Burch v. Bruffett

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NOT DESIGNATED FOR PUBLICATION

No. 113,607

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

TIMOTHY J. BURCH,
Appellant,

v.

KARI BRUFFETT, Secretary of the
KANSAS DEPARTMENT FOR AGING AND DISABILITY SERVICES,
Appellee.


MEMORANDUM OPINION

Appeal from Pawnee District Court; JOHN E. SANDERS, judge. Opinion filed November 25, 2015.
Affirmed.

Timothy J. Burch, appellant pro se.

Michele E. Kraak, litigation counsel, of Kansas Department for Aging and Disability Services,
for appellee.

Before BRUNS, P.J., STANDRIDGE, J., and BURGESS, S.J.

Per Curiam: Timothy J. Burch appeals the district court's summary dismissal of
his petition for writ of mandamus. He argues that the district court erred when it found
that his petition did not identify a clearly defined duty, a necessary element of mandamus
relief. He also challenges the district court's comparison of his situation to that of a
member of the United States military.



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FACTS

Burch is civilly committed to the Kansas Sexual Predator Treatment Program
(SPTP) at Larned State Hospital (Larned). On March 31, 2012, Burch filed two
grievances with the staff at the SPTP. The first grievance challenged an SPTP rule
change requiring all patients who take medication to open their mouths for an SPTP staff
member for purposes of verifying that the patient has swallowed the medication
dispensed. Burch requested the rule be changed because such a search is unreasonable,
degrading, and inhumane. The SPTP staff denied Burch's request to change the rule. In
his second grievance, Burch challenged the decision to deliver only peanut butter and
jelly sandwiches to his room at meal time instead of regular meal trays. Burch claimed
that he could not bring himself to go to the dining room to eat because it was "noisy" as
well as "repulsive and inhumane." Burch's request to have regular meal trays delivered to
his room was denied.

Burch filed two more grievances on April 7, 2012. His first grievance on that date
claimed the SPTP rule prohibiting him from purchasing, possessing, or owning over-the-
counter medication violated his constitutional rights under the Fourteenth Amendment to
the United States Constitution. In Burch's other April 7 grievance, he complained that he
was forced to live in an excessively bright environment due to an SPTP rule that all lights
remain on at all times. He requested that the lighting be turned off or reduced between
10 p.m. and 6 a.m. Both of these April 7, 2012, grievances were denied.

On May 11, 2012, Burch filed four requests for administrative hearings pursuant
to K.S.A. 75-3306 to address each of the grievances discussed above. On June 25, 2012,
he filed a petition for writ of mandamus. In it, Burch alleged that he was being harmed as
a result of the Secretary of the Kansas Department of Social and Rehabilitation Services'
(now the Kansas Department for Children and Families [DCF]) failure to comply with
the requirement set forth in K.S.A. 2014 Supp. 77-511(a)(1) that DCF acknowledge his
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requests for hearings within 30 days. As relief, Burch requested the district court to order
the Secretary of DCF to comply with his or her duties under K.S.A. 75-3306 and K.S.A.
2014 Supp. 77-511 related to his requests for hearings. Further, Burch requested the
district court to leave the proceedings in the case open until the requested administrative
hearings were completed in order to supply a prompt remedy for any additional failures
to follow a "ministerial duty" concerning the hearings.

Shawn Sullivan, the Secretary of the Kansas Department of Aging and Disability
Services, was substituted as the respondent in the action pursuant to K.S.A. 2014 Supp.
60-225(d). On August 2, 2012, Sullivan filed a motion to dismiss Burch's petition for
failure to state a claim upon which relief could be granted. In its order ruling on the
motion to dismiss, the district court liberally construed Burch's petition and analyzed it
both as a petition for writ of mandamus and as a petition for writ of habeas corpus. The
court ultimately concluded that Burch failed to state a claim for which relief could be
granted under either construction. In construing the petition as one requesting mandamus
relief, the court found that (1) Burch failed to identify any clearly defined duty imposed
by law that the defendant failed to perform and (2) an adequate remedy already existed
because Burch could pursue his claims through a habeas corpus petition under K.S.A.
2014 Supp. 60-1501.

In construing Burch's petition as one filed pursuant to K.S.A. 2014 Supp. 60-1501,
the district court found Burch failed to allege any shocking or intolerable conduct or
continuing mistreatment of a constitutional nature. In delivering this ruling, the court
noted that some of the rules and procedures Burch complained about were reminiscent of
what members of the United States military experience on a daily basis.




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ANALYSIS

Burch presents two issues in his appeal from the district court's decision to
summarily deny his petition for writ of mandamus. First, he claims the court erred in
finding that his petition did not identify a clearly defined duty. Second, he challenges the
court's comparison of his situation to that of a member of the United States military.

"Whether a district court erred by granting a motion to dismiss for failure to state a
claim is a question of law subject to unlimited review." Martell v. Driscoll, 297 Kan. 524,
529, 302 P.3d 375 (2013). This court must assume the facts alleged in the plaintiff's
petition are true, as well as any reasonable inferences drawn from those facts. Dismissal
is improper if those facts or inferences state a claim based on the plaintiff's theory or any
other possible theory. Cohen v. Battaglia, 296 Kan. 542, 546, 293 P.3d 752 (2013).

After filing four grievances with the staff at the SPTP, Burch submitted to DCF
four written requests for administrative hearing pursuant to K.S.A. 75-3306 to challenge
the staff's decisions to deny him relief on those grievances. Burch filed a petition for writ
of mandamus 45 days after submitting his requests for hearing. In the petition, Burch
asked the court to order DCF to comply with the clearly identified duty set forth in
K.S.A. 2014 Sup. 77-511(a)(1), which required DCF to acknowledge his requests for
hearings within 30 days. The district court summarily dismissed Burch's petition based on
a finding that mandamus relief would be improper given Burch failed to identify any
clearly defined duty and a finding that Burch had an alternative remedy at law under
K.S.A. 2014 Supp. 60-1501.





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1. Mandamus

a. Clearly defined duty

Mandamus is an extraordinary remedy that may be used only in rare cases and as a
last resort. Bohanon v. Werholtz, 46 Kan. App. 2d 9, 12, 257 P.3d 1239 (2011). It is only
available for the purpose of compelling performance of a "'clearly defined official duty.'"
Collins v. Hoeme, 40 Kan. App. 2d 93, 101, 189 P.3d 566 (2008), rev. denied 287 Kan.
765 (2009). Further, it is only appropriate in cases where the petitioner has no other
adequate remedy at law. See Bohanon, 46 Kan. App. 2d at 12-13. The petitioner bears the
burden of showing he or she has a right to mandamus relief. Comprehensive Health of
Planned Parenthood v. Kline, 287 Kan. 372, 410, 197 P.3d 370 (2008).

In its order summarily dismissing Burch's petition for mandamus relief, the district
court found Burch had failed to establish that DCF had a clearly defined duty to change
the institutional rules he challenges. But the district court misconstrues Burch's request
for mandamus relief. Burch is not seeking to compel DCF to comply with his requests to
change the institutional rules. Instead, Burch's petition seeks to compel DCF to comply
with K.S.A. 2014 Supp. 77-511(a)(1), which requires DCF to acknowledge his requests
for hearings within 30 days. Thus, we conclude Burch successfully established that DCF
had a clearly defined duty to comply with the time deadlines for those particular hearing
requests governed by K.S.A. 2014 Supp. 77-511(a)(1). Notwithstanding our finding in
this regard, however, and for the reasons stated below, we affirm the district court's
decision to dismiss Burch's petition for mandamus relief as being right for the wrong
reason. See Hockett v. The Trees Oil Co., 292 Kan. 213, 218, 251 P.3d 65 (2011) (if
district court reaches the correct result, its decision will be upheld even though it relied
upon the wrong ground or assigned erroneous reasons for its decision).

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In support of his claim that the district court erred in finding his petition did not
seek to compel the performance of a clearly defined official duty, Burch cites to K.S.A.
75-3306(a), which was the statute that applied when Burch filed his four requests for
administrative hearing on May 11, 2012. At the time, this subsection of K.S.A. 75-3306
stated as follows:

"(a) The secretary of social and rehabilitation services, except as set forth in the
Kansas administrative procedure act and subsections (f), (g), (h) and (i), shall provide a
fair hearing for any person who is an applicant, client, inmate, other interested person or
taxpayer who appeals from the decision or final action of any agent or employee of the
secretary. The hearing shall be conducted in accordance with the provisions of the Kansas
administrative procedure act."

The K.S.A. 75-3306(i) exception referenced in subsection (a) specifically states
that DCF is not required to provide a hearing if

"(1) The department of social and rehabilitation services lacks jurisdiction of the subject
matter; (2) resolution of the matter does not require the department of social and
rehabilitation services to issue an order that determines the applicant's legal rights,
duties, privileges, immunities or other legal interests; (3) the matter was not timely
submitted to the department of social and rehabilitation services pursuant to regulation or
other provision of law; or (4) the matter was not submitted in a form substantially
complying with any applicable provision of law." (Emphasis added.) K.S.A. 75-3306(i).

In this case, Burch sought a hearing pursuant to K.S.A. 75-3006(a) so that DCF
could determine whether the following SPTP institutional rules infringed on his rights
under the United States Constitution: (1) the rule that he open his mouth for an SPTP
staff member to verify he swallowed medication dispensed; (2) the rule that permits only
peanut butter and jelly sandwiches to be delivered to his room instead of a full meal tray;
(3) the rule that prohibits him from purchasing, possessing, and owning over-the-counter
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medication; and (4) the rule that the lights remain on between the hours of 10 p.m. and
6 a.m.

Notably, however, DCF did not have the authority to determine whether the rules
Burch challenged infringed on his legal rights under the United States Constitution.
Although constitutional issues may be raised at the agency level, an agency is not
permitted to determine an applicant's constitutional rights. Constitutional issues must be
decided by the courts. Katz v. Kansas Dept. of Revenue, 45 Kan. App. 2d 877, 895, 256
P.3d 876 (2011) (citing Martin v. Kansas Dept. of Revenue, 285 Kan. 625, Syl. ¶ 5, 176
P.3d 938 [2008]), rev. denied 297 Kan. 1246 (2013). Because DCF did not have the
authority to determine whether the SPTP institutional rules infringed upon Burch's
constitutional rights, DCF was not required to provide the hearing requested by Burch.
See K.S.A. 75-3306(i) (DCF not required to provide a hearing if "resolution of the matter
does not require [DCF] to issue an order that determines the applicant's legal rights,
duties, privileges, immunities or other legal interests"). And because DCF was not
required to hold a hearing, it would be improper to grant Burch's petition for mandamus
relief in the form of an order compelling DCF to comply with various Kansas
Administrative Procedures Act time deadlines related to such a hearing.

b. Alternative ground

As an alternative ground for dismissal, the district court found that Burch had an
alternative remedy at law under K.S.A. 2014 Supp. 60-1501. The Kansas Supreme Court
has found that those confined in the SPTP may bring an action under K.S.A. 2014 Supp.
60-1501 to challenge allegedly unconstitutional acts. See Johnson v. State, 289 Kan. 642,
648, 215 P.3d 575 (2009). As the district court noted, all of Burch's underlying
complaints concern his living conditions. In all of his requests for hearings, he claimed
the issues raised in his grievances constituted violations of his rights. Based on the nature
of the claims he made in his grievances, K.S.A. 2014 Supp. 60-1501 provided an
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adequate remedy for Burch to pursue his complaints concerning his living conditions.
Thus, we agree with the district court that the existence of an adequate remedy in the law
provided an alternative basis for dismissing Burch's petition for mandamus relief.

2. K.S.A. 2014 Supp. 60-1501

After dismissing Burch's petition for mandamus relief, the district court liberally
construed and analyzed Burch's petition as one for writ of habeas corpus under K.S.A.
2014 Supp. 60-1501. The court ultimately concluded that Burch was not entitled to relief
because he had failed to allege any shocking or intolerable conduct or continuing
mistreatment of a constitutional nature. To avoid summary dismissal of a K.S.A. 2014
Supp. 60-1501 petition, the allegations must also be of shocking and intolerable conduct
or continuing mistreatment of a constitutional stature. Johnson, 289 Kan. at 648. To meet
the test of shocking and intolerable conduct, "the threshold question is whether the
behavior of the governmental officer is so egregious, so outrageous, that it may fairly be
said to shock the contemporary conscience." County of Sacramento v. Lewis, 523 U.S.
833, 847-48 n.8, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998). In reviewing SPTP policy
decisions, courts should afford deference and flexibility to SPTP's attempts to manage its
unique environment. Chubb v. Sullivan, 50 Kan. App. 2d 419, 430, 330 P.3d 423 (2014),
rev. denied 300 Kan. 1108 (2014); see Sandin v. Conner, 515 U.S. 472, 482, 115 S. Ct.
2293, 132 L. Ed. 2d 418 (1995).

The district court found that none of Burch's claims "rise to constitutional levels."
Notably, Burch does not appeal the district court's finding in this regard; instead, he
argues the district court's comparison of his living conditions to the living conditions of a
member of the armed forces was improper and allowed his petition to be viewed in the
wrong light. Burch appears to be complaining about the following portion of the district
court's decision:

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"The Court will not second-guess the authorities in matters involving normal
custodial and day-to-day matters. There is nothing atypical or unusual about petitioner's
confinement or the rules Burch complains about. Such rules all relate to maintaining
discipline, security and safety and furthering legitimate penological interests. Quite
frankly, some of the rules and procedures remind the Court somewhat of the conditions
and limitations that the fighting men and women of this country experience on a day to
day basis due to the requirements and necessities involved in military life. Rules for
safety, security, mess halls, living quarters, freedom of movement (or lack thereof) in the
military are many times much harsher and restrictive than those complained of here by
Burch. Burch is not required to eat his meals in a foxhole."

We find the district court's statements about the military are dicta. Before the court
moved to the subject of the military, it already had noted that it would not second-guess
the SPTP authorities on day-to-day matters and that there was nothing unusual about the
rules he complained about. To the extent that the court compared Burch to a member of
the military, there is no indication that the analogy was vital to the court's analysis.
Therefore, even assuming the analogy constituted an error by the court, there is no way
the error could have affected Burch's substantial rights and the error should be
disregarded. See K.S.A. 2014 Supp. 60-261.

Affirmed.