Chelf v. State

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No. 103,450

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JAMES CHELF,
Appellant,

v.

STATE OF KANSAS,
Appellee.


SYLLABUS BY THE COURT

1.
K.S.A. 75-52,138 provides that any inmate in the custody of the Secretary of
Corrections must exhaust all administrative remedies provided by the Secretary of
Corrections before filing a civil lawsuit against the State of Kansas.

2.
K.A.R. 44-16-104a provides that any claim for personal injury must be submitted
by the inmate to the facility within 10 calendar days of the claimed personal injury.

3.
Subject matter jurisdiction is vested by statute or constitution and establishes the
court's authority to hear and decide a particular type of action. Parties cannot confer
subject matter jurisdiction upon the courts by consent, waiver, or estoppel. Parties cannot
confer subject matter jurisdiction by failing to object to the court's lack of jurisdiction. If
a trial court determines that it lacks subject matter jurisdiction, it has absolutely no
authority to reach the merits of the case and is required as a matter of law to dismiss it.


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4.
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.
Because it is not jurisdictional, the failure to exhaust administrative remedies as required
by this particular statute may be subject to certain defenses such as waiver, estoppel, or
equitable tolling.

5.
Waiver is the voluntary and intentional relinquishment of a known right and the
expression of an intention not to insist upon what the law affords.

6.
A party asserting equitable estoppel bears the burden to establish the party was
induced to believe certain facts as a result of another person's acts, representations,
admissions, or silence when that person was under a duty to speak, the party relied and
acted upon those facts, and the party would be prejudiced if the other person were
allowed to deny the existence of those facts.

7.
The equitable doctrine of quasi-estoppel involves an assertion of rights
inconsistent with past conduct, silence by those who ought to speak, or situations wherein
it would be unconscionable to permit a person to maintain a position inconsistent with
one to which the person has acquiesced.

8.
Kansas courts recognize a judicially created equitable exception to exhaustion
when the administrative remedies available are inadequate or compliance with them
would serve no purpose.

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9.
The basic elements of procedural due process are notice and an opportunity to be
heard at a meaningful time and in a meaningful manner.

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed
September 23, 2011. Affirmed.

William J. Pauzauskie, of Topeka, for appellant.

Matthew J. Donnelly, legal counsel, of Lansing Correctional Facility, for appellee.

Before STANDRIDGE, P.J., MCANANY, J., and KNUDSON, S.J.

STANDRIDGE, J.: James Chelf appeals from the district court's decision to
summarily dismiss his personal injury claim for lack of subject matter jurisdiction
because he failed to timely exhaust his administrative remedies before filing this lawsuit.
For the reasons stated below, we find the district court erred in summarily dismissing
Chelf's claim for lack of subject matter jurisdiction because, although it is a mandatory
prerequisite to filing a civil suit that must be strictly enforced by the court, the exhaustion
requirement set forth in K.S.A. 75-52,138 is not jurisdictional. Nevertheless, we affirm
the district court's decision to summarily dismiss Chelf's claim because the undisputed
facts in the record do not support either the equitable defenses he advanced or the
constitutional violations he alleged in district court.

FACTS

Chelf, an inmate at the Lansing Correctional Facility, was seriously injured while
working in a chemical plant. Another inmate "was moving [a] big paint mixer machine"
with a forklift when that machine slid off and fell on top of Chelf. Chelf suffered a
crushed right knee and tibia, and his left arm, bicep, shoulder, thigh, ear, and face were
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"smashed." His lower back "hurts all the time" from the accident. Chelf estimated his
medical expenses, loss of earning capacity, economic loss, and pain and suffering at $2
million.

Chelf's injury occurred on June 18, 2007. Chelf filed a claim for damages with the
Kansas Department of Corrections (DOC) on February 14, 2008. Upon review of Chelf's
claim, Lansing Property Claims Officer James K. Jones sent Chelf the following
response:

"Your Property Claim (Personal Injury) is being returned to you with no action
taken. It has been determined that your claim exceeds $500.00. Therefore, in accordance
with IMPP [Internal Management Policies and Procedures] 01-117 & 01-118 Property
damage/loss or personal injury exceeding $500.00 that cannot be resolved [for] $500.00
or less shall be filed with the Joint Committee on Special Claims against the State."

On February 26, 2008, Chelf filed his claim with the joint committee on special
claims (joint committee) as directed by Officer Jones. On August 27, 2008, the joint
committee denied Chelf's claim without prejudice. Chelf thereafter filed a petition for
damages sounding in tort against the State of Kansas in Shawnee County District Court.
Shawnee County transferred the case to Leavenworth County on November 7, 2008.

About a month after the case was transferred, the State filed a motion to dismiss
based on Chelf's failure to timely exhaust his administrative remedies. The district court
denied the motion, finding insufficient evidence in the record to determine whether Chelf
timely exhausted his administrative remedies. The State filed a motion to reconsider, to
which it attached an exhibit establishing the date Chelf filed his administrative claim.
Upon reconsideration, the district court granted the State's motion to dismiss on grounds
that Chelf had "filed [his claim] out of time" and therefore failed to timely exhaust his
administrative remedies.

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ANALYSIS

The Kansas Tort Claims Act

In October 2008, Chelf filed this lawsuit seeking money damages from the State of
Kansas for personal injuries sustained as a result of the State's negligence. At common
law, a state—as the sovereign—is immune from suit unless it consents. Woodruff v. City
of Ottawa, 263 Kan. 557, 561, 951 P.2d 953 (1997). The Kansas Tort Claims Act
(KTCA) provides this consent, subject to certain exceptions. The general rule of liability
for negligent or wrongful acts or omissions by state employees who are acting within the
scope of their employment is set forth in K.S.A. 2010 Supp. 75-6103. Although various
exceptions to the general rule of liability are set forth in K.S.A. 2010 Supp. 75-6104, the
KTCA makes liability the rule and immunity the exception, and the burden is on the State
to establish it is entitled to any of the stated exceptions. C.J.W. v. State, 253 Kan. 1, 13,
853 P.2d 4 (1993).

The Kansas Code of Civil Procedure is applicable to actions within the scope of
the KTCA. K.S.A. 2010 Supp. 75-6103(b). Under the Kansas Code of Civil Procedure,
"[a]n action for injury to the rights of another, not arising on contract," shall be brought
within 2 years. K.S.A. 60-513(a)(4). For purposes of filing a timely KTCA claim, Chelf
had to file his civil lawsuit for negligence against the State of Kansas within 2 years of
June 18, 2007, the date of the accident. Chelf filed his petition with the district court in
October 2008; thus, the lawsuit was filed in a timely manner for purposes of the KTCA.

Inmate Exhaustion Requirements

Because Chelf was an inmate at the time of the accident, however, we must
consider the viability of Chelf's claim of negligence not only in the context of the KTCA,
but also in the context of a separate and distinct statutory scheme relating to the DOC. To
that end, K.S.A. 75-52,138 requires any inmate in the custody of the Secretary of
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Corrections to exhaust all administrative remedies provided by the Secretary of
Corrections before filing a civil lawsuit against the State of Kansas. At issue here is
K.A.R. 44-16-104a, the administrative regulation promulgated by the Secretary of
Corrections governing inmate claims for personal injury. In order to provide the
necessary context for our analysis of the issue presented in this first claim of error, we
find it helpful to briefly review the history of this regulation.

The prior regulation, K.A.R. 44-16-104, became effective on May 1, 1980, and
was revoked in its entirety on February 15, 2002. Before it was revoked, the regulation
stated as follows:

"(a) Claims for property loss or damage or personal injury may be submitted to
the institution and secretary of corrections. If the loss is greater than $500.00, the claim
may be filed with the joint legislative committee on claims against the state." K.A.R. 44-
16-104 (2000).

A panel of this court was required to interpret this provision of K.A.R. 44-16-104
in Bates v. Kansas Dept. of Corrections, 31 Kan. App. 2d 513, 514-15, 67 P.3d 168
(2003). In Bates, an inmate sued the State for more than $75,000 based on serious
personal injuries (crushed pelvis, crushed back, and a severed urethra) received while
operating a road grader at a correctional institution. Because he did not file a grievance or
claim form with the prison prior to filing suit, the district court dismissed the lawsuit
based on Bates' failure to exhaust his administrative remedies. Bates then filed a claim
with the legislature's joint committee on special claims against the State (joint
committee). After the joint committee denied him relief, Bates refiled his claim in district
court. The State moved for summary judgment, which the court granted. In support of
this decision, the court again found Bates had failed to exhaust administrative remedies
under K.A.R. 44-16-104, which required him to file a grievance or claim with the
institution prior to seeking relief from the joint committee.
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On appeal, a panel of this court reversed. In its analysis, the Bates court
interpreted K.A.R. 44-16-104 as providing an inmate in Bates' situation with two
alternatives for exhausting administrative remedies: (1) presenting the claim to the
prison; or (2) presenting the claim to the joint committee. In so doing, the court
specifically rejected the argument that K.A.R. 44-16-104 required a two-step (as opposed
to an alternative) exhaustion process. Relevant to this analysis, the court explained the
rationale for making either of these two alternatives available to satisfy an inmate's
exhaustion requirement:

"The reason behind the joint committee option may be found in K.S.A. 46-920,
which governs personal injury claims against the State within the prison context. The
statute expressly provides that the Secretary of Corrections lacks the statutory authority to
pay any claim of 'an amount of more than $500.' K.S.A. 46-920(a).
"This statute explains why the joint committee option is provided within the
regulations. The DOC does not have the authority or ability to disburse funds in excess of
$500. In the present case, Bates was seeking relief in excess of $75,000 for very
substantial alleged physical injuries. Clearly, he could not obtain comparable relief from
the DOC. Therefore, it is logical that joint committee claims are intended to be part of the
administrative procedure and were established by rules and regulations promulgated by
the Secretary of Corrections.
"Also, the State's claim that the DOC should be given an opportunity to settle the
claim internally runs counter to this same logic. To ask an inmate to bring a claim such as
Bates' to an agency with authority to pay only $500 has no reasonable basis. We
acknowledge that it is easy to claim injury of over $500, even if none actually occurred.
However, in the instant case, that does not appear to be the situation." Bates, 31 Kan.
App. 2d at 517.

Finding Bates had submitted proper documentation to establish that he had filed a
claim with the joint committee prior to refiling his civil lawsuit against the State of
Kansas, the court held Bates had exhausted his administrative remedies under K.A.R. 44-
16-104, as required by K.S.A. 75-52,138. Bates, 31 Kan. App. 2d at 518. The court did
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not address any issue related to the time period between the date Bates sustained his
injury and the date he presented his claim to satisfy the exhaustion requirement because
K.A.R. 44-16-104 did not impose any sort of time deadline for exhausting administrative
remedies.

Although applicable to the claim presented in Bates, K.A.R. 44-16-104 was
revoked in its entirety on February 15, 2002. For the next 5-plus years, there were no
administrative regulations governing inmate claims for personal injury. On June 1, 2007,
however, K.A.R. 44-16-104a became effective. This regulation states as follows:

"(a) Each inmate claim for personal injury shall be submitted to the facility and
secretary of corrections within 10 calendar days of the claimed personal injury.
"(b) Each claim described in subsection (a) shall be submitted and processed in
accord with the department of corrections' internal management policies and procedures.
"(c) The requirement that the inmate submit the claim as described in subsection
(a) shall apply whether or not the inmate pursues a grievance pursuant to article 15 and
whether or not the inmate files a claim with the legislative joint committee on special
claims against the state." K.A.R. 44-16-104a (2008 Supp.).

The exhaustion requirements set forth in K.A.R. 44-16-104a (2008 Supp.) are
more rigorous and demanding than the requirements set forth in K.A.R. 44-16-104
(2000), the previous version of the regulation. Prior to June 1, 2007, an inmate could
present a personal injury claim to the prison or to the joint committee for purposes of
exhausting administrative remedies, but now the inmate must present such a claim to the
prison to properly exhaust. Prior to June 1, 2007, an inmate could present a personal
injury claim to the prison at any time after sustaining the injury for purposes of
exhausting administrative remedies, but now the inmate must present such a claim within
10 days of sustaining the injury in order to properly exhaust.


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The Effect of Failing to Exhaust Remedies on Subject Matter Jurisdiction

Having provided the relevant procedural background for both this lawsuit and the
administrative regulation at issue, we turn to Chelf's claim that the district court erred in
summarily dismissing his petition for negligence under the KTCA for lack of subject
matter jurisdiction because he failed to timely exhaust administrative remedies. We
review a district court's decision granting a motion to dismiss under a de novo standard of
review. Wachter Management Co. v. Dexter & Chaney, Inc., 282 Kan. 365, 368, 144 P.3d
747 (2006). When the district court has granted a motion to dismiss, this court must
assume the truth of the facts alleged by the plaintiff, along with any inferences that can
reasonably be drawn from those facts. This court will then decide whether those facts and
inferences state a claim under any possible theory. Jones v. State, 279 Kan. 364, 366, 109
P.3d 1166 (2005).

Chelf's case was dismissed by the district court upon the State's motion, which was
made pursuant to both K.S.A. 60-212(b)(1) (lack of subject matter jurisdiction) and
K.S.A. 60-212(b)(6) (failure to state a claim upon which relief can be granted). Although
the district court failed to designate by number the statutory subsection upon which it
relied to dismiss the case, the following summary of the court's analysis readily
establishes that the court rendered its decision pursuant to K.S.A. 60-212(b)(1)—lack of
subject matter jurisdiction:

K.A.R. 44-16-104a(a) became effective on June 1, 2007;
K.A.R. 44-16-104a(a) dictates that an inmate claim for personal injury shall be
submitted to the facility and Secretary of Corrections within 10 calendar days of
the claimed personal injury;
Chelf's injury occurred on June 18, 2007;
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Chelf submitted his personal injury claim to the facility and Secretary of
Corrections on February 14, 2008, which was outside of the 10-day period within
which such a claim must be submitted;
Chelf's failure to timely exhaust the applicable DOC administrative remedies (i.e.,
file his personal injury claim within 10 days of his injury) as required by K.S.A.
75-52,138 deprives the court of the requisite jurisdictional authority to entertain
Chelf's KTCA lawsuit against the State of Kansas.

Subject matter jurisdiction is vested by statute or constitution and establishes the
court's authority to hear and decide a particular type of action. Parties cannot confer
subject matter jurisdiction upon the courts by consent, waiver, or estoppel. Parties cannot
confer subject matter jurisdiction by failing to object to the court's lack of jurisdiction. If
a trial court determines that it lacks subject matter jurisdiction, it has absolutely no
authority to reach the merits of the case and is required as a matter of law to dismiss it.
Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009); see
K.S.A. 60-212(h)(3). Whether subject matter jurisdiction exists is an issue of law over
which we have unlimited review. In re Habeas Corpus Application of Pierpoint, 271
Kan. 620, 622-23, 24 P.3d 128 (2001).

In this case, the district court had good reason to assume that an inmate's failure to
exhaust administrative remedies deprived the court of subject matter jurisdiction over a
civil action. This is because we have said as much before. See, e.g., Corter v. Cline, 42
Kan. App. 2d 721, 724, 217 P.3d 991 (2009) (holding that failure to exhaust
administrative remedies deprived the court of jurisdiction to consider claims brought
under K.S.A. 60-1501); Boyd v. Werholtz, 41 Kan. App. 2d 15, 19, 203 P.3d 1 (2008)
(same); Litzinger v. Bruce, 41 Kan. App. 2d 9, 11-12, 201 P.3d 707 (2008) (same);
Laubach v. Roberts, 32 Kan. App. 2d 863, 869-70, 90 P.3d 961 (2004) (same). The
holding in these cases, however, directly conflicts with other appellate cases in Kansas
that have addressed the identical issue. Although acknowledging that strict compliance
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with exhaustion requirements is a necessary procedural prerequisite to filing a civil
action, both this court and the Kansas Supreme Court have held that compliance with
exhaustion requirements is necessarily subject to the general principles of equity,
including but not limited to circumstances where administrative remedies were
inadequate or compliance with administrative procedures would serve no purpose. See In
re Pierpoint, 271 Kan. at 625; McMillan v. McKune, 35 Kan. App. 2d 654, 659-61, 135
P.3d 1258 (2006); McComb v. State, 32 Kan. App. 2d 1037, 1042, 94 P.3d 715, rev.
denied 278 Kan. 846 (2004). To date, no Kansas appellate court has acknowledged, let
alone resolved, the apparent conflict in cases with regard to whether the inmate
exhaustion requirement is merely a prerequisite to suit subject to equitable principles
such as waiver and estoppel or whether it is a requirement that implicates the rigid
principles of subject matter jurisdiction.

Notably, however, the United States Supreme Court has issued a number of
significant opinions over the course of the last few years that discuss the frequency with
which courts, such as ours, have confused jurisdictional constraints with nonjurisdictional
concepts. Concerned about the vanishing distinction between the mandatory requirements
of a cause of action and jurisdiction over that cause of action, the Court in 2006 drew the
following "administrable bright line" between the two:

"If the Legislature clearly states that a threshold limitation on a statute's scope shall count
as jurisdictional, then courts and litigants will be duly instructed and will not be left to
wrestle with the issue. [Citation omitted.] But when [the Legislature] does not rank a
statutory limitation on coverage as jurisdictional, courts should treat the restriction as
nonjurisdictional in character." Arbaugh v. Y & H Corp., 546 U.S. 500, 515-16, 126 S.
Ct. 1235, 163 L. Ed. 2d 1097 (2006).

The Court consistently has adhered to the Arbaugh standard in evaluating the
jurisdictional nature of statutory provisions. More specifically, we note that each time it
has considered a statute requiring a plaintiff to proceed in another forum or seek redress
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in other ways as a precondition to the continuing viability of a legal action, the Court has
characterized the requirement as a claim-processing rule separate and distinct from the
concept of subject matter jurisdiction. See Reed Elsevier, Inc. v. Muchnick, 559 U.S. __,
130 S. Ct. 1237, 1248, 176 L. Ed. 2d 17 (2010) (requirement to register copyright before
filing lawsuit alleging infringement thereof); Union Pacific R. Co. v. Locomotive
Engineers and Trainmen Gen. Comm. of Adjustment, Central Region, 558 U.S. __, 130 S.
Ct. 584, 591, 175 L. Ed. 2d 428 (2009) (requirement to conference before seeking
arbitration); Jones v. Bock, 549 U.S. 199, 202, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007)
(requirement to file claim with prison authorities before filing federal lawsuit alleging
unconstitutional prison conditions); Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
394, 102 S. Ct. 1127, 71 L. Ed. 2d 234 (1982) (requirement to file charge with EEOC
before filing in court).

In Muchnick, the Court considered the jurisdictional nature of a statutory provision
within the Copyright Act dictating that "no civil action for infringement . . . shall be
instituted until preregistration or registration . . . has been made." See 17 U.S.C. § 411(a)
(2006 ed. Supp. III 2009). We find the Court's preliminary observations on the issue of
subject matter jurisdiction to be particularly instructive and especially candid:

"While perhaps clear in theory, the distinction between jurisdictional conditions
and claim-processing rules can be confusing in practice. Courts—including this Court—
have sometimes mischaracterized claim-processing rules or elements of a cause of action
as jurisdictional limitations, particularly when that characterization was not central to the
case, and thus did not require close analysis. [Citations omitted.] Our recent cases evince
a marked desire to curtail such 'drive-by jurisdictional rulings,' [citations omitted], which
too easily can miss the 'critical difference[s]' between true jurisdictional conditions and
nonjurisdictional limitations on causes of action. [Citations omitted.]
"In light of the important distinctions between jurisdictional prescriptions and
claim-processing rules, [citation omitted], we have encouraged federal courts and
litigants to 'facilitat[e]' clarity by using the term 'jurisdictional' only when it is apposite.
[Citation omitted]." 130 S. Ct. at 1243-44.
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The Court in Muchnick ultimately held that the registration requirement was a
precondition to filing a copyright infringement claim that does not restrict a federal
court's subject-matter jurisdiction with respect to infringement suits involving
unregistered works. In so holding, the Court reasoned that it had historically "treated as
nonjurisdictional other types of threshold requirements that claimants must complete, or
exhaust, before filing a lawsuit." 130 S. Ct. at 1246-47.

In Jones, the Court was presented with an exhaustion requirement under the Prison
Litigation Reform Act (PLRA) strikingly similar to the one here: "No action shall be
brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal
law, by a prisoner . . . until such administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a)." 549 U.S. at 204. Although acknowledging that "exhaustion is
mandatory under the PLRA and that unexhausted claims cannot be brought in court," the
parties in Jones agreed that exhaustion is "typically regard[ed] . . . as an affirmative
defense," and the Court agreed, noting that it consistently "referred to exhaustion in these
terms." 549 U.S. at 211, 212. The PLRA's "silen[ce] on the issue whether exhaustion"
was an affirmative defense or an element of a plaintiff's claim, the Court reasoned, was
"strong evidence that the usual practice" of treating it as an affirmative defense should be
followed. 549 U.S. at 212.

Applying the fundamental principles of subject matter jurisdiction in a manner
consistent with that articulated by the United States Supreme Court in the cases set forth
above, we find the exhaustion requirements set forth in K.S.A. 75-52,138 do not have the
hallmarks of a jurisdictional decree. See Arbaugh, 546 U.S. at 515-16 (statutory
requirement will not be deemed jurisdictional unless the statute itself reflects a clear
indication that the legislature wanted the requirements to be jurisdictional). Most notably,
the exhaustion statute "does not speak in jurisdictional terms or refer in any way to the
jurisdiction of the district courts." Zipes, 455 U.S. at 394. Instead, the requirement merely
"establishes a condition"—exhaustion—"that plaintiffs ordinarily must satisfy" before
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filing a civil action against the state, which essentially creates a procedural bar virtually
indistinguishable from a statute of limitations. Muchnick, 130 S. Ct. at 1242. We also find
persuasive the fact that the legislature chose to codify the exhaustion requirement under a
catchall category designated as "Miscellaneous Provisions" within the comprehensive
statutory scheme setting forth the powers and duties of the Secretary of Corrections. See
K.S.A. 75-52,116 et seq.

In sum, we hold 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. Because it is not jurisdictional, failure to exhaust administrative remedies as
required by this particular statute may be subject to certain equitable defenses.

Equitable Defenses

The district court's decision to dismiss Chelf's petition for lack of subject matter
jurisdiction necessarily prevented the court from considering any of the equitable
defenses to exhaustion repeatedly presented by Chelf in written briefing and related
hearings. Although not necessarily couched in legal terms, Chelf's arguments to the
district court were grounded in equitable principles of waiver, estoppel, and futility.

Waiver

Waiver is the voluntary and intentional relinquishment of a known right and the
expression of an intention not to insist upon what the law affords. See Prather v.
Colorado Oil & Gas Corp., 218 Kan. 111, 117, 542 P.2d 297 (1975); Jones v. Jones, 215
Kan. 102, 116, 523 P.2d 743, cert. denied 419 U.S. 1032 (1974). "Waiver must be
manifested in some unequivocal manner by some distinct act or by inaction inconsistent
with an intention to claim forfeiture of a right." Patrons Mut. Ins. Ass'n v. Union Gas
System, Inc., 250 Kan. 722, 725-26, 830 P.2d 35 (1992). In the context of the waiver
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issue presented here, this court previously has found the State waived its right to rely on
an inmate's failure to timely exhaust when a prison official accepted a belated
administrative claim and responded to the merits set forth therein. McMillan, 35 Kan.
App. 2d at 659-61. At least five federal circuits have come to the same conclusion. See
Reed-Bey v. Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010) (when prisoners' grievances
are addressed on the merits notwithstanding procedural errors, including missing time
deadlines, then prison officials have waived the procedural errors); Patel v. Fleming, 415
F.3d 1105, 1111 (10th Cir. 2005) (same); Gates v. Cook, 376 F.3d 323, 331 n.6 (5th Cir.
2004) (same); Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004) (same); Spruill v.
Gillis, 372 F.3d 218, 234 (3d Cir. 2004) (same).

Here, Chelf filed his personal injury claim for damages approximately 8 months
after his injury. An affidavit filed with the district court verified that Officer Jones was
the facility Grievance/Property Claim Officer, that Officer Jones reviewed each and every
inmate personal injury claim, that Officer Jones received a signed and notarized personal
injury claim from Chelf dated February 14, 2008, and that Chelf described the nature of
his claim therein as a personal injury sustained when machinery slid off of a forklift and
fell on top of him. At some point thereafter, Officer Jones sent Chelf an undated memo
communicating the following:

"Your Property Claim (Personal Injury) is being returned to you with no action
taken. It has been determined that your claim exceeds $500.00. Therefore, in accordance
with IMPP [Internal Management Policies and Procedures] 01-117 & 01-118 Property
damage/loss or personal injury exceeding $500.00 that cannot be resolved [for] $500.00
or less shall be filed with the Joint Committee on Special Claims against the State.
"I have attached for your convenience a copy of the form that you will need in
which to file your claim with the Joint Committee on Special Claims against the State
concerning this issue."

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Referring to this written memo, Chelf argued to the district court that the State
waived his failure to timely exhaust administrative remedies because Officer Jones
designated the agency's inability to provide him relief in excess of $500—and not
untimeliness—as the reason for declining to take action on the claim. In order to prevail
on his waiver claim, however, Chelf must provide facts to demonstrate that Officer Jones
affirmatively considered Chelf's claim for damages on the merits. The subject of the
memo is identified as "Property Claim: no number assigned" and the substance of the
memo specifically notes that Chelf's personal injury claim "is being returned to you with
no action taken." Based on this language, we simply are not persuaded that Officer Jones
affirmatively considered Chelf's claim for damages on the merits.

Estoppel

Chelf argued to the district court that "if the [State] cannot follow their rules and
regulations of the ten (10) calendar day notice, K.A.R. 44-16-104[a], they should be
estopped or have waived their right to claim Chelf failed to follow the applicable K.A.R.
44-16-104[a]." Chelf went on to argue that the State's "interpretation of its own
regulations are inopposite and contradictory to the State's position that noncompliance
with the ten (10) calendar day requirement extinguishes the plaintiff's claim."

A party asserting equitable estoppel bears the burden to establish the following
elements, each of which are necessary to prevail on such a claim: (1) the party was
induced to believe certain facts as a result of another person's acts, representations,
admissions, or silence when that person was under a duty to speak; (2) the party relied
and acted upon those facts; and (3) the party would be prejudiced if the other person were
allowed to deny the existence of those facts. Fleetwood Enterprises v. Coleman Co., 37
Kan. App. 2d 850, 865, 161 P.3d 765 (2007) (citing Rockers v. Kansas Turnpike
Authority, 268 Kan. 110, 116, 991 P.2d 889 [1999]). Chelf asserts that the State's actions
induced him to believe that his claim was timely filed and that he would be prejudiced (in
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the form of a procedural bar to filing civil suit) if the State were permitted to take a
position inconsistent with that taken when he submitted the claim. But Chelf does not
provide any facts to establish any of the essential elements necessary to prevail on a
claim of estoppel: that Officer Jones was silent while under a duty to speak, that Chelf
relied and acted on any action, representation, or admission by Officer Jones, and that
Chelf's administrative claim would have been filed in a timely manner but for actions,
representations, or admissions made by Officer Jones.

Instead of equitable estoppel, the substance of Chelf's assertions—that the State's
"interpretation of its own regulations are inopposite and contradictory to the State's
position that noncompliance with the ten (10) calendar day requirement extinguishes the
plaintiff's claim"—appear to rely on principles of quasi-estoppel. While other forms of
estoppel require proof of a false representation and proof of detrimental reliance on that
false representation, quasi-estoppel does not. The Kansas Supreme Court first introduced
the concept of quasi-estoppel in Powers v. Scharling, 76 Kan. 855, 859, 92 Pac. 1099
(1907):

"It is a familiar and well-settled principle that one who with full knowledge of the facts
accepts the benefits of a void judicial sale is thereby precluded from questioning its
validity. [Citations omitted.] Whether the principle is described as equitable estoppel,
quasi-estoppel, waiver, ratification, election, or as a requirement of consistency in
conduct, is not very important. It is really but an application of the homely proverb that
one may not eat his cake and have it too."

In other words, quasi-estoppel "involves an assertion of rights inconsistent with past
conduct, silence by those who ought to speak, or situations wherein it would be
unconscionable to permit a person to maintain a position inconsistent with one in which
[the person] has acquiesced." Harrin v. Brown Realty Co., 226 Kan. 453, 458-59, 602
P.2d 79 (1979).

18

Given these parameters, we find no merit to Chelf's claim of quasi-estoppel. First,
Chelf has not asserted any facts to demonstrate the State's current position—that Chelf's
administrative claim was untimely—is inconsistent with Officer Jones' earlier response to
Chelf's administrative claim. Second, there is no evidence that Officer Jones was silent
while under a duty to speak. Third, and because there is no evidence that the State's
current position is inconsistent with one taken in the past, denying Chelf's claim of quasi-
estoppel in this case is not unconscionable.

Futility

Noticeably different from principles of waiver and estoppel, Kansas courts also
recognize a judicially created equitable exception to exhaustion when the administrative
remedies available are inadequate or compliance with them would serve no purpose. In re
Pierpoint, 271 Kan. at 623. In Pierpoint, an inmate made two requests for assistance of
counsel at a disciplinary hearing, both of which were denied. The inmate subsequently
filed a K.S.A. 60-1501 petition without requesting an agency hearing, and the Kansas
Department of Corrections responded by claiming that the inmate had failed to exhaust
his administrative remedies. The court found that, under these circumstances, there was
no reason to believe that another request for the presence of counsel would have yielded a
different result. The court held the inmate was not required to exhaust his administrative
remedies and noted that "[e]xhaustion of administrative remedies is not required when
administrative remedies are inadequate or would serve no purpose." 271 Kan. 620, Syl. ¶
2.

Citing Pierpont, Chelf argued to the district court that exhaustion was not required
in this case because the reason given by Officer Jones for declining to take action on his
claim—that agency was unable to provide relief in excess of $500—establishes that even
if he had filed a timely claim, it would have served no purpose because the result would
have been the exact same. We find no merit to this argument, primarily because the
19

underlying premise upon which it relies effectively invalidates K.A.R. 44-16-104a, which
provides that any claim for personal injury, regardless of whether the request for relief is
more or less than $500, must be submitted by the inmate to the facility within 10 calendar
days of the claimed personal injury.

Procedural Due Process

As he did with the district court, Chelf asserts here that applying the deadline set
forth in K.A.R. 44-16-104a to the facts presented in this case deprives him of the right to
procedural due process guaranteed under the United States and Kansas Constitutions. The
crux of Chelf's procedural due process claim is not the fact that the exhaustion deadline
for personal injury claims changed from no deadline to 10 days, but that the State failed
to provide him with adequate notice of the new deadline before that deadline expired. In
summarily dismissing Chelf's claim, the district court incorporated by reference the legal
analysis and authority set forth in the State's brief.

When presented with a procedural due process claim, the court first must
determine whether a protected liberty or property interest is involved. Winston v. Kansas
Dept. of SRS, 274 Kan. 396, 409, 49 P.3d 1274, cert. denied 537 U.S. 1088 (2002). To
that end, Kansas courts have long held that the right to pursue a remedy for injuries
sustained by the tortious act of another is a fundamental constitutional right. Ernest v.
Faler, 237 Kan. 125, 131, 697 P.2d 870 (1985). Thus, we move on to the next step in
analyzing a procedural due process claim, which requires us to examine the nature and
extent of the process due. The basic elements of procedural due process are notice and an
opportunity to be heard at a meaningful time and in a meaningful manner. Winston, 274
Kan. at 409.

In this case, the parties agree that prior to June 1, 2007, an inmate could present a
personal injury claim to the prison at any time after sustaining the injury for purposes of
20

exhausting administrative remedies. The parties further agree that after K.A.R. 44-16-
104a became effective on June 1, 2007, the inmate was required to present such a claim
within 10 days of sustaining the injury in order to properly exhaust his administrative
remedies. Chelf claims he did not know prior to filing his personal injury claim on
February 14, 2008, that the Department of Corrections had adopted a 10-day deadline for
filing such a claim. Be that as it may, "[i]gnorance of the law excuses no one; not because
courts assume everyone knows the law, but because this excuse is one all will plead and
no one can refute." Dezaio v. Port Authority of NY and NJ, 205 F.3d 62, 64 (2d Cir.
2000); see also State ex rel. Murray v. Palmgren, 231 Kan. 524, 536, 646 P.2d 1091
(1982) ("'Ignorance of the law is no excuse.'"); Flott v. Wenger Mixer Manufacturing Co.,
189 Kan. 80, 88, 367 P.2d 44 (1961) (stating that parties in litigation are presumed to
know the law). Based on the facts presented and the applicable law, we find applying the
deadline set forth in K.A.R. 44-16-104a to Chelf did not deprive him of the right to
procedural due process.

Affirmed.