Highman v. Marquez, 50523

• Decision Date: 11 July 1980
• Docket Number: No. 50523,50523
• Citation: 613 P.2d 394,5 Kan.App.2d 158
• Parties: Delbert Eugene HIGHMAN, Appellant, v. James MARQUEZ, Kenneth Oliver, et al., Appellees.
• Court: Kansas Court of Appeals

Page 394

613 P.2d 394

5 Kan.App.2d 158

Delbert Eugene HIGHMAN, Appellant, v. James MARQUEZ, Kenneth Oliver, et al., Appellees.

No. 50523.

Court of Appeals of Kansas.

July 11, 1980.

Syllabus by the Court

1. Available administrative remedies must be exhausted before the conditions of confinement of an inmate may be reviewed in a habeas corpus proceeding.

2. Failure of an inmate to exhaust administrative remedies bars claims for declaratory and injunctive relief.

3. In an action commenced by an inmate for habeas corpus, declaratory and injunctive relief and for money damages, it is held summary dismissal, without hearing, was not erroneous.

Edward J. Chapman, Jr., Leavenworth, for appellant.

James E. Flory, Asst. Atty. Gen., and Robert T. Stephan, Atty. Gen., for appellees.

Before SWINEHART, P. J., and REES and SPENCER, JJ.

REES, Judge:

This is an appeal from the trial judge's summary dismissal, without hearing, of a pro se petition filed by plaintiff, an inmate of the Kansas State Penitentiary (KSP).

According plaintiff's petition requisite liberal construction, interpretation, we find ourselves compelled to conclude it is in the nature of initiation of a habeas corpus action brought to challenge the conditions of his confinement and for incidental relief not available in a habeas corpus action. The fact or duration of plaintiff's confinement is not challenged.

Before conditions of confinement may be reviewed in a habeas corpus proceeding, available administrative remedies must be exhausted. Davis v. State, 211 Kan. 257, 505 P.2d 293 (1973); Case v. Crouse, 210 Kan. 341, 502 P.2d 785 (1972). Failure to exhaust administrative remedies also bars claims for declaratory and injunctive relief. Jarvis v. Kansas Commission on Civil Rights, 215 Kan. 902, 905-906, 528 P.2d 1232 (1974); Beaver v. Chaffee, 2 Kan.App.2d 364, Syl. P 3, 369, 579 P.2d 1217 (1978).

Plaintiff does not allege there is no available administrative remedy. He alleges that resort to administrative remedy would be futile because the acts complained of are being committed by persons in charge of the administrative process. It has been stated:

"Some cases suggest or hold that where it plainly appears that the administrative remedy would be of no value and fruitless, the party seeking judicial relief does not have to complete administrative procedure before resorting to the courts, particularly where the administrative agency is powerless to afford relief in the face of a decision of the highest court of the state, or under the rules and regulations as promulgated by the head of the department, or under the provisions of the governing statute. However, the mere fact that the administrative agency will probably deny the relief which would be asked of them is no ground for asserting that it would be futile to resort to the administrative agency." 2 Am.Jur.2d, Administrative Law, § 605, pp. 441-442.

Kansas cases have recognized that if no administrative remedy exists, then there is no choice but to provide judicial inquiry into the factual issues underlying an inmate's complaints. Levier v. State, 209 Kan. 442, 452, 497 P.2d 265 (1972); Beaver v. Chaffee, 2 Kan.App.2d at 368-370, 579 P.2d 1217. In Beaver v. Chaffee, it was held:

"In order for the exhaustion doctrine to apply there must be a remedy provided through administrative action, and there can be no remedy in this connection where the action of the agency amounts to no more than a recommendation.

"The mere possession by some official body of a continuing supervisory or investigatory power does not itself suffice to afford an 'administrative remedy' unless the statute or regulation under which that power is exercised establishes clearly defined machinery for submission, evaluation, and resolution of complaints by aggrieved parties." 2 Kan.App.2d 364, Syl. PP 4, 5, 579 P.2d 1217, 1218.

A grievance procedure for resolution of inmates' complaints exists for inmates at KSP. It is set out in the Department of Corrections Policy and Procedure Manual, § 215 (1977). The grievance procedure provides that an inmate shall first take his grievance to the institution's unit team, which is made up of the supervisory personnel in charge of an inmate's cell block. If the inmate receives an unsatisfactory response, he may...