Smith v. Pryor

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NOT DESIGNATED FOR PUBLICATION

No. 117,387

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DAVID SMITH,
Appellant,

v.

REX PRYOR, Warden,
Appellee.


MEMORANDUM OPINION

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed December
15, 2017. Affirmed.

Michael G. Highland, of Bonner Springs, for appellant.

Sherri Price, legal counsel, Lansing Correctional Facility, and Richard M. Acosta and Roger W.
Slead, of Horn, Aylward & Bandy, LLC, of Kansas City, Missouri, for appellee.

Before BUSER, P.J., BRUNS, J., and STUTZMAN, S.J.

PER CURIAM: David Smith filed a K.S.A. 60-1501 petition alleging officials at
Lansing Correctional Facility (Lansing) acted with deliberate indifference to his medical
needs, then retaliated against him for his pursuit of administrative and legal remedies
concerning his medical care and treatment. The district court granted a motion to dismiss.
We find no error and affirm.


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FACTS AND PROCEDURAL BACKGROUND

Smith is an inmate at Lansing. In March 2015, he filed a pro se petition in the
Leavenworth District Court naming two individuals and two corporate entities as
defendants and alleging they had denied him adequate medical care and treatment for his
diagnosed diabetes disease and his heart. Smith asserted that his diabetes caused extreme
pain and swelling in his lower legs, making it difficult for him to move, and the prison
doctor refused to send him to a specialist concerning the lack of circulation in his legs.
Smith further alleged the prison denied his requests for special diabetic shoes or a
wheelchair, even when his condition rendered him unable to walk to get his meals.

With respect to his meals, Smith stated he had been on a diabetic diet, but at
mealtime he was served a "C.V. tray" for those with cardiovascular conditions, rather
than a meal prepared for a person with diabetes. Smith claimed he was told to accept the
offered meal or not eat, and he alleged the food service contractor's supervisor told him
the meals for diabetics and the meals for those with cardiovascular issues were similar,
but the diabetic meal had smaller portions.

Smith also complained of issues with his heart and alleged the doctor at Lansing
did not follow through on a recommendation from the medical staff at the El Dorado
Correctional Facility that an electrocardiogram (EKG) be done. Smith contended these
actions at Lansing constituted cruel and unusual punishment prohibited by the Eighth
Amendment because the prison acted with deliberate indifference towards his serious
medical needs.

In late July 2015, the parties appeared before the court, and Smith clarified to the
district judge that he had intended his case to be an action for habeas corpus relief under
K.S.A. 60-1501, rather than a civil suit against the named individual and corporate
defendants. The district court then dismissed the individuals and designated Rex Pryor, in
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his capacity as the warden of Lansing having Smith in his custody (Warden), as the
named respondent to Smith's petition.

The Warden then responded to Smith's petition with a motion to dismiss on the
basis that Smith failed to provide proof he had exhausted his administrative remedies.
Smith replied, this time through appointed counsel, and provided attachments chronicling
his efforts to resolve his complaints within the administrative system. Each grievance was
denied, and the denials were upheld on appeal.

Smith then amended his petition to include a claim that he was the target of
retaliatory actions because of his efforts to gain the medical care he considered necessary.
He claimed his cell was searched twice for no good reason and two homemade weapons
found during the second search were planted. Smith said he had no need for weapons as
he only leaves his cell for meals, he was not involved in any activities that would require
a weapon, and he did not have any enemies in the prison. Smith also alleged he was
moved from medium security to the maximum security facility after the searches, and
when he picked up his property two weeks after that move he found his typewriter,
typewriter ribbons, and other things that he needed to do his legal work were missing.

The Warden filed another response, arguing that even if Smith had exhausted his
administrative remedies, he failed to prove the prison acted with deliberate indifference
to his medical needs. In support, the Warden attached a number of exhibits detailing the
medical care the prison had provided to Smith. That response also asserted Smith failed
to show he had exhausted administrative remedies before making his claim for retaliation
and lost property.

The district court heard statements from counsel and the defendant at a short
hearing, and the parties agreed to submit the issues for decision on the briefs. The court
later filed a memorandum decision which noted that additional written arguments and
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documents submitted after the hearing had been considered along with those available
when the parties were in court. The district court granted the Warden's motion to dismiss.
The court found Smith had exhausted his administrative remedies with respect to his
medical claims, but he did not sustain his burden of proof on those claims. The court
further found that Smith received treatment multiple times for his various medical needs
but also that he had rejected multiple attempts by the prison to provide treatment.
Additionally, the court found Smith had not exhausted administrative remedies for his
retaliation claims and, in any case, had failed to provide sufficient evidence to sustain his
burden of proof for the retaliation claim.

Smith timely appeals from the district court's dismissal.

ANALYSIS

Smith raises two issues for our review: (1) error by the district court in finding he
was not subject to cruel and unusual punishment; and (2) error by the district court in
rejecting his claim that the prison retaliated because he exercised his constitutional rights
with respect to his medical care.

Cruel and unusual punishment

An appellate court reviews a district court's decision on a K.S.A. 60-1501 petition
to determine whether the district court's factual findings are supported by substantial
competent evidence and are sufficient to support the court's conclusions of law. The
district court's conclusions of law are subject to de novo review. Rice v. State, 278 Kan.
309, 320, 95 P.3d 994 (2004).

Smith claims the district court erroneously found he had failed to prove deliberate
indifference towards his medical needs. Prisoners in Kansas have a right to adequate
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medical care and treatment. Levier v. State, 209 Kan. 442, Syl. ¶ 2, 497 P.2d 265 (1972).
Deliberate indifference by prison officials towards an inmate's serious medical needs
violates the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50
L. Ed. 2d 251 (1976). This court has explained that "[d]eliberate indifference involves
both an objective and a subjective component." Darnell v. Simmons, 30 Kan. App. 2d
778, 781, 48 P.3d 1278 (2002). The objective component is satisfied if the deprivation is
"'sufficiently serious.'" 30 Kan. App. 2d at 781 (quoting Farmer v. Brennan, 511 U.S.
825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 84 [1994]). "A medical need is sufficiently
serious if treatment has been diagnosed for it or if the need is so obvious that a lay person
would recognize the need." Laubach v. Roberts, 32 Kan. App. 2d 863, 872, 90 P.3d 961
(2004). "The subjective component is met if a prison official 'knows of and disregards an
excessive risk to inmate health or safety.'" Darnell, 30 Kan. App. 2d at 781 (quoting
Farmer, 511 U.S. at 837).

Here, the objective component of the deliberate indifference test is undisputed.
Smith has diabetes, which is a sufficiently serious diagnosed medical need that treatment
was prescribed for it. The contested issue is the district court's conclusion that the
evidence Smith provided was insufficient to meet the subjective component of the test.
Smith's evidence on this point consisted of his allegations that the prison failed to provide
him with special shoes and a wheelchair, failed to arrange an evaluation of his heart
through an EKG performed by a medical professional outside the prison system, and
failed to provide him with meals specifically prepared for a diabetic diet.

Many of Smith's complaints were addressed by the prison. After Smith filed his
petition, the record shows the prison provided him with diabetic shoes and a wheelchair,
which was acknowledged by Smith's counsel at the March 2016 hearing. Smith also
complained that the prison refused to send him for an EKG. However, prison records
provided to the district court show a history of Smith refusing medical care and
treatment. Those records included documentation that in April 2014, Smith refused
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treatment in the form of lab work, with the explanation that "I don't need it Dr. said my
heart was fine," and in July 2015 prison records documented Smith's refusal of a routine
EKG.

Smith alleged the prison's food service contractor failed to offer him prescribed
1,800 calorie meals for his diabetic condition, forcing him to choose between a CV meal
or a regular meal. A response from the food service manager to Smith's November 2014
grievance disputed Smith's claim, asserting that "[d]iabetic trays are offered at every
meal." The manager commented that "[t]he diabetic 1800 and CV tray are normally very
similar. The most common difference is smaller portions on the diabetic 1800 tray."
Among Smith's documented treatment refusals in the record is one from December 2014,
stating Smith "does not want diabetic diet." The reported explanation for the refusal was
"does not want the diabetic diet states it's no different than the regular and will try to
regulate his own diet and stay around 1800 cal." A similar instance was recorded earlier,
in March 2014, noting Smith "[r]efuses diabetic diet."

The record shows prison officials did not ignore or fail to treat Smith's medical
condition. Smith had a number of consultations with doctors in the past few years. Smith
had a physical examination in October 2012 in which his poor circulation and potential
for diabetes were noted. Medical officials discussed diabetic management and education
with Smith. In January 2013, officials noted a complication with Smith's diabetes caused
by his failure to adhere to his diet. In May 2013, Smith's doctor noted that Smith was in a
prediabetic state and recommended that Smith exercise and lose weight. In 2014, Smith
began refusing chronic care treatment for his diabetes, "including refusing to maintain a
diabetic diet, show up for scheduled chronic care evaluations, refusal of blood work, and
refusing treatment with diabetic medication."

Smith received the diabetic shoes and wheelchair he contends he needed and was
offered frequent medical consultations, although the record also shows a history of
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noncompliance with medically recommended care and treatment. Based on the record,
we find no support for Smith's claim that prison officials knew of an excessive risk to
Smith's health or safety and disregarded it. The district court's findings were supported by
substantial competent evidence, and the court's conclusion that Smith failed to prove
deliberate indifference is amply supported by the record. Smith failed to support his claim
on the subjective component of the test, and the district court did not err in rejecting it.

Retaliation

Smith's other issue relates to the retaliation claim he added as an amendment to his
petition, asserting the prison authorities had unlawfully retaliated against him for
exercising his constitutional right to challenge the health care offered to him. The district
court held that Smith did not exhaust his administrative remedies for this claim and, even
if he had, the evidence Smith offered was insufficient to meet his burden of proof.

Engaging in the administrative remedy process is a statutory requirement:

"Any inmate in the custody of the secretary of corrections or in a county jail,
prior to filing any civil action naming 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 of the department of corrections or the county, while such employee is
engaged in the performance of such employee's duty, as the defendant pursuant to the
rules of civil procedure, shall have exhausted such inmate's administrative remedies,
established by rules and regulations promulgated by the secretary of corrections or by
county resolutions, concerning such civil action. Upon filing a petition in a civil action,
such inmate shall file with such petition proof that the administrative remedies have been
exhausted." K.S.A. 75-52,138.

Whether a party was required to or has failed to exhaust administrative remedies
presents a question of law subject to unlimited review. In re Habeas Corpus Application
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of Pierpoint, 271 Kan. 620, 622-23, 24 P.3d 128 (2001). "[B]efore conditions of
confinement may be reviewed in a habeas corpus proceeding, available administrative
remedies must be exhausted." 271 Kan. at 622. However, "[e]xhaustion of administrative
remedies is not required when administrative remedies are inadequate or would serve no
purpose." 271 Kan. 622, Syl. ¶ 2.

Smith tacitly admits he did not exhaust his administrative remedies before adding
his retaliation claim to his petition in the district court. The district court specifically
found no evidence was presented to show Smith tried to address his retaliation claim
through the grievance process or other administrative remedy. Smith argues, however,
that he was not required to exhaust administrative remedies because doing so would have
been futile. Since he is alleging retaliation by the Warden and prison staff for filing
grievances regarding his medical care, Smith contends pursuing the grievance process to
remedy a claim of retaliation "would only antagonize and invite further retaliation . . . ."

The record shows Smith filed his first grievance related to medical care in August
2013 and his last in November 2014. The searches of Smith's cell and his transfer to
maximum security—the events he characterizes as retaliatory—did not occur until
September 2015. The timing of those events, almost a year after Smith filed his final
grievance, does not support a conclusion of retaliation. See Matson v. State, No. 114,001,
2016 WL 4584824, at *4 (Kan. App. 2016) (unpublished opinion) (holding that there was
no temporal basis to support a retaliation claim when the alleged retaliation occurred five
months after an inmate filed grievances), rev. denied 306 Kan. ___ (2017). Even
accepting Smith's theory of deferred retaliation, the contraband weapons Smith stated
guards found on the second search of his cell, which he alleges were planted there,
constituted a legitimate reason for transferring him. Further, Smith presented no basis to
suggest his grievances over medical care and treatment generated a negative response.
Smith received or was offered medical care for his diabetes and heart concerns, and he
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received the shoes and wheelchair he had requested. Smith's claim for a futility exception
to the administrative remedy requirement is not supported by the evidence.

The district court's finding that Smith failed to pursue administrative remedies was
supported by competent evidence, and by Smith's own argument, and the district court's
conclusion that Smith presented insufficient evidence to carry a retaliation claim was also
supported in the record.

Conclusion

We find no error by the district court in the dismissal of Smith's K.S.A. 60-1501
petition.

Affirmed.