Laubach v. Roberts, 91,329

• Decision Date: 28 May 2004
• Docket Number: No. 91,329,91,329
• Citation: 90 P.3d 961,32 Kan.App.2d 863
• Parties: ROGER LAUBACH, Appellant, v. RAY ROBERTS, WARDEN OF ELLSWORTH CORRECTIONAL FACILITY; and DAVID R. McKUNE, WARDEN OF LANSING CORRECTIONAL FACILITY, et al., Appellees.
• Court: Kansas Court of Appeals

32 Kan.App.2d 863

90 P.3d 961

ROGER LAUBACH, Appellant, v. RAY ROBERTS, WARDEN OF ELLSWORTH CORRECTIONAL FACILITY; and DAVID R. McKUNE, WARDEN OF LANSING CORRECTIONAL FACILITY, et al., Appellees.

No. 91,329

Court of Appeals of Kansas.

Opinion filed May 28, 2004.

Roger Laubach, appellant pro se.

Robert E. Wasinger, of the Department of Corrections, for appellees.

Before RULON, C.J., HILL, J., and WAHL, S.J.

RULON, C.J.:

Petitioner Roger Laubach appeals the summary denial of his pro se petition for relief. We affirm in part and dismiss in part.

The material facts are as follows:

In late 1999, the petitioner sought medical treatment for poor eyesight. He was referred to Dr. Ziemianski, a retinal specialist, who indicated that the petitioner's retinas functioned within the normal limits. In February of 2000, the petitioner was examined by Dr. Reifschneider, who referred the petitioner to a neuro-ophthalmologist, Dr. Wuster at the University of Kansas Medical Center. Dr. Wuster found no significant impairment, and tests conducted in May of 2000 suggested peripheral contraction but no medical diagnosis.

In April of 2001, Dr. Reifschneider again examined the petitioner and found no objective cause for the petitioner's claimed vision loss. The degree of cataract in the petitioner's eyes diminished his vision to 20/50, but optico-kinetic nystagmus and mirror tests indicated that the petitioner did fixate and track well with each eye.

Eventually, the petitioner stopped attending his sexual abuse treatment program (SATP). One of the program administrators notified the petitioner that petitioner's lack of attendance would require petitioner's termination from the program unless he began to regularly attend program sessions. Instead of returning to the program, the petitioner signed a voluntary termination form. The form provided:

"I, Roger Laubach KDOC #59642, have freely chosen to terminate my commitment to the SATP/DCCCA, Inc. as of this date 4-18-01.

"I have been advised by David Serena, SATP Staff member, that it is in my best interest to participate in the Sexual Abuse Treatment Program. Although my failure to follow the advice I have received may [a]ffect my parole eligibility status, I nevertheless choose to terminate my commitment to this program. I assume the risks and consequences involved with this decision.

"I choose to terminate from the Sexual Abuse Treatment Program (SATP) for the following reason(s): I can [sic] see to fill this out.

"I further understand that by signing this termination, my name will be removed from the waiting list. If I change my mind at a later date, the only way I will be considered for acceptance into the SATP again is to submit a Form 9 to both my Unit Team and SATP no earlier than 60 days from termination. My assignment to this program will then be on a space availability basis only." (Emphasis added.)

Although the petitioner indicated that he could not see, a notation by David Serena at the bottom of the acknowledgment indicates the above form had been read to the petitioner and that the petitioner voluntarily terminated the program.

Sometime later, the petitioner was transferred from Lansing, a minimum security facility to Ellsworth, a medium security facility. The petitioner lost the incentives associated with a Level 3 because petitioner was returned to a Level 1 for terminating the sexual abuse treatment program. Consequently, in May of 2001, the petitioner filed an inmate request with a unit team member to discover why he had been transferred to a medium security facility and why he had lost incentives. The response from the corrections officer indicated the petitioner lost his incentives for failing to complete the SATP.

Later, the petitioner submitted a request to the deputy warden for the return of his incentives because he had been removed from the treatment program solely because of his inability to read the required materials. Although this record contains no response to the petitioner's request, the warden of the Ellsworth facility did respond to the petitioner's inmate complaint filed on June 6, 2001. After investigating the complaint and receiving a memorandum from the treatment program, the warden opined the petitioner's termination of the treatment program was completely voluntary and that the treatment program makes reasonable accommodations for inmates with physical and mental limitations.

On June 27, 2001, the petitioner filed an appeal to the Secretary of Corrections, claiming that petitioner did not voluntarily withdraw from the treatment program but that he was forced to terminate because of poor eyesight. On July 13, 2001, the Secretary of Corrections affirmed the warden's response to the petitioner's grievance complaint.

Before receiving the Secretary's response, however, the petitioner filed another inmate request demanding cataract surgery, which petitioner claims had been scheduled for November 2000, but which he had never received. Petitioner filed another inmate complaint on July 8, 2002, alleging that his eye surgery was improperly canceled by the regional medical director after the ophthalmologist recommended surgery. The unit team response indicated that the medical procedure was denied by the regional medical director because the director believed the benefit of the surgery to the petitioner was slight and the risk of injury to the eye as a result of the surgery was, therefore, not warranted. This response was supported by the clinical nurse, Deborah Butler. There is no further appeal of this issue contained within the record.

Meanwhile, despite the Secretary's determination, the petitioner continued to seek a return of his incentive privileges. Petitioner filed two separate inmate requests and received two responses recommending that the petitioner return to the treatment program. The petitioner filed another complaint based upon the prison's refusal to transfer him to another section of the prison to house with a friend who offered to assist the petitioner in reading and writing.

The unit team response to the petitioner's request to transfer indicated that the petitioner had not demonstrated a medical need for a transfer. While acknowledging the petitioner needs assistance with reading and writing due to poor eyesight, the unit team response suggested the prison had made reasonable accommodations to the petitioner's physical limitation by providing the petitioner with his own copy of the canteen list, by permitting the petitioner to move into any cell within the same section of the prison, if he could locate a prisoner who would be willing to help him with reading and writing, and by offering assistance of prison employees to read official notices upon request by the petitioner.

The petitioner appealed this determination to the warden, who affirmed the unit team response. The record does not contain a further appeal of this issue to the Secretary of Corrections.

On November 25, 2002, the petitioner filed an action pursuant to "K.S.A. 60-209; K.S.A. 21-3905; K.S.A. 21-3803; K.S.A. 21-805; K.S.A. 21-3902, Kansas and § 1983 Federal Civil Rights Statutes Act; Supreme Court Rule 170; Kansas Bill of Rights V; and Title II ADA American Disabilities Act." The petitioner claimed the respondents collectively violated his constitutional rights as well as violating the Americans with Disabilities Act (ADA) 42 U.S.C. § 12101 et seq., by terminating the petitioner from the sex offender treatment program merely because of his inability to read and by preventing the petitioner from obtaining the medical attention his eyes required. The petitioner also sought a jury trial.

On February 6, 2003, the Department of Corrections and its officers in their official and individual capacities moved to dismiss the petitioner's action based upon petitioner's failure to exhaust the administrative remedies and upon a failure to state a claim upon which relief may be granted.

On May 8, 2003, the petitioner filed a motion with the district court to permit an inmate to act as a reader for the petitioner at his hearing and requested an order for both the petitioner's and the reader's attendance at the hearing. The district court denied the petitioner's request to permit the inmate to act as a reader for the petitioner, and the petitioner filed a motion for the recusal of the presiding judge.

On August 6, 2003, the district court summarily dismissed the petitioner's petition and denied the motion for recusal. The petitioner appeals.

First, we must decide if the district court improperly dismissed the petitioner's claims without holding an evidentiary hearing.

In appealing the summary dismissal of his action, the petitioner claims his action is supported by K.S.A. 60-209; K.S.A. 21-3905; K.S.A. 21-3803 (repealed 1983); K.S.A. 21-805 (repealed 1974); K.S.A. 21-3902; 42 U.S.C. § 1983; Supreme Court Rule 183 (2003 Kan. Ct. R. Annot. 213); the Kansas Constitution Bill of Rights § 5; and Title II of the ADA American Disability Act.

In evaluating the claims of a pro se prisoner, courts should broadly construe the petition to ascertain whether the prisoner has articulated any basis upon which relief may be granted. See Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Because the petitioner generally complains about the conditions of his confinement, the petition may properly be treated as a request for habeas corpus relief pursuant to K.S.A. 60-1501. See State v. Mejia, 20 Kan. App. 2d 890, 892-93, 894 P.2d 202 (1995). The petitioner further asserts claims pursuant to the Civil Rights Act of 1964, 42 U.S.C. § 1983, and under the American with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. Other authority cited by the petitioner, even if interpreted broadly, provides no cause of action.

In any civil action against a correctional facility in Kansas, an inmate is required...