Opinion
No. 108,030.
2012-10-5
Wayne L. MORRIS, Appellant, v. Ray ROBERTS, Secretary of Corrections, Appellee.
Appeal from Leavenworth District Court; Dan K. Wiley, Judge. Wayne L. Morris, appellant pro se. Matthew J. Donnelly, legal counsel of Lansing Correctional Facility, for appellee.
Appeal from Leavenworth District Court; Dan K. Wiley, Judge.
Wayne L. Morris, appellant pro se. Matthew J. Donnelly, legal counsel of Lansing Correctional Facility, for appellee.
Before BUSER, P.J., MALONE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Wayne Morris, an inmate at the Lansing Correctional Facility (LCF), appeals the denial of his pro se petition for writ of mandamus, under K.S.A. 60–801, to compel the Secretary of Corrections, Ray Roberts, to schedule his “yard” time in the evening for health reasons. The district court found that Morris could have pursued his claim under the habeas corpus statute, K.S.A. 60–1501. As a consequence, the district court found that mandamus relief was not available because there was an adequate remedy at law. We affirm the district court's ruling.
Factual and Procedural Background
Morris has a skin disease which is aggravated by prolonged exposure to sun or heat. He also has a proclivity for heat strokes. As a result, for about 10 years, LCF assigned Morris to the “last yard,” which is scheduled from 7 to 9:30 p.m. This assignment was based on the recommendations of Correct Care Solutions (CCS), a medical provider affiliated with LCF. On November 24, 2010, however, the LCF changed Morris' yard time assignment to the red yard. The red yard schedule is from Monday through Friday from 8:45 to 10:15 a .m., Saturday from 7 to 9:30 p.m., and Sunday from 8:15 to 9:30 a.m.
Four months later, on March 4, 2011, Morris submitted a grievance to his unit team manager at the LCF alleging that his assignment to the red yard interfered with his medical needs due to sun exposure. After reviewing Morris' grievance, the unit team manager responded: “I have been advised by CCS staff that CCS cannot tell KDOC what yard an inmate must have since that is a security and KDOC issue. CCS also advised that the evening yard would not endanger your health. No further action is deemed necessary at this time.”
Dissatisfied, Morris forwarded a formal grievance to David McKune, the warden at LCF. On May 16, 2011, Morris received McKune's final answer, which supported the finding of the unit team. Specifically, McKune concluded: “Based upon information obtained from CCS, it has been determined that morning yard, which you are currently assigned to, is medically acceptable. Therefore there will be no alteration to your yard schedule at this time.”
Morris subsequently appealed to the Secretary of Corrections, and on June 15, 2011, Sharron Williams, the Secretary of Corrections' designee, approved the warden's decision. Williams found that the “response rendered to [Morris] by staff at the facility [was] appropriate,” and Morris was unable to offer any “evidence or argument” that suggested otherwise.
Three months later, on September 20, 2011, Morris filed a pro se petition for writ of mandamus, under K.S.A. 60–801, to compel the Secretary of Corrections, Ray Roberts, “to place [him] back on Last Yard (7:00pm To 9:30pm) pursuant to Medical Order's [ sic ] and KSA 75–5249.” Morris argued that under K.S.A. 75–5249, prison officials are required to follow orders issued by medical staff, and despite this mandate, the LCF was intentionally interfering with his prescribed treatment by refusing to reinstate his previous yard time assignment. Morris also alleged that the LCF's deliberate indifference to his serious medical needs constituted cruel and unusual punishment as proscribed by the Eighth Amendment to the United States Constitution.
In support of this petition, Morris attached four Kansas Department of Corrections (KDOC) medical classification reports from 2008 and 2009 which stated: “Avoid excessive sun exposure, needs last yard.” Morris also attached an inmate communication from CCS that stated: “Has medical order for last yard per Lane ARNP good thru 3–31–10.” Finally, Morris submitted a copy of a medical classification report completed on August 14, 2011—after Morris exhausted his administrative remedies—indicating that he should have “[n]o excessive sun exposure & last yard.”
On November 21, 2011, Roberts filed a motion to dismiss Morris' petition. First, Roberts contended that mandamus was an inappropriate remedy because, “[a]s a general rule, ‘a writ of mandamus may not issue in any case where there is a plain and adequate remedy in the ordinary course of the law.’ “ Roberts explained that Morris could have pursued his claim under K.S.A. 60–1501 and, as such, “there [was] ‘a plain and adequate remedy’ available.” Second, Roberts argued that even if the district court construed Morris' petition as a writ of habeas corpus, relief was still unavailable because Morris' petition was untimely under K.S.A. 60–1501(b). Finally, Roberts asserted that even assuming Morris' petition had been timely, his petition failed to state a claim because he did not sufficiently establish that the LCF violated the Eighth Amendment's prohibition against cruel and unusual punishment by exhibiting deliberate indifference to his medical needs. Roberts explained that based upon Morris' petition, prison officials consulted with CCS regarding Morris' concerns and determined that his red yard assignment was acceptable. Moreover, Roberts noted: “Regardless of which yard [Morris] is assigned to, there are always areas that are shaded that all inmates may access.”
On December 13, 2011, Morris filed a “Supplemental Pleading” responding to Robert's motion to dismiss. Specifically, Morris acknowledged that he exhausted his administrative remedies on June 15, 2011, and he indicated that he did not file a timely K.S.A. 60–1501 petition due to “lack of access” to the courts. Morris explained that he suffers from a medical condition that affects his ability to write or type and he could not file an earlier pleading because “no one was willing to help [him].” Morris also argued that his “petition is not in the nature of a Habeas Corpus (KSA 60–1501)[;][t]he [p]etition is strictly in the nature of a Mandamus.” Morris asserted that a mandamus action was appropriate because the LCF violated its statutory duty to comply with the CCS' medical orders. Morris also argued that despite Roberts' assertion to the contrary, only .01% of the yard is shaded, he cannot access these areas by wheelchair, and even if he could remain in a shaded area, red yard still posed a health risk in the summer due to extreme heat. Alternatively, Morris requested that the district court “proceed with this matter pursuant to KSA 60–2606, KSA 60–513(a)(4), KSA 60–602(2), and Supplemental Jurisdiction of 42 USC § 1983” should it find mandamus to be an inappropriate remedy.
On January 3, 2012, the district court held a hearing to consider Roberts' motion to dismiss. Morris represented himself at the hearing, and he expressed his belief that the KDOC did not “really care about [his] health,” as the LCF was illegally “overruling” his doctors. Morris also explained that he could not hire counsel, and he did not “know how” to argue against the motion to dismiss because he is “not an attorney[,][and][he] ha[s] a hard time getting to the law library.”
After taking the matter under advisement, on April 6, 2012, the district court denied Morris' petition for writ of mandamus. The district court found that although Morris had a plain and adequate remedy under K.S.A. 60–1501, he chose not to pursue this remedy, “perhaps because [he] did not file his action within the 30–day jurisdictional window.” Accordingly, the district court found that Morris could not “skirt the 30–day jurisdictional window for filing a habeas action by attempting to sound his action in some other remedy such as Mandamus.” Morris subsequently filed a timely pro se appeal.
Discussion
On appeal, Morris contends the district court erred when it denied his petition for writ of mandamus because pursuant to K.S.A. 75–5249, prison officials have “an obligation ... to provide health care to prisoners ... and ... it has been held that prison official[s] are [required] to follow the physician[']s prescribed treatment.” On the other hand, Roberts supports the district court's judgment because “there was ‘a plain and adequate remedy’ available to Morris—the writ of habeas corpus—which is generally used by inmates to address conditions of confinement within the prison they are housed.”
Mandamus is “a proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.” K.S.A. 60–801. The question “ ‘[w]hether mandamus lies is dependent upon an interpretation of the applicable procedural and substantive statutes,” ‘ a question of law over which this court exercises unlimited review. State ex rel. Slusher v. City of Leavenworth, 285 Kan. 438, 443, 172 P.3d 1154 (2007).
Mandamus is “ ‘not a common means of obtaining redress, but is available only in rare cases, and as a last resort, for causes which are really extraordinary.’ [Citation omitted.]” Bohanon v. Werholtz, 46 Kan.App.2d 9, 12, 257 P.3d 1239 (2011). Thus, mandamus relief is not available when “ ‘ “a plain and adequate remedy at law exists.’ “ [Citation omitted.]” Willis v. Kansas Highway Patrol, 273 Kan. 123, 128, 41 P.3d 824 (2002). Moreover, mandamus is only available to compel the performance of a clearly defined duty or to enforce a right which is not in substantial dispute. Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 833, 104 P.3d 378 (2005). Accordingly, mandamus is not an appropriate remedy when the petitioner seeks to compel a public official to perform “an act that involves the exercise of discretion.” 278 Kan. at 833. In fact, the courts will generally only require public officials to perform actions that are “ ‘strictly ministerial’ “ in nature, meaning the official is clearly obligated to perform “ ‘in a prescribed manner, in obedience to the mandate of legal authority.’ “ 278 Kan. at 833. It is the petitioner's burden to show a right to relief, and the writ should not issue unless the respondent's legal duty is clear. S.M. v. Johnson, 290 Kan. 11, 14, 221 P.3d 99 (2009).
In his petition for writ of mandamus, Morris alleged that the LCF's refusal to reschedule his yard time constituted deliberate indifference to his serious medical needs in violation of the Eighth Amendment to the United States Constitution. The district court denied Morris' petition because it found that Morris had a “plain and adequate remedy pursuant to K.S.A. 60–1501.” K.S.A. 60–1501 provides a remedy for inmates challenging the conditions of their confinement including mistreatment “of a continuing or probably continuing nature” and deprivations of adequate medical care or treatment. Levier v. State, 209 Kan. 442, Syl. ¶ 3, 497 P.2d 265 (1972); Darnell v. Simmons, 30 Kan.App.2d 778, 780, 48 P.3d 1278 (2002).
Accordingly, since Morris could have pursued his constitutional argument through the timely filing of a K.S.A. 60–1501 petition, it is Morris' burden to show that K.S.A. 60–1501 would not have provided him with an adequate remedy under the circumstances of this case. See Bohanon, 46 Kan.App.2d at 13. Yet, Morris argues that a mandamus proceeding was appropriate simply because he chose this avenue of relief. Specifically, Morris asserts the district court erred because he filed his petition “ ‘strictly in the nature of Mandamus' “ and did not file a K.S.A. 60–1501 petition due to “[l]ack [o]f [a]ccess [t]o [t]he [c]ourts.” In other words, Morris does not argue that habeas relief would have been inadequate to address his grievance; instead, he attempts to justify his mandamus action by explaining his decision not to pursue habeas corpus relief, i.e., the 30–day statute of limitations for filing a habeas corpus petition expired before he was able to obtain legal assistance.
Morris' argument is not sufficient to avoid “the ‘adequate remedy’ bar” to his mandamus action. See Bohanon, 46 Kan.App.2d at 13. Mandamus is an extraordinary remedy, and despite Morris' assertion to the contrary, the petitioner's choice of remedy is irrelevant; mandamus relief is not available when there is an adequate remedy at law. See 46 Kan.App.2d at 12–13. Moreover, there does not appear to be anything extraordinary about Morris' complaint; rather, his grievance seems to be “well-suited for determination in the context of a K.S.A. 60–1501 proceeding.” See 46 Kan.App.2d at 13.
Alternatively, Morris argues the district court erred when it denied his petition because it failed to consider whether it was appropriate to proceed under K.S.A. 60–2606 or 42 U.S.C. § 1983 (2006). Yet, Morris merely mentioned these statutes below, and he never provided the district court with any authority in support of their applicability. Similarly, on appeal, Morris refers to these statutes without developing this issue, and a point raised incidentally in a brief and not argued therein is deemed waived and abandoned. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011). Finally, failure to support an argument with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. State v. Berriozabal, 291 Kan. 568, 594, 243 P .3d 352 (2010).
We conclude the district court did not err when it denied Morris' petition for writ of mandamus under K.S.A. 60–801, as a plain and adequate remedy at law existed under K.S.A. 60–1501.
Affirmed.