Sperry v. McKune

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NOT DESIGNATED FOR PUBLICATION

No. 119,338

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JEFFREY SPERRY,
Appellant,

v.

DAVID MCKUNE, Warden, et al.,
Appellees.


MEMORANDUM OPINION

Appeal from Leavenworth District Court; GUNNAR SUNDBY, judge. Opinion filed November 9,
2018. Affirmed.

Jeffrey J. Sperry, appellant pro se.

Fred W. Phelps, Jr., legal counsel, Kansas Department of Corrections, for appellees.

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

PER CURIAM: In September 2011, Jeffrey Sperry, an inmate at the Lansing
Correctional Facility (LCF), filed a civil lawsuit in district court seeking civil damages
from the LCF Warden, the Secretary of Corrections for the State of Kansas, and the
Kansas Department of Corrections (KDOC) (collectively, the State). In particular, Sperry
alleged that the State had exposed him to asbestos and lead paint while incarcerated at
LCF. The district court previously dismissed Sperry's lawsuit for failure to exhaust
administrative remedies. However, the Kansas Supreme Court reversed the dismissal and
remanded the lawsuit to the district court with directions to follow the summary judgment
procedure set forth in Kansas Supreme Court Rule 141 (2018 Kan. S. Ct. R. 205).
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On remand, the district court granted the State summary judgment as a matter of
law. In granting the State's motion for summary judgment, the district court noted in its
memorandum decision that Sperry had failed to controvert any of the facts asserted by the
State as uncontroverted. Accordingly, the district court deemed the State's statement of
uncontroverted facts to be admitted. As a result, the district court concluded that Sperry
had failed to come forward with evidence tending to establish that he was exposed to
dangerous environmental contaminates at LCF or that he has suffered any injury as a
result of the alleged exposure.

In the present appeal, Sperry contends that the district court erred in granting the
State summary judgment. As Sperry failed to respond to the State's motion for summary
judgment or otherwise come forward with evidence to support his allegations, we find
that it was appropriate for the district court to grant summary judgment to the State as a
matter of law. Thus, we affirm.

FACTS

The long procedural history of this case—which began in 2011—is summarized in
Sperry v. McKune, 305 Kan. 469, 470-79, 384 P.3d 1003 (2016). Significant to the
present appeal, the Kansas Supreme Court found:

"In September 2011, Jeffrey Sperry, an inmate at the Lansing Correctional
Facility (LCF), filed a lawsuit in district court seeking civil damages from the LCF
Warden, the Secretary of Corrections for the State of Kansas, and the Kansas Department
of Corrections (KDOC) (collectively, the KDOC defendants). Sperry, acting on his own
behalf, alleged he had been exposed to asbestos and lead paint while incarcerated at LCF.
After Sperry filed his lawsuit, this case's procedural path involved a series of motions to
dismiss that eventually led to this appeal. Those motions focus on the allegations in
Sperry's verified petition, which he captioned a 'Complaint.'

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"In that document, Sperry alleged that in January 2010 he first learned he had
been exposed to contaminants. He sought medical treatment in March 2010, but a 'facility
doctor examined [Sperry] and told him that there was nothing he could do for him.'
Sperry also sought 'mental health counseling,' but the 'psychologist simply told [Sperry]
that worrying would not help his condition so he should not worry about the fact that he
will become seriously ill and die prematurely due to the exposure.' To remedy these
alleged wrongs, Sperry sought an injunction ordering the KDOC defendants to treat
Sperry's current and future medical needs through medical personnel and facilities of
Sperry's choosing; an injunction ordering the KDOC defendants to remove all dangerous
environmental contaminants from LCF; a declaratory judgment that the KDOC
defendants 'knowingly and/or recklessly caused [Sperry] to be exposed to friable asbestos
and lead paint'; and monetary damages in excess of $75,000.

"As a means of obtaining this relief, Sperry alleged causes of action based on
both federal and state law. He first alleged his federal cause of action, asserting he was
entitled to redress under 42 U.S.C. § 1983 (2012) because the KDOC defendants violated
his right under the United States Constitution to be free from cruel and unusual
punishment. He then alleged several torts governed by Kansas law: negligence, battery,
breach of fiduciary duty, and outrageous conduct.

. . . .

"[Subsequently], Sperry filed an 'Amended Complaint' without any attached
documents. In many respects the 'Amended Complaint' mirrored the original 'Complaint.'
For example, Sperry again alleged that the KDOC defendants had 'refused to process' his
March 2010 grievance, lost his October 2010 grievance, and denied his November 2010
replacement grievance 'all the way through[ ] to the Secretary of Corrections.' But the
amended pleading also differed from the original in several ways. Of note, Sperry did not
specifically allege violations of state law; his jurisdictional statement was limited to 'civil
rights claims,' and he listed only a single cause of action: 'Eighth Amendment—Cruel
and Unusual Punishment.'" 305 Kan. 470-74.

On May 30, 2014, the district court dismissed Sperry's lawsuit for failure to
exhaust his administrative remedies. Although a panel of this court affirmed the district
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court's decision, the Kansas Supreme Court ultimately reversed the dismissal.
Specifically, our Supreme Court found that the district court had considered a matter
outside the pleadings in dismissing Sperry's lawsuit. Thus, our Supreme Court remanded
the case to the district court with directions to follow the summary judgment procedure
set forth in Kansas Supreme Court Rule 141. 305 Kan. at 491-92.

On July 5, 2017, the State filed a motion for summary judgment pursuant to
K.S.A. 60-256 in district court. As required by Kansas Supreme Court Rule 141, the State
set forth 13 statements of uncontroverted facts with citations to the record. In particular,
the State asserted that LCF did not expose Sperry to any "dangerous environmental
contaminants" at any point "relevant to the lawsuit." The State further asserted that
multiple analyses support the conclusion that any potential level of asbestos or lead
present in LCF was at safe levels. The State supported these factual assertions with
records, including expert reports, on the contaminant levels in the prison.

Although the district court granted Sperry an extension to August 31, 2017, to file
a response to the State's motion for summary judgment, he never filed a response, nor did
he make any effort to comply with Rule 141. Likewise, even though the district court
gave him an opportunity to do so, Sperry did not designate an expert witness regarding
his alleged exposure to lead or asbestos at LCF nor did he brief the issue of whether he
could proceed to trial without an expert witness. Instead, Sperry filed a motion for an
extension of time to file an amended petition on August 30, 2017.

On September 15, 2017, the State advised the district court that the motion for
summary judgment was ready for ruling. In response, Sperry filed a motion in district
court in which he alleged that the State had seized certain papers from his possession that
he needed to prosecute his case. He also requested that the district court stay his case and
impose contempt sanctions against the State. The State responded by advising the district
court that Sperry had violated prison regulations due to the volume of paper he was
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keeping in his possession. Furthermore, the State asserted that LCF had released Sperry's
papers to his brother, who is not in prison.

On November 30, 2017, the district court denied Sperry's request for a stay, denied
his request for sanctions, and entered summary judgment in favor of the State as a matter
of law. In its memorandum decision, the district court found that Sperry had never
designated an expert witness to support his claims. In addition, the district court pointed
out, "[t]his is a case that has been pending for six years" and "[i]t is not plausible that the
plaintiff is not yet ready to address the contentions related to his claim."

In addressing the State's motion for summary judgment, the district court found
that the State had complied with Rule 141 but that Sperry had failed to do so. As such,
the district court adopted the statement of uncontroverted facts set forth by the State in its
summary judgment motion. Accordingly, the district court concluded:

"As it has now been deemed that there are no dangerous environmental
contaminates at the Lansing Correctional Facility that could have improperly exposed
plaintiff to any such dangerous substances, and if there were such contaminates, there is
no evidence of exposure to the plaintiff while L.C.F., and further that if exposed, no
evidence that plaintiff has suffered any disease or injury as a result of said exposure, the
claim of plaintiff that his 8th [A]mendment rights were violated due to improper
exposure to claimed dangerous substances fails, and thus the plaintiff's cause of action
should be and is hereby denied."

On December 15, 2017, Sperry filed a motion to alter or amend judgment, which
the district court denied. Thereafter, Sperry timely filed a notice of appeal.




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ANALYSIS

The sole issue presented on appeal is whether the district court erred in granting
the State's motion for summary judgment. Where there is no factual dispute, our review
of an order regarding summary judgment is de novo to determine whether the moving
party is entitled to summary judgment as a matter of law. See Martin v. Naik, 297 Kan.
241, 246, 300 P.3d 625 (2013); see also Stewart Title of the Midwest v. Reece & Nichols
Realtors, 294 Kan. 553, 557, 276 P.3d 188 (2012). Here, there is no factual dispute
because Sperry failed to respond to the State's statement of uncontroverted facts and they
were adopted by the district court. See Lumry v. State, 305 Kan. 545, 566, 385 P.3d 479
(2016) ("'a non-movant's failure to respond to a motion for summary judgment . . .
constitutes an admission . . . that there are no disputed issues of genuine fact warranting a
trial . . . .'").

The well-known standard to be applied in considering summary judgment motions
was reiterated in Patterson v. Cowley County, Kansas, 307 Kan. 616, 621, 413 P.3d 432
(2018), as follows:

"'"Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as
a matter of law. The trial court is required to resolve all facts and inferences which may
reasonably be drawn from the evidence in favor of the party against whom the ruling is
sought. When opposing a motion for summary judgment, an adverse party must come
forward with evidence to establish a dispute as to a material fact. In order to preclude
summary judgment, the facts subject to the dispute must be material to the conclusive
issues in the case. On appeal, we apply the same rules and when we find reasonable
minds could differ as to the conclusions drawn from the evidence, summary judgment
must be denied."' [Citation omitted.]"


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A review of the record reveals that Sperry asserted various claims against the State
arising out of his alleged exposure to toxic materials at LCF. Specifically, Sperry
predicated each of his claims on his alleged exposure to dangerous levels of asbestos and
lead paint. However, by failing to respond to the State's motion for summary judgment,
the district court deemed Sperry had admitted the following facts:

"6. As an inmate incarcerated in a Kansas correctional facility, in accord with his
constitutional rights, Plaintiff has access to full medical care and treatment by virtue of a
contract existing between the Kansas Department of Corrections and Corizon, Inc. . . .

"7. There are no dangerous environmental contaminants at LCF nor have there
been at any time relevant to this lawsuit. . . .

"8. Specifically, there is 'NO significant amount of lead noted in any sample
collected and tested' at LCF. . . .

"9. As to asbestos at LCF, '[a]ll samples were below the clearance standard of .01
f/cc.' . . .

"10. Testing showed no Environmental Protection Agency standards regarding
asbestos were violated at LCF. . . ."

In support of each of these facts, the State cited to precise references in the record
as required by Rule 141(a)(2).

Through his inaction, Sperry admitted that the State did not expose him to unsafe
levels of asbestos and/or lead paint at LCF. Moreover, he did not come forward with an
expert witness to support the allegations regarding exposure to unsafe levels of asbestos
and/or lead paint. Similarly, he did not come forward with an expert witness to establish a
causal link between the alleged exposure and any medical condition that he may have or
damages that he may have suffered. Accordingly, Sperry failed to come forward with
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sufficient evidence to support his claims for relief, and the district court appropriately
granted summary judgment to the State as a matter of law.

Affirmed.