Spry v. Pryor

1

NOT DESIGNATED FOR PUBLICATION

No. 119,573


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

GEORGE SPRY,
Appellant,

v.

REX PRYOR, Warden,
Appellee.


MEMORANDUM OPINION

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed February
15, 2019. Affirmed.

Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.

Sherri Price, legal counsel, of Lansing Correctional Facility, and Roger W. Slead, of Horn,
Aylward & Bandy, LLC, of Kansas City, Missouri, for appellee.

Before POWELL, P.J., ATCHESON and GARDNER, JJ.

PER CURIAM: The Leavenworth County District Court dismissed the habeas
corpus petition of George Spry, an inmate at the state prison in Lansing, alleging
inadequate medical care because it replicated the claims he had made and lost in earlier
petitions. Spry has appealed and argues the district court improperly applied res judicata
as a bar to his petition. On the particular facts presented, we find no error and affirm the
district court.

2

In 2012, Spry was attacked in the prison and suffered serious injuries requiring his
hospitalization. During that treatment, doctors discovered Spry had a dilated aorta. Spry
had surgery in 2013 to fix the aorta. As we understand the record, Spry requires
continued medication and periodic diagnostic testing because of potentially progressive
coronary problems. In 2013 and 2014, Spry filed petitions under K.S.A. 60-1501
challenging his medical care as constitutionally inadequate and, thus, a violation of the
Eighth Amendment to the United States Constitution. Deliberate indifference of prison
officials to an inmate's serious medical needs amounts to cruel and unusual punishment
under the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50
L. Ed. 2d 251 (1976); Darnell v. Simmons, 30 Kan. App. 2d 778, 780, 48 P.3d 1278
(2002).

The gist of Spry's claims in those petitions concerned the choice of medication and
monitoring for his coronary condition rather than the denial of care. He also alleged
prison personnel had delayed taking him for some follow-up care. The evidence indicated
that Spry eventually received that care. He also asserted several other complaints. The
district court considered those petitions together and denied Spry relief. The district court
found nothing rising to the level of deliberate indifference to Spry's medical needs. The
record we have suggests Spry did not appeal the district court's ruling.

In 2015, Spry filed this 60-1501 petition and has alleged essentially the same
complaints about his continuing care for the coronary condition. The lawyer representing
Rex Pryor, the warden of the Lansing Correctional Facility and thus the named
respondent in a 60-1501 action, asserted the claims were barred by res judicata. The
district court dismissed the petition for that reason. Spry has appealed. On appeal, Spry
challenges only the application of res judicata and alleges no other grounds for reversal.

Basically, res judicata prohibits a party from bringing claims based on the same set
of facts against the same adverse party in successive legal actions when the first action
3

has been resolved on the merits. Cain v. Jacox, 302 Kan. 431, 434, 354 P.3d 1196 (2015);
Estate of Belden v. Brown County, 46 Kan. App. 247, 259, 261 P.3d 943 (2011) ("[R]es
judicata prohibits a plaintiff from filing a successive suit against a defendant based either
on factually related claims omitted from an earlier suit or on claims actually asserted and
lost on a final judgment on the merits in the earlier suit."). The Kansas Supreme Court
tersely stated the grounds for invoking res judicata this way: "(1) same claim; (2) same
parties; (3) claims were or could have been raised; and (4) a final judgment on the
merits." Winston v. Kansas Dept. of SRS, 274 Kan. 396, 413, 49 P.3d 1274 (2002).
Whether res judicata bars a legal action presents a question of law, subject to unlimited
review on appeal. Cain, 302 Kan. 431, Syl. ¶ 1.

The Kansas appellate courts have applied res judicata to 60-1501 actions
successively raising repetitive legal challenges. See Anderson v. Anderson, 214 Kan. 387,
393, 520 P.2d 1239 (1974) (recognizing application of res judicata in 60-1501 action
brought by parent challenging custody of minor child); Bohanon v. Cline, No. 114,302,
2016 WL 4585091, at *3 (Kan. App. 2016) (unpublished opinion) (recognizing
applicability of doctrine generally to 60-1501 actions but declining to apply on facts of
case); Hunt v. Roberts, No. 99,255, 2008 WL 4239031, at *2 (Kan. App. 2008)
(unpublished opinion) (recognizing and applying doctrine); Bankes v. Bruce, No. 91,673,
2004 WL 1542515, at *1 (Kan. App. 2004) (unpublished opinion) (recognizing and
applying doctrine). Other courts have specifically applied res judicata to successive
prisoner claims for constitutionally inadequate medical care. See Goodman v. May, No.
2:17-CV-02266, 2018 WL 4007248, at *4 (S.D. W. Va. 2018) (unpublished opinion)
("Because the plaintiff's Eighth Amendment deliberate indifference claims are grounded
in identical facts to the claims which were adjudicated on the merits by the state courts
against the same parties, res judicata should be applied herein.").

Having reviewed the record and the particulars of Spry's 60-1501 petition with a
liberal interpretation of the claims, we find that he is raising substantially the same
4

complaints based on the same facts that he litigated in his earlier petitions. The district
court entered judgments on the merits against Spry in a consolidated disposition of those
petitions. Pryor, therefore, correctly asserts that the requirements for invoking res judicata
as a defense to Spry's current petition have been met. In turn, the district court properly
relied on res judicata to dismiss the petition.

In closing, however, we mention that res judicata should be carefully applied when
the parties have an ongoing relationship, such as prisoners in state custody have with the
state agents holding them. If the conditions of a prisoner's confinement have materially
changed following the denial of a 60-1501 petition, a new petition based on the changed
conditions likely would not be barred by res judicata. See Anderson, 214 Kan. 387, Syl. ¶
5; In re A.S., 12 Kan. App. 2d 594, Syl. ¶ 3, 752 P.2d 705 (1988) ("Once a change of
circumstances has been shown, a second proceeding to terminate parental rights is not
barred by principles of res judicata or collateral estoppel.").

Affirmed.