Bartling v. Cline

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NOT DESIGNATED FOR PUBLICATION

No. 113,054

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ADAM BARTLING,
Appellant,

v.

SAM CLINE et al.,
Appellees.


MEMORANDUM OPINION

Appeal from Butler District Court; JOHN E. SANDERS, judge. Opinion filed April 29, 2016.
Reversed and remanded.

Adam Bartling, appellant pro se.

Michael J. Smith, of Kansas Department of Corrections, of El Dorado, for appellees.

Before STANDRIDGE, P.J., BUSER and SCHROEDER, JJ.

BUSER, J.: Adam Bartling, an inmate at the El Dorado Correctional Facility
(EDCF), appeals the summary dismissal of his pro se K.S.A. 60-1501 petition. Bartling
alleges the Hutchinson Correctional Facility (HCF), where he was previously
incarcerated, deprived him of personal property without due process of law. We reverse
the district court's summary dismissal and remand for further proceedings.




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FACTUAL AND PROCEDURAL BACKGROUND

Bartling possessed items of personal property while incarcerated at HCF. On or
about March 28, 2010, Bartling was transferred from HCF to EDCF. A few days later, on
April 7, 2010, Bartling filed a property claim (2010 property claim) with HCF prison
authorities. In the claim, Bartling alleged the several items of personal property belonging
to him were not transferred from HCF to EDCF when Bartling was transported to EDCF.
Although there are several documents attached to the affidavit Bartling filed with the
district court in which staff at HCF and EDCF acknowledge the 2010 property claim
Bartling filed with HCF officials, the actual property claim document is not in the record
on appeal.

On July 30, 2010, an EDCF officer responded in writing to a written
communication from Bartling inquiring into the status of his 2010 property claim. The
EDCF officer acknowledged that on July 27, 2010, Bartling had written EDCF prison
officials complaining about "property claims with no responses." In particular, the prison
official wrote: "I am also aware that you have filed a property claim against [HCF] and
perhaps have not received an official response." (Emphasis added.) The EDCF official
continued:

"Property claim status—I have communicated to Ms. Emery who advises that
HCF has the property claim but [has] not taken action on it yet. You have been advised
several times of HCF's position on the property claim but I will advise you once again.
HCF is alleging that your property was received by circumventing the system and that
most of the items are not being returned to you because you should not have been issued
them to begin with. Your claim is with them and not with EDCF and it is difficult for
your counselor to effectively assist you. Communication from one party to another and
back again loses much in the translation and that is why we stated that it would be better
for you to deal directly with HCF in written communication so you know exactly what is
going on. I have however, emailed them with regard to the status of your property claim
against them and will advise you of any answer I receive.
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"Please know that we experience much the same frustration. We cannot move
another facility to action any faster and are in the position of waiting on them for
disposition of the matter. I will advise you of any information I receive from my email."
(Emphasis added.)

Over the next 3 years, Bartling repeatedly attempted to gain relief regarding his
2010 property claim filed against HCF through the grievance procedure at EDCF. On
May 21, 2013, an EDCF officer informed Bartling:

"I am responding to your grievance filed in regards to [the 2010] property claim against
HCF [which alleges] I did not resolve the issue. I do understand your frustrations, but the
fact of the matter is, the claim was against HCF and EDCF had no part on the decision
making and still doesn't. You have been advised many times to formally write HCF in
regards to this issue or the lawyer whom [sic] was working your case at that time. I have
found documentation where you have been notified in regards to your property and its
removal.
"EDCF has no involvement in the decision making on this situation, the claim was
against HCF and the decision was made by HCF."

Although this written communication states that a "decision was made" by HCF
regarding his 2010 property claim, there is no evidence in the record to support this
statement. In fact, we find the evidence in the record supports an inference that Bartling
never received a final determination from HCF resolving his 2010 property claim.

Utilizing the grievance procedure within the institution, Bartling appealed from
the EDCF's refusal to become involved in helping him to resolve his 2010 property claim.
On May 31, 2103, the EDCF warden refused to take action on his grievance. On June 17,
2013, the Secretary of Corrections also refused to take action, finding the "response
rendered to the inmate by staff at the facility is appropriate."

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At some point prior to October 25, 2013, Bartling was directed by prison staff to
refile his 2010 property claim against HCF. Bartling complied with this directive on
October 25, 2013 (2013 property claim). In the 2013 property claim, which is in the
record, Bartling alleged he was deprived of his personal property "[b]etween 2/5/08 and
1/10/11" in "various locations at HCF: clinic, property, BI, B2, A1-2." Bartling asserted
HCF was "negligent due to all missing items being under the control of staff when loss
occurred." The property claim listed the items taken as six cans of Gatorade, one watch,
one set of headphones, one pair of shower shoes, four magazines, and one pen, totaling
$93.49.

On December 19, 2013, an HCF officer responded to the 2013 property claim:

"In this property claim you have not presented any information on how the staff of
HCF . . . is negligent in the handling of your property. According to KAR 44-16-102 you
will find that a claim shall be filed within 15 working days of the discovery of the Loss.
Furthermore it also states that the Warden shall not be required to accept any claim at all
if both of the following conditions are met:
"1. The claim is submitted later than one year and one day after the date of loss,
regardless of when the loss was recovered.
"2. The inmate could have discovered the loss by exercising reasonable effort to
know the status of the inmate's property and money. . . .
"With this information this claim is being returned to you without being investigated and
will not be investigated in the future."

On March 4, 2014, Bartling filed this K.S.A. 60-1501 petition in Butler County
District Court. Bartling itemized the missing property as set forth in the 2013 property
claim and asked for a hearing, alleging "this is a case of mistreatment and denial of
adequate protections" done with an intent to deny him "his property without due process."
On April 24, 2014, the district court summarily dismissed the petition because the
"[s]tatute of limitations has run on [Bartling]'s property claims." Bartling appeals.
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SUMMARY DISMISSAL OF THE K.S.A. 60-1501 PETITION

Bartling appeals the district court's summary dismissal of his K.S.A. 60-1501
petition. Bartling asserts "[t]he original property claim of April 7, 2010, was never
processed, throughout the time-frame of this case, prison investigators/staff met with
inmate several times to agree on ways and methods of payments/property replacements to
resolve the claim, none of them were followed through with." The State counters that "the
district court was correct when it determined that [Bartling's 2013] property claim was
untimely" based on the 1 year and 1 day time limitation for an inmate to internally report
to the institution that he or she suffered a loss of personal property. Alternatively, the
respondents assert that, although it did not do so, the district court could have summarily
dismissed Bartling's K.S.A. 60-1501 petition as untimely based on the 1 year time
limitation for filing habeas actions such as this.

When determining whether a K.S.A. 60-1501 petition states a claim for relief,
district courts examine the petition and the contents of any attachments to determine if
the petition alleges "shocking and intolerable conduct or continuing mistreatment of a
constitutional nature." Schuyler v. Roberts, 285 Kan. 677, 679, 175 P.3d 259 (2008). The
district court is entitled to summarily dismiss a K.S.A. 60-1501 petition "[i]f it plainly
appears from the face of the petition and any exhibits attached thereto that the plaintiff is
not entitled to relief in the district court." K.S.A. 2015 Supp. 60-1503(a).

Appellate courts apply de novo review to a district court's summary denial of a
K.S.A. 60-1501 claim. Johnson v. State, 289 Kan. 642, 649, 215 P.3d 575 (2009). We are
required to accept as true the allegations in the petition to determine whether the facts
alleged and the reasonable inferences that can be drawn from them state a claim for relief.
Schuyler, 285 Kan. at 679; see also Hill v. Simmons, 33 Kan. App. 2d 318, 320, 101 P.3d
1286 (2004) (court must determine whether a claim is stated on any possible theory, not
just the theory asserted by petitioner). On appeal, our review of the district court's ruling
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is unlimited. See Johnson, 289 Kan. at 648 (summary dismissal); State v. Meza, 38 Kan.
App. 2d 245, 247, 165 P.3d 298 (statute of limitations), rev. denied 285 Kan. 1176
(2007).

In resolving this appeal, we focus our attention on the rationale given by the
district court for its summary dismissal—that the "[s]tatute of limitations has run on
[Bartling]'s property claims." The respondents argue this judicial conclusion is "no
surprise" because K.A.R. 44-16-102 provides that a property claim "must be made within
one year of the date of the loss. The claim was untimely." Although we question whether
the 1-year time period referenced in K.A.R. 44-16-102 is properly considered a statute of
limitation, it appears the district court characterized it in this way.

Administrative regulations have the force and effect of law. K.S.A. 77-425. The
governing administrative regulation cited by the State, and presumably the basis for the
district court's ruling, K.A.R. 44-16-102, states:

"(a) Each inmate shall report every loss of or damage to the inmate's own
property immediately. In reporting property damage or loss, inmates shall use applicable
avenues of redress as established by internal management policies and procedures. These
procedures shall be strictly followed.
"(b) The facility warden shall not be required to accept any property loss or
damage claim unless it is made within 15 working days of the discovery of the loss. The
warden shall not be required to accept any claim at all if both of the following conditions
are met:
(1) The claim is submitted later than one year and one day after the date of the
loss, regardless of when the loss was discovered.
(2) The inmate could have discovered the loss by exercising reasonable effort to
know the status of the inmate's property and money." (Emphasis added.)

As noted earlier, this regulation was cited by an HCF official to justify the institution's
refusal to conduct any type of investigation into the alleged property loss.
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There is no dispute here that the 2013 property claim was untimely based on the 1
year and 1 day time limitation for an inmate to internally report to the institution that he
or she suffered a loss of personal property. Significantly, however, Bartling's 2013
property claim reiterates many of the property claim allegations in his 2010 property
claim. In fact, on appeal, Bartling refers to the 2013 property claim as the "refiled"
property claim of 2010. Moreover, the respondents acknowledge Bartling's coupling of
the 2010 property loss with the 2013 property claim. Respondents state: "Accepting
[Bartling]'s premise as true, some undescribed personal property may have failed to be
transferred from HCF to EDCF in March, 2010. [Bartling] was aware of the loss and
asserts that he followed the appropriate policy by submitting a property claim form."

We agree with the respondents' characterization of Bartling's current claim. The
crux of Bartling's complaint is that in 2010, upon learning that some of his personal
property was not transferred from HCF to EDCF, he filed the 2010 property claim using
appropriate procedures but never received a final determination from HCF about his
claim. As presented by Bartling, this failure by prison authorities ultimately resulted in
the "refiling" of the 2010 property claim in 2013 and later, the filing of the present K.S.A.
60-1501 petition.

The respondents challenge Bartling's claim that the 2010 property claim and the
2013 property claim are merely two components of a "three-year periodic inquiry about
the HCF claim." They assert "[t]he record is silent as to what response HCF made to any
inquiries during the three years." Notwithstanding the respondents' assertion, they readily
acknowledge the written communication dated July 30, 2010, in which an EDCF officer
confirmed that "HCF has the property claim but [has] not taken action on it yet." The
officer further stated that he had emailed HCF "with regard to the status of your property
claim against them and [that he would] advise [Bartling] of any answer [he received]."
The officer concluded that, just like Bartling, EDCF was "in the position of waiting on
[HCF] for disposition of the matter."
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In our view, the July 30, 2010, communication supports Bartling's allegation that,
as of July 30, 2010, EDCF officials were aware HCF had failed to provide Bartling with
an official response regarding the status of its investigation or a decision on the 2010
property claim. And our review of the documents in the record dated after July 30, 2010,
reveals no HCF correspondence denying Bartling's 2010 property claim. Accordingly, the
2010 property claim was still pending when Bartling filed the 2013 property claim based
on the same factual premise: that he was deprived of his personal property when he was
transferred from HCF to EDCF. Given Bartling's assertion that prison officials
affirmatively directed him in 2013 to "refile" his 2010 property claim in order to revive
the inquiry into his lost property and, in turn, induce a decision on the underlying merits,
we question the district court's summary dismissal of Bartling's K.S.A. 60-1501 petition
based on the inmate's failure to comply with K.A.R. 44-16-102's requirement that a
property claim must be filed within 1 year and 1 day of the property loss.

Because Bartling is a pro se plaintiff, we are required to construe his pleadings
liberally. See Bruner v. State, 277 Kan. 603, 605, 88 P.3d 214 (2004). A liberal reading
of Bartling's K.S.A. 60-1501 petition suggests that he intended his 2013 property claim to
allege that he was deprived of his property in 2010 without being provided the requisite
procedural due process to which he was constitutionally entitled and, despite exhausting
his administrative remedies, his claim has not yet been resolved. Given his allegations,
we find that Bartling was entitled to a hearing on his petition for relief filed pursuant to
K.S.A. 60-1501. Bartling complied with K.A.R. 44-16-102 by filing a property claim in
2010 shortly after the alleged property loss and the 2010 property claim has not yet been
finally resolved; thus, we construe the 2013 property claim as a request to finally
determine the unresolved matter of Bartling's 2010 property loss. Construed this way, and
based on the unique facts presented in this particular case, we are persuaded the district
court erred in concluding that "it plainly appears from the face of the petition and any
exhibits attached thereto that the plaintiff is not entitled to relief in the district court."
K.S.A. 2015 Supp. 60-1503(a). Accordingly, we reverse the decision of the district court
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to summarily dismiss Bartling's petition and remand the matter for further proceedings
under K.S.A. 60-1501.

Before closing, we briefly address the respondent's argument that there is an
alternative basis to justify dismissal of the case and affirm the district court's decision.
Specifically, the respondents claim the district court could have dismissed Bartling's
K.S.A. 60-1501 petition for relief as untimely because it was filed more than 30 days
after HCF denied his 2013 property claim. Based on the limited information in the
appellate record and the lack of any factual findings or legal conclusions by the district
court on this issue, we will not address respondent's argument that there is an alternative
basis to justify dismissal of the case and affirm the district court's decision.

Reversed and remanded.