Strope v. Burris

1

NOT DESIGNATED FOR PUBLICATION

No. 118,225

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

MICHAEL L. STROPE,
Appellant,

v.

DOUG BURRIS, JAMES HEIMGARTNER, J. PERKINS,
CINDY VAN PAY, TARA LAFORCE, and SHERRY MARTELL,
Appellees.


MEMORANDUM OPINION

Appeal from Shawnee District Court; LARRY D. HENDRICKS, judge. Opinion filed April 13, 2018.
Affirmed.

Michael Strope, appellant pro se.

Fred W. Phelps, Jr., legal counsel, Kansas Department of Corrections, for appellees Doug Burris,
James Heimgartner, J. Perkins, Cindy Van Pay, and Tara R. LaForce.

Richard M. Acosta and Roger W. Slead, of Horn Aylward & Bandy, LLC, of Kansas City,
Missouri, for appellee Sherry Martell.

Before ARNOLD-BURGER, C.J., MALONE and MCANANY, JJ.

PER CURIAM: Michael L. Strope, an inmate at the El Dorado Correctional Facility
(EDCF), appeals the district court's dismissal of his 42 U.S.C. § 1983 petition filed in
state court. In that petition, Strope claimed that prison officials violated his rights under
the First, Eighth, and Fourteenth Amendments to the United States Constitution. Finding
that all of Strope's claims failed to state a claim upon which relief could be granted under
2

K.S.A. 2017 Supp. 60-212(b)(6), the district court dismissed Strope's petition in its
entirety. For the reasons stated herein, we affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On October 3, 2016, Strope filed a "Civil Rights Complaint" in the District Court
of Shawnee County, Kansas, claiming that EDCF officials violated his constitutional
rights. According to his petition, he filed it "per 42 U.S.C. 1983 and The Kansas Bill of
Rights." However, throughout his petition, Strope only mentions the federal Constitution.

Strope's petition is rather long and often repetitive. He basically alleged that prison
officials retaliated against him for filing grievances, denied him appropriate medical
restrictions and treatments, and treated him more harshly than other inmates. From these
allegations, Strope claimed that prison officials violated his First, Eighth, and Fourteenth
Amendment rights. Strope also claimed that he had exhausted all his administrative
remedies, attaching numerous exhibits in an attempt to prove as much. The specific
prison officials Strope claimed violated his civil rights are as follows: Douglas Burris,
secretary designee; James Heimgartner, warden of EDCF; J. Perkins, employee of EDCF;
Cindy Van Pay, employee of EDCF; Tara LaForce, employee of EDCF; Gordon Harrod,
a medical provider for EDCF; and Sherry Martell, a medical provider for EDCF
(collectively, defendants). Strope stated that he was suing the defendants in their
"individual and official capacity and under color of state law."

On May 2, 2017, Burris, Heimgartner, Perkins, Van Pay, and LaForce filed a
motion to dismiss Strope's petition. They asked the district court to dismiss on the
grounds that Strope's petition failed to comply with K.S.A. 2016 Supp. 60-208, by being
incoherent; that the court lacked both subject matter and personal jurisdiction under
K.S.A. 2016 Supp. 60-212(b)(1) and (b)(2), because Strope failed to exhaust his
administrative remedies; and that the petition failed to state a claim upon which relief
3

could be granted under K.S.A. 2016 Supp. 60-212(b)(6). They also claimed that qualified
immunity required dismissal of Strope's petition.

On May 26, 2017, Martell filed her own motion to dismiss Strope's petition. In
that motion, Martell first adopted all the arguments set forth in the motion to dismiss filed
by the other defendants. She went on to specifically argue that Strope failed to state a
claim upon which relief could be granted as to his First, Eighth, and Fourteenth
Amendment claims. All the defendants waived a hearing on their motions to dismiss, and
Strope neither waived nor asked for a hearing.

On July 21, 2017, the district court filed a 34-page memorandum decision and
order dismissing Strope's petition in its entirety. First, the district court found that
although Strope attached numerous exhibits to his petition, the defendants' motions to
dismiss were not converted to summary judgment motions, construing Strope's exhibits
as part of his pleadings. The district court then discussed the applicable law regarding
qualified immunity; the requirement that pleadings be short and plain under K.S.A. 2017
Supp. 60-208(a); failure to state a claim under K.S.A. 2017 Supp. 60-212(b)(6); and
subject matter and personal jurisdiction under K.S.A. 2017 Supp. 60-212(b)(1) and
(b)(2).

Next, the district court discussed whether Strope properly exhausted his
administrative remedies under K.S.A. 75-52,138. Although the district court questioned
whether Stope had exhausted his administrative remedies, the district court did not
dismiss Strope's petition on this ground. Instead, pursuant to K.S.A. 2017 Supp. 60-
212(b)(6), the district court ruled that Strope failed to state a First, Eighth, and Fourteenth
Amendment claim, and he also failed to state a claim for retaliation. Thus, the district
court dismissed Strope's petition in its entirety. Strope timely filed a notice of appeal.


4

ANALYSIS

On appeal, Strope claims the district court erred in dismissing his petition. Strope
initially contends that the district court erred when ruling without a hearing that he failed
to state a retaliation claim. Next, Strope claims that the district court erred by granting the
defendants' motions to dismiss for failure to state a claim regarding his First, Eighth, and
Fourteenth Amendment claims. Strope also claims that the district court incorrectly ruled
that he failed to exhaust his administrative remedies. Finally, Strope claims that K.A.R.
44-15-102 is unconstitutional because it limits a grievance to 10 pages.

The EDCF defendants, including Burris, Heimgartner, Perkins, Van Pay, and
LaForce, have filed an appellate brief asserting that Strope's "stated issues on appeal fail
to make a dent in the district court's rock solid written decision." These defendants
specifically argue that Strope was not entitled to a hearing and the district court did not
err in dismissing Strope's constitutional claims. Martell filed a separate brief and argues
that Strope failed to state a claim under the Eighth and Fourteenth Amendments and that
Strope also failed to state a claim of retaliation.

As a preliminary matter, we find that the district court correctly determined that
Strope's exhibits should be considered as part of his pleadings, and the district court
accurately determined that Strope's exhibits did not convert the motions to dismiss to
summary judgment motions. Generally, when matters outside the pleadings are presented
to and considered by the district court, the motion to dismiss must be treated as one for
summary judgment. See K.S.A. 2017 Supp. 60-212(d). However, "[a] copy of a written
instrument that is an exhibit to a pleading is a part of the pleading for all purposes."
K.S.A. 2017 Supp. 60-210(c). Because Strope's exhibits all related to his well-pleaded
facts and the defendants did not provide any exhibits, the defendants' motions to dismiss
were not effectively converted to summary judgment motions.

5

Whether a district court erred by granting a motion to dismiss for failure to state a
claim upon which relief can be granted, under K.S.A. 2017 Supp. 60-212(b)(6), is a
question of law subject to unlimited review. The appellate court will view the well-
pleaded facts in a light most favorable to the plaintiff and assume as true those facts and
any inferences reasonably drawn from them. If those facts and inferences state any claim
upon which relief can be granted, then dismissal is improper. Cohen v. Battaglia, 296
Kan. 542, 545-46, 293 P.3d 752 (2013). In addition, as Strope is a pro se plaintiff, this
court liberally construes his pleadings in favor of finding claims. See Bruner v. State, 277
Kan. 603, 605, 88 P.3d 214 (2004).

Turning to the governing legal principles, in 42 U.S.C. § 1983 (2012), the United
States Congress granted victims a method of vindication when their constitutional rights
are violated. Purvis v. Williams, 276 Kan. 182, 198, 73 P.3d 740 (2003). A plaintiff can
bring a claim under 42 U.S.C. § 1983 in state or federal court. Prager v. Kansas Dept. of
Revenue, 271 Kan. 1, 12, 20 P.3d 39 (2001). To state a valid claim under this provision, a
"petition must allege two essential elements: (1) whether the conduct complained of was
committed by a person acting under color of state law, and (2) whether this conduct
deprived a person of rights, privileges, or immunities secured by the Constitution or
federal law." Purvis, 276 Kan. at 198.

Although no party has raised this issue in their briefs, we will first address the fact
that Strope's exhibits substantially contradict many of his claims in his petition. As we
have previously stated, in ruling on a motion to dismiss based on the pleadings, a court
will view the well-pleaded facts in a light most favorable to the plaintiff and assume as
true those facts and any inferences reasonably drawn from them. But in a case like this
one where the plaintiff's own exhibits contradict many of the facts alleged in the petition,
we must determine whether the exhibits or the well-pleaded facts govern Strope's claims
for the purpose of a motion to dismiss.

6

In Sperry v. McKune, 305 Kan. 469, Syl. ¶ 2, 384 P.3d 1003 (2016), our Supreme
Court states: "Under K.S.A. 2015 Supp. 60-210(c), a written instrument attached as an
exhibit to a pleading is a part of the pleading for all purposes. Hence, documents attached
to a petition can be considered when ruling on a motion to dismiss under K.S.A. 2015
Supp. 60-212(b)(6)." The Sperry court ultimately found that because the defendants
attached an affidavit to their motion to dismiss which referenced facts not pled by the
plaintiff, the appropriate standard of review was the same as for summary judgment. 305
Kan. at 480-81. But as we have previously stated, Strope's exhibits all related to his well-
pleaded facts. So even though Strope's exhibits often contradicted the facts alleged in his
petition, the district court could consider the exhibits in ruling on the motions to dismiss.

Moreover, the federal circuit courts, including the Tenth Circuit, generally hold
that when an exhibit attached to a complaint is inconsistent with the facts pled in the
complaint, the exhibit controls. See, e.g., Estate of Ronquillo v. City & County of Denver,
No. 16-1476, 2017 WL 6422342, at *2 (10th Cir. 2017) (unpublished opinion); Nguyen v.
Bank of America, NA, 563 Fed. Appx. 558, 558 (9th Cir. 2014) (unpublished opinion);
see also Crenshaw v. Lister, 556 F.3d 1283, 1292 (11th Cir. 2009); Kaempe v. Myers, 367
F.3d 958, 963 (D.C. Cir. 2004); Northern Indiana Gun & Outdoor Shows, Inc. v. City of
South Bend, 163 F.3d 449, 454 (7th Cir. 1998); ALA, Inc. v. CCAIR, Inc., 29 F.3d 855,
859 n.8 (3d Cir. 1994); Nishimatsu Construction Co. v. Houston Nat'l Bank, 515 F.2d
1200, 1206-07 (5th Cir. 1975).

In particular, we cite Associated Builders, Inc. v. Alabama Power Co., 505 F.2d
97, 100 (5th Cir. 1974), which states that conclusory allegations and unwarranted
statements of fact included in a complaint are not admitted as true, "especially when such
conclusions are contradicted by facts disclosed by a document appended to the
complaint." The court also stated that "[i]f the appended document, to be treated as part
of the complaint for all purposes under Rule 10(c), Fed. R. Civ. P., reveals facts which
foreclose recovery as a matter of law, dismissal is appropriate." 505 F.2d at 100.
7

These federal circuit court rulings were based on Federal Rule of Civil Procedure
10(c), which states: "A statement in a pleading may be adopted by reference elsewhere
in the same pleading or in any other pleading or motion. A copy of a written instrument
that is an exhibit to a pleading is a part of the pleading for all purposes." K.S.A. 2017
Supp. 60-210(c) is identical to the federal rule. Kansas courts often look to the federal
courts for guidance on how to interpret the Kansas rules, especially when the Kansas
rules are identical to the federal rules. See Back-Wenzel v. Williams, 279 Kan. 346, 349,
109 P.3d 1194 (2005). Based on this authority, we find that Strope's exhibits control
when inconsistent with his well-pleaded facts. This way, regardless of whether a § 1983
suit is brought in Kansas state court or federal court, the result would be consistent.

Strope's retaliation claims

Strope initially contends that the district court erred when ruling without a hearing
that he failed to state a retaliation claim. Strope's arguments for this issue essentially
consist of him restating his grievances from his petition. The gist of Strope's claims in his
petition are that prison officials attempted to silence his complaints by retaliating against
him for filing his grievances, in violation of 42 U.S.C. § 1983.

42 U.S.C. § 1983 protects inmates from retaliation for exercising their right of free
speech or right of access to the courts. See Borough of Duryea v. Guarnieri, 564 U.S.
379, 387, 131 S. Ct. 2488, 180 L. Ed. 2d 408 (2011); Bloom v. Arnold, 45 Kan. App. 2d
225, 232, 248 P.3d 752 (2011). To state a valid claim of retaliation,

"a plaintiff must include facts in the petition alleging that (1) the plaintiff was engaged in
a constitutionally protected activity; (2) the defendant's actions caused the plaintiff to
suffer an injury sufficient to chill a person of ordinary firmness from continuing to
engage in that activity; and (3) the defendant's adverse action was substantially based on
the plaintiff's exercise of a constitutionally protected right." Bloom, 45 Kan. App. 2d at
233 (citing Mimics, Inc. v. Village of Angel Fire, 394 F.3d 836, 847 [10th Cir. 2005]).
8

With respect to the first prong, prison inmates retain their First Amendment rights
as long as these rights are consistent with the legitimate penological objectives of the
prison system. Pell v. Procunier, 417 U.S. 817, 822, 94 S. Ct. 2800, 41 L. Ed. 2d 495
(1974). Prison inmates also retain their right of access to the courts, including the filing
of grievances at the administrative level. See Bloom, 45 Kan. App. 2d at 232; see also
Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990) ("Prison officials may not
retaliate against or harass an inmate because of the inmate's exercise of his right of access
to the courts."). Because Strope's petition alleged facts to establish that he was engaged in
a constitutionally protected activity in filing his grievances, he pled ample facts to
establish the first prong of a valid claim of retaliation.

As to the second prong, Strope's petition alleged that prison officials caused him to
suffer an injury by (1) refusing to properly process his grievances, (2) denying him
medical treatment and removing his bottom bunk/bottom run restrictions, and (3)
removing his prison dog from his custody. Strope's own exhibits contradict these claims.
First, even though Strope often followed the improper grievance procedure, the exhibits
attached to his petition establish that prison officials still responded to Strope's claims and
explained the proper procedure for filing grievances; none of these responses were
hostile. Second, the exhibits indicate that no healthcare provider improperly removed his
bottom run restriction or failed to treat him, as Strope alleged in his petition. In fact, the
exhibits show that Strope was housed in a cell on the bottom run and that he was not
treated for any medical issues because he never placed any sick calls. Third, according to
Strope's exhibits, when prison officials removed Strope's dog from his custody, they did
so because Strope voluntarily left the prison dog program. Thus, Strope's own exhibits
fail to support the second prong of a valid claim of retaliation.

As to the third prong, Strope's exhibits indicate that the alleged adverse actions
taken by the defendants were not substantially based on him filing grievances. As
discussed above, the defendants continuously processed Strope's grievances, the
9

defendants did not remove Strope's bottom run restriction or abstain from providing
treatment as a retaliatory move, and the defendants did not remove Strope from the dog
program. Once again, Strope's own exhibits fail to support the claims in his petition.

In sum, although Strope pled ample facts to establish the first prong of a valid
claim of retaliation, his own exhibits controverted any facts related to the second or third
prongs of a valid claim. For these reasons, the district court correctly granted the
defendants' motions to dismiss in regard to Strope's retaliation claims.

Strope's Eighth Amendment claims

Next, Strope claims the district court erred by granting the defendants' motions to
dismiss for failure to state a claim regarding his Eighth Amendment claims. To support
this claim, Strope reargues facts from his petition. In the petition, Strope claimed that the
defendants were deliberately indifferent to his medical needs when they denied his
emergency medical grievances and provided no medical restrictions or treatment.

The Eighth Amendment to the United States Constitution prohibits the
government from inflicting cruel and unusual punishment on individuals, including
prisoners. U.S. Const. amend. VIII; Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285,
50 L. Ed. 2d 251 (1976). Under the federal and Kansas Constitutions, Kansas prisoners
have a right to adequate medical care. Darnell v. Simmons, 30 Kan. App. 2d 778, 780, 48
P.3d 1278 (2002) (citing Levier v. State, 209 Kan. 442, 445-48, 497 P.2d 265 [1972]).

The Eighth Amendment proscribes "deliberate indifference" of prisoners' medical
needs. Estelle, 429 U.S. at 104. Deliberate indifference contains both subjective and
objective components. For the objective component, the petitioner must show that the
medical need is sufficiently serious. A medical need is sufficiently serious when a
diagnosed injury requires medical treatment or if the need for treatment is so obvious that
10

a lay person would recognize the need. "The objective component is satisfied upon proof
of the prison officials' knowledge of the need and disregard of an excessive risk to an
inmate's health or safety." Laubach v. Roberts, 32 Kan. App. 2d 863, 872, 90 P.3d 961
(2004). The subjective component is met when a prison official "knows that inmates face
a substantial risk of serious harm and disregards that risk by failing to take reasonable
measures to abate it." Farmer v. Brennan, 511 U.S. 825, 847, 114 S. Ct. 1970, 128 L. Ed.
2d 811 (1994).

Strope has failed to state a claim of deliberate indifference regarding his medical
care. As the district court pointed out, Strope never stated a particular injury in his
petition. He merely alleged that his medical restrictions were improperly removed and his
medical grievances were improperly denied. Without providing the injury, under the
objective prong, a court cannot determine the seriousness or obviousness of an injury,
and, under the subjective prong, a court cannot determine the risk of harm or what
measures might abate such harm. Given that Strope failed to state a medical injury, he did
not establish the objective or subjective component of the deliberate indifference
analysis, thereby failing to state a claim.

Now on appeal, Strope claims he sustained a lower back injury when he was
forced to perform heavy lifting in violation of his medical restrictions, but he needed to
plead such facts in his petition, not for the first time on appeal. Moreover, Strope's
exhibits indicate that he apparently was treated for this very injury, and his bottom run
restriction was not renewed because Strope never requested a renewal. The grievance
responses explained all of this to Strope, specifically informing him that he needed to
place a sick call for his medical claims to be evaluated. As previously discussed, Strope's
exhibits govern over any inconsistent facts pled in the petition. Thus, the district court did
not err in granting the defendants' motions to dismiss Strope's Eighth Amendment claims.


11

Strope's Fourteenth Amendment claims

Next, Strope claims that the district court erred when it dismissed his petition for
failure to state a claim regarding his Fourteenth Amendment claims. In his petition,
Strope argued that he was denied equal protection of the laws and that he was denied his
right to due process when prison officials removed his dog from his custody without
following the proper procedures.

The Equal Protection Clause of the Fourteenth Amendment provides in part: "No
state shall . . . deny to any person within its jurisdiction the equal protection of the laws."
U.S. Const. amend. XIV, § 1. The Equal Protection Clause proscribes "'disparity in
treatment by a State between classes of individuals whose situations are arguably
indistinguishable.'" State v. Mueller, 271 Kan. 897, 903, 27 P.3d 884 (2001) (quoting
Ross v. Moffitt, 417 U.S. 600, 609, 94 S. Ct. 2437, 41 L. Ed. 2d 341 [1974]). Strope
makes no claim that his situation involves a suspect class of individuals or a fundamental
interest. As a result, in order to state a claim upon which relief can be granted, the actions
by prison officials of which Strope complains must not be rationally related to a
legitimate governmental objective. See Barrett v. U.S.D. No. 259, 272 Kan. 250, 256,
263, 32 P.3d 1156 (2001).

Here, Strope failed to state a claim under the Equal Protection Clause. In his
petition, Strope never mentions how other similarly situated inmates were treated by
prison officials. Thus, he pled no facts that would show a disparity of treatment. Without
providing such information, Strope's petition failed to state a valid equal protection claim.
Thus, the district court correctly dismissed Strope's petition in this regard.

Turning to Strope's due process claims, he again has failed to state a claim upon
which relief can be granted. To have a valid due process claim, there must be a protected
property or liberty interest at issue. Village Villa v. Kansas Health Policy Authority, 296
12

Kan. 315, 331, 291 P.3d 1056 (2013). On appeal, Strope is claiming he was deprived a
protected property interest when prison officials removed his prison dog from his
custody. But in his petition, Strope never argued the removal of his dog as a due process
violation; he only claimed the prison removed his dog as a retaliatory act. Moreover,
Strope's exhibits show that the prison never made the inmates the owners of the dogs. In
fact, in his brief, Strope concedes that the inmates were granted temporary custody of the
dog until the inmate left the program or the dog was adopted. Thus, Strope never
acquired a protected property interest in the dog. Finally, Strope's exhibits show that
prison officials removed his dog because he voluntarily left the program. For these
reasons, the district court correctly dismissed Strope's due process claims.

Miscellaneous issues

Next, Strope claims that the district court incorrectly ruled that he failed to exhaust
his administrative remedies. But although the district court questioned whether Strope
had exhausted his administrative remedies, the district court did not dismiss the petition
on this ground. Instead, the district court ruled that Strope failed to state any claim for
which relief could be granted pursuant to K.S.A. 2017 Supp. 60-212(b)(6). Strope's
argument on this issue is moot.

Finally, Strope claims that K.A.R. 44-15-102(d)(1), limiting a grievance to 10
pages, violates his rights of free speech and access to the courts. Again, the district court
did not rule on this issue. In his petition, while only mentioning this claim a single time,
Strope provides no explanation for why this 10-page limit is unconstitutional. Without
providing facts to support this legal conclusion, Strope failed to state a claim upon which
relief could be granted. See Halley v. Barnabe, 271 Kan. 652, 656, 24 P.3d 140 (2001).

Affirmed.