Eric L. Gibson v. Kentucky Department of Corrections ( 2022 )

RENDERED: MAY 6, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1246-MR
ERIC L. GIBSON APPELLANT
APPEAL FROM LYON CIRCUIT COURT
v. HONORABLE C.A. WOODALL, III, JUDGE
ACTION NO. 19-CI-00071
KENTUCKY DEPARTMENT OF
CORRECTIONS AND DEEDRA
HART APPELLEES
OPINION
AFFIRMING
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BEFORE: GOODWINE, MAZE, AND MCNEILL, JUDGES.
GOODWINE, JUDGE: Eric L. Gibson (“Gibson”) appeals pro se from the
judgment of the Lyon Circuit Court dismissing his complaint on the basis that he
failed to exhaust administrative remedies. We affirm.
Gibson alleges that, on September 9, 2018, while he was an inmate, he
slipped and broke his right leg in two places on the grounds of the Kentucky State
Penitentiary. On June 12, 2019, he filed a complaint against the Kentucky
Department of Corrections and Warden DeEdra Hart (collectively “Corrections”)
in the circuit court asserting claims under the Kentucky Constitution and the
Eighth Amendment of the United States Constitution, as well as alleging
negligence. No documentation was attached to Gibson’s complaint.
Corrections filed a motion to dismiss Gibson’s complaint under CR1
12.02(f) arguing he failed to exhaust administrative remedies as mandated by KRS2
454.415. The circuit court allowed Gibson to file an amended complaint. His
amended complaint was virtually identical to his original complaint except that it
included a statement that he had exhausted administrative remedies by timely filing
an institutional grievance. Record (“R.”) at 22-23. No documentation was
attached to the amended complaint.
Corrections again moved to dismiss Gibson’s complaint on the same
grounds. In response, Gibson filed a motion, which he styled as a motion to show
cause, regarding his alleged exhaustion of administrative remedies on July 26,
2019. Therein, he repeated the claim that he exhausted administrative remedies.
Gibson attached two documents to his motion. The first appears to be a log of
grievances filed by inmates which shows that he filed a grievance on January 4,
1
Kentucky Rules of Civil Procedure.
2
Kentucky Revised Statutes.
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2019. R. at 34. The second is a letter dated July 22, 2019, from Gibson addressed
to the deputy warden of the prison requesting information on the status of his
grievance. R. at 35. Corrections responded to the motion, maintaining its
argument that Gibson had not exhausted administrative remedies. Corrections
attached a copy of Gibson’s grievance and a grievance rejection notice to its
response.
On August 16, 2019, the circuit court granted Corrections’ motion and
dismissed Gibson’s complaint. The court determined that neither the complaint
nor the amended complaint included documentation showing Gibson’s exhaustion
of administrative remedies. Furthermore, the court found the documents attached
to Gibson’s July 26, 2019 motion did not “overcome the failure to exhaust
administrative remedies.” R. at 46.
On September 3, 2019, Gibson moved to alter, amend, or vacate the
judgment under CR 59.05. Before the circuit court ruled on his motion, Gibson
filed a notice of appeal on September 13, 2019. In case number 2019-CA-1388-
MR, this Court ordered Gibson’s appeal be held in abeyance for sixty days to allow
the circuit court to rule on the CR 59.05 motion. Gibson did not seek an extension
of the period of abatement when the court did not address the motion within the
sixty days. Because a CR 59.05 motion has the affect of converting a final
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judgment into an interlocutory one until it is resolved, this Court dismissed
Gibson’s appeal.
On August 26, 2020, the circuit court denied Gibson’s CR 59.05
motion. This appeal followed.
We review judgments on motions to dismiss under CR 12.02(f) de
novo. Morgan v. Bird, 289 S.W.3d 222, 226 (Ky. App. 2009) (citation omitted).
Because such a motion involves a pure question of law, we owe the circuit court’s
decision no deference. Id. (citation omitted).
On appeal, Gibson argues the circuit court erred in dismissing his
complaint for failure to exhaust administrative remedies. In part, KRS 454.415
mandates:
(1) No action shall be brought by or on behalf of an
inmate . . . until administrative remedies as set forth in
the policies and procedures of the Department of
Corrections, county jail, or other local or regional
correctional facility are exhausted.
(2) Administrative remedies shall be exhausted even if
the remedy the inmate seeks is unavailable.
(3) The inmate shall attach to any complaint filed
documents verifying that administrative remedies
have been exhausted.
(4) A court shall dismiss a civil action brought by an
inmate . . . if the inmate has not exhausted
administrative remedies[.]
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The burden to provide documentation of exhaustion of administrative
remedies is placed solely on the inmate by KRS 454.415(3). Herein, Gibson
attached no documentation to either his complaint or amended complaint, a clear
violation of the statute. Even the documents attached to his July 26, 2019 motion
do not show exhaustion of administrative remedies. Instead, the documents show
only that he filed a grievance. They do not indicate what arguments he made
therein, nor do they show the outcome or that he exhausted the grievance process.
Furthermore, prior to filing an action in circuit court, Gibson was
required to follow the grievance procedures detailed in CPP3 14.6. Therein, an
inmate must first file a grievance within five business days after the incident. CPP
14.6(II)(J)1.a.(2). Thereafter, “[t]he Grievance Coordinator may reject a grievance
that does not comply with the grievance process requirements[,]” including
timeliness. CPP 14.6(II)(J)1.a.(13).
Even if we were to consider the documentation provided by
Corrections in its response to Gibson’s July 26, 2019 motion, his claims would
ultimately fail. Gibson was injured on September 9, 2018 but did not file his
grievance until January 4, 2019. As noted in the grievance rejection notice,
3
Kentucky Corrections Policies and Procedures.
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Gibson’s grievance was filed more than five business days after the incident. R. at
40.
Based on the foregoing, we affirm the judgment of the Lyon Circuit
Court.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEES:
Eric L. Gibson, pro se Richard D. Lilly
West Liberty, Kentucky Frankfort, Kentucky
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