a
purported receipt acknowledging receipt of his grievance by CCI Philbrick dated 4-17-13.
It is attached hereto.
"There is no factual evidence to refute the [Pittman]'s assertions regarding notice
of his grievance. However, as noted above, there is a difference between a grievance and
a claim for personal injuries. A claim for personal injuries typically contains a summary
of the facts which gave rise to the injury; a detailed list of injuries and medical expenses;
a list of out-of-pocket expenses; a statement of the on-going pain, suffering and/or
emotional distress; supporting documents; and a monetary demand. It appears that
[Pittman] has not filed a claim for personal injuries, and his ten-day window for filing the
same has now lapsed."

Pittman timely appeals.

ANALYSIS

Failure to Exhaust Administrative Remedies

Before addressing the merits of Pittman's arguments, it is important to note
Pittman violated Kansas Supreme Court Rule 6.02(a)(4) and (a)(5) (2015 Kan. Ct. R.
Annot. 41) by failing to cite the record in support of any of the factual assertions he sets
forth in his brief. While appellate courts must liberally construe pro se pleadings to give
effect to the content rather than rely on the form or label of the pleading, Kansas courts
still hold pro se litigants to the same procedural and evidentiary rules as licensed
attorneys. In re Estate of Broderick, 34 Kan. App. 2d 695, 701, 125 P.3d 564 (2005),
cert. denied 555 U.S. 1178 (2009). Thus, this court finds Pittman's factual allegations
"made without a reference to volume and page number has no support in the record on
appeal." Supreme Court Rule 6.02(a)(4) (2015 Kan. Ct. R. Annot. 41).
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Furthermore, Pittman's statement of the issue to be decided on appeal does not
conform to the position he takes in the arguments and authorities section of his appellate
brief. In particular, Pittman describes the issue on appeal as: "Plaintiff requirement for
Exhaustion of Administrative Remedies does not apply to Private Contractors." Pittman
never discusses this issue; instead, he contends he sufficiently exhausted his
administrative remedies. Issues and points not briefed by the appellant or raised
incidentally in a brief and not argued therein are deemed waived and abandoned. See
Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 645, 294 P.3d 287 (2013);
Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011).
Moreover, failure to support a point with pertinent authority or show why it is sound
despite a lack of supporting authority or in the face of contrary authority is akin to failing
to brief the issue. State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013). Accordingly,
the only issue properly before this court is whether Pittman properly exhausted his
administrative remedies; a question of law over which this court's review is unlimited.
See In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, 622-23, 24 P.3d 128
(2001).

The doctrine of exhaustion of administrative remedies dictates an administrative
remedy, provided by law, "'must be sought and completed before courts will act.'
[Citation omitted.]" Sandlin v. Roche Laboratories, Inc., 268 Kan. 79, 86, 991 P.2d 883
(1999). Kansas law requires inmates to exhaust "administrative remedies, established by
rules and regulations promulgated by the secretary of corrections" prior to bringing a civil
action against "the state of Kansas, any political subdivision of the state of Kansas, any
public official, the secretary of corrections, the warden, the sheriff, or an employee . . .
while such employee is engaged in the performance of such employee's duty." K.S.A. 75-
52,138. The administrative procedure for dealing with inmate personal injury claims is
separate and distinct from the procedure for handling grievances. K.A.R. 44-15-
101a(d)(2) expressly provides: "The grievance procedure shall not be used in any way as
a substitute for, or as part of, the . . . property loss or personal injury claims procedure."
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Currently, the claims procedure for personal injury claims, governed by K.A.R. 44-16-
104a, necessitates the filing of a claim with the prison, "in accord with the department of
corrections' internal management policies and procedures," within 10 days of sustaining
the injury. "The exhaustion requirement set forth in K.S.A. 75-52,138 is a mandatory, but
nonjurisdictional, prerequisite to filing suit that must be strictly enforced by the court."
Chelf v. State, 46 Kan. App. 2d 522, Syl. ¶ 4, 263 P.3d 852 (2011). Accordingly, inmates
filing a civil action must file proof of proper administrative exhaustion with their petition.
K.S.A. 75-52,138.

Pittman claims he complied with K.S.A. 75-52,138 and K.A.R. 44-16-104a
because the day after the incident with Bliss, he filed a property damage/loss or personal
injury claim form with Sergeant Lopez, a former KDOC employee who, at the time,
served as the "property officer" for the OCF. However, according to Pittman he
subsequently discovered Sergeant Lopez "'lost or misplaced'" his form. After discovering
the form had been lost, Pittman had Robert A. Brill, a Unit Team Counselor for the
KDOC, notarize a new claim form on December 29, 2014—3 months after the district
court dismissed Pittman's petition. Pittman appended a copy of this form to his appellate
brief because, according to Pittman, the district judge "had ruled on the case before [he]
could send a copy of the claim" form to the district court.

Appellate courts will not consider items appended to an appellate brief, which
were never presented to the district court and are not found in the record. The appendix is
limited to containing extracts from the record on appeal for the court's convenience. It
cannot serve as a substitute for the record itself. Kansas Supreme Court Rule 6.02(b)
(2015 Kan. Ct. Rule Annot. 41); see Edwards v. Anderson Engineering, Inc., 284 Kan.
892, 895, 166 P.3d 1047 (2007); Romkes v. University of Kansas, 49 Kan. App. 2d 871,
886, 317 P.3d 124 (2014). "The burden is on the party making a claim to designate facts
in the record to support that claim; without such a record, the claim of error fails.
[Citation omitted.]" Romkes, 49 Kan. App. 2d at 886.
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Pittman's appeal fails because this court cannot consider the document he relied
upon, as it was only attached to his brief. By failing to designate facts in the record
supporting his claim, Pittman has abandoned his challenge to the district court's finding
that he failed to exhaust his administrative remedies in pursuing his claim against a
private KDOC contractor.

Affirmed.