Whitehead-King v. Pryor

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NOT DESIGNATED FOR PUBLICATION

No. 115,019

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ERIC WHITEHEAD-KING,
Appellant,

v.

REX PRYOR,
Appellee.


MEMORANDUM OPINION

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed September
23, 2016. Affirmed.

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

Sherri Price, special assistant attorney general, of Lansing Correctional Facility, for appellee.

Before PIERRON, P.J., GREEN and BUSER, JJ.

Per Curiam: Eric Whitehead-King, an inmate at the Lansing Correctional
Facility, filed a K.S.A. 2015 Supp. 60-1501 petition claiming the Kansas Department of
Corrections has taken his property and deprived him of his liberty. The trial court issued a
writ of habeas corpus. The warden filed a motion to dismiss the petition. Finding
Whitehead-King failed to exhaust administrative remedies, the trial court dissolved the
previously issued writ and dismissed the petition for habeas corpus. Finding no merit in
Whitehead-King's argument, we affirm.

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On October 3, 2014, Whitehead-King, an inmate at the Lansing Correctional
Facility, filed a petition for writ of habeas corpus under K.S.A. 2015 Supp. 60-1501,
alleging unlawful imprisonment because "Ray Roberts [Secretary of Corrections] took
my property (my money) and elevated my c[u]stody/deprive[d] me of my liberty."
Whitehead-King requested that "the court order the infraction be expunged from his
record and all punishments vacated."

Whitehead-King attached numerous documents related to his petition. In his
grievances, he appeared to request his disciplinary records to review fines and other
sanctions imposed in disciplinary proceedings. He also filed an appeal of a grievance to
the secretary of corrections. He claimed: "I feel that [the] warden should have provided
me with my requested info[rmation] since other parties failed to provide info[rmation]
. . . and give me back my good time [and] money that was [taken] through the
[disciplinary] proceeding." A staff member from the Kansas Department of Corrections
told him that he should have received his disciplinary disposition relating to a specific
hearing. He was further told the grievance procedure was not the appropriate avenue to
raise complaints regarding the inmate disciplinary procedure.

A writ of habeas corpus was issued on January 12, 2015. The warden moved to
dismiss, claiming Whitehead-King had failed to exhaust administrative remedies before
filing this action in accordance with K.S.A. 75-52,138. Following the motion to dismiss,
Whitehead-King filed a pro se motion to "conditionally accept for value for proof of
claim" and a "journal entry of judgment." Neither motion addressed the issue of
exhaustion of administrative remedies.

A hearing was held on March 26, 2015. At the hearing, the warden's legal counsel
raised two issues. First, she argued that Whitehead-King had failed to exhaust his
administrative remedies. Second, she said, "[I]t appears his claims revolve around
disciplinary convictions that he received . . . ." The trial judge noted that he had looked
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through the record and could not find the disciplinary proceeding Whitehead-King
appeared to be challenging. Whitehead-King then said, "My—the whole reason [for] me
filing my petition was to seek documentation from my disciplinary procedures and which
[counsel] and the other defendants in here wouldn't even provide me." He further stated,
"I've asked on numerous occasions, I even gave—or responded to her motion to dismiss
with a voluntary to dismiss if she could just provide me with the documents that I was
entitled to." Upon hearing this, the trial judge asked counsel if she had copies of the
disciplinary report. Counsel said that she could "provide copies of the costs, yes." On
appeal, it seems that the warden agreed to provide copies of the records requested for the
cost of copying. Therefore, it seems that counsel told Whitehead-King that she could
provide copies to him for the cost of those copies. Whitehead-King responded that he did
not want copies; he wanted to inspect the originals. Counsel told him, "We don't keep
original copies."

After hearing arguments, the trial court requested copies of the disciplinary report
in addition to any of Whitehead-King's appeals of his requests. The trial court wanted to
review whether Whitehead-King's claims involved constitutionally protected interests.
The trial court also said it wanted to review whether Whitehead-King followed the
procedure for appeals of his disciplinary rulings.

Following the hearing, Whitehead-King filed several pro se motions. He claimed
he had exhausted administrative remedies and the "proof was attached to [his] petition."

On May 21, 2015, the trial court issued its order granting the warden's motion to
dismiss due to Whitehead-King's failure to exhaust administrative remedies. The trial
court noted that it gave Whitehead-King an additional 30 days to provide the necessary
documents. The trial court further noted that Whitehead-King had failed to provide
"proof of any exhaustion of administrative remedies."

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Did the Trial Court Err in Finding Whitehead-King Failed to Exhaust Administrative
Remedies?

On appeal, Whitehead-King argues that the trial court erred when it denied his
petition because the trial court mistakenly assumed he was contesting a prison
disciplinary action. He contends that he filed his grievances to request a copy of his
disciplinary records. He further contends: "These grievances were each fully exhausted
having received responses from the secretary's designee. There were no further
administrative remedies for petitioner to exhaust."

Whether jurisdiction is lacking due to a failure to exhaust administrative remedies
presents a question of law over which appellate courts have unlimited review. In re
Habeas Corpus Application of Pierpoint, 271 Kan. 620, 622-23, 24 P.3d 128 (2001).

K.S.A. 75-52,138 requires an inmate to exhaust available administrative remedies
"established by rules and regulations promulgated by the secretary of corrections" before
bringing an action in district court and to file proof of such exhaustion with a 60-1501
petition. Boyd v. Werholtz, 41 Kan. App. 2d 15, 17, 203 P.3d 1 (2008). Such rules and
regulations are generally found at K.A.R. 44-15-101 et seq. The 30-day time limit for an
inmate to file a 60-1501 petition is extended "during the pendency of the inmate's timely
attempts to exhaust such inmate's administrative remedies." K.S.A. 2015 Supp. 60-
1501(b).

The record on appeal contains multiple requests and grievances and one appeal to
the secretary; Whitehead-King has not met his burden of proof that he exhausted his
administrative remedies. Appellants have the burden to provide a record sufficient to
support their arguments. Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636,
644-45, 294 P.3d 287 (2013). Furthermore, on appeal, he correctly states that he filed
multiple grievances and requests, but he has failed to show which rules and regulations
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he has exhausted. For example, it seems he requested the disciplinary records to
challenge prior disciplinary proceedings. This type of challenge would likely fall under
K.A.R. 44-13-101 et seq. Yet, it also seems he contended that he was filing a grievance to
obtain a copy of his entire record. This issue would likely fall under the grievance
procedure in K.A.R. 44-15-101 et seq. Either way, Whitehead-King has failed to file
proof of exhaustion of administrative remedies as required by K.S.A. 75-52,138. As a
result, we determine that the trial court properly dismissed Whitehead-King's action for
failure to exhaust administrative remedies.

Is Whitehead-King Entitled to Relief Under K.S.A. 2015 Supp. 60-1501?

Assuming arguendo that Whitehead-King's various disputes have merit, we
determine that Whitehead-King has failed to assert a deprivation of a constitutional right.
Instead of asserting a deprivation of a constitutional right, Whitehead-King argues that he
was entitled to a copy of his disciplinary record as provided in the Kansas Open Records
Act, specifically in K.S.A. 2015 Supp. 45-221. He contends that this statute provides him
with "an absolute right to a copy of his prison disciplinary records."

We first note that Whitehead-King never raised this issue of whether he was
entitled to his disciplinary record under the Kansas Open Records Act below. Issues not
raised before the trial court cannot be raised on appeal. Wolfe Electric, Inc. v. Duckworth,
293 Kan. 375, 403, 266 P.3d 516 (2011). Furthermore, Whitehead-King has failed to
comply with Supreme Court Rule 6.02(a)(5) (2015 Kan. Ct. R. Annot. 41), which
requires an appellant to explain why an issue that was not raised below should be
considered for the first time on appeal. Because he has failed to comply with the rule, this
issue is deemed waived and abandoned. See State v. Godfrey, 301 Kan. 1041, 1044, 350
P.3d 1068 (2015).

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In a writ of habeas corpus under K.S.A. 2015 Supp. 60-1501, Whitehead-King
requested "the court order the infraction be expunged from his record and all punishments
vacated." Then, at the hearing, he argued that he filed his grievances to obtain a copy of
his disciplinary record. As a result, it is very difficult to determine the focal point of
Whitehead-King's dispute.

Nevertheless, to maintain a K.S.A. 2015 Supp. 60-1501 action, an inmate must
assert the deprivation of a constitutional right. Anderson v. McKune, 23 Kan. App. 2d
803, 806-07, 937 P.2d 16, cert. denied 522 U.S. 958 (1997). To state a claim for relief
under K.S.A. 2015 Supp. 60-1501, a petition must allege "shocking and intolerable
conduct or continuing mistreatment of a constitutional stature." Johnson v. State, 289
Kan. 642, 648, 215 P.3d 575 (2009). "[I]f on the face of the petition, it can be established
that petitioner is not entitled to relief, or if, from undisputed facts, or from
uncontrovertible facts, such as those recited in a court record, it appears, as a matter of
law, no cause for granting a writ exists," then summary dismissal is proper. 289 Kan. at
648-49. An appellate court exercises unlimited review of a summary dismissal. 289 Kan.
at 649.

Here, the warden offered to provide Whitehead-King with copies of his
disciplinary record for the cost of the copies. Whitehead-King declined the offer, stating
he wanted to review the originals, and he refused to pay for the copies. The warden's
refusal to provide Whitehead-King the original documents is not a constitutionally
protected interest. Furthermore, Whitehead-King has failed to "allege shocking and
intolerable conduct or continuing mistreatment of a constitutional stature." As a result,
summary dismissal of this action was appropriate.

Affirmed.