Smith v. Jordan
| Decision Date | 27 August 2021 |
| Docket Number | 2020-CA-1556-MR |
| Parties | BRIAN SMITH APPELLANT v. SCOTT JORDAN, WARDEN APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
BRIEF FOR APPELLANT: Brian Smith, pro se La Grange, Kentucky
BRIEF FOR APPELLEE: Allison R. Brown Frankfort, Kentucky
BEFORE: COMBS, JONES, AND McNEILL, JUDGES.
Appellant Brian Smith (Smith), pro se, appeals the Oldham Circuit Court's order denying his petition for a declaration of rights under Kentucky Revised Statute (KRS) 418.040 and dismissing his petition pursuant to KRS 454.405. Following a careful review of the record and the law, we affirm.
Smith is an inmate at the Luther Luckett Correctional Complex in La Grange, Kentucky. On July 27, 2018, a prison disciplinary report was issued against Smith for allegedly physically assaulting another inmate. At a final disciplinary hearing held by the prison adjustment committee on September 11 2018, Smith was found guilty of "[p]hysical action resulting in death or injury of another inmate." Smith appealed the committee's finding to the warden, Scott Jordan, who affirmed the committee's decision on September 12, 2018.
On August 28, 2019, Smith appealed the matter to the Oldham Circuit Court by way of a petition for declaration of rights pursuant to KRS 418.040; Smith's action was designated as Case No. 19-CI-00563. The circuit court ordered a partial filing fee of $15.00 which Smith failed to pay by the required deadline. On January 30, 2020, the circuit court dismissed the action without prejudice based on Smith's failure to submit the partial filing fee to the circuit court clerk.
Smith subsequently refiled his petition in Oldham Circuit Court on April 20, 2020; this second action by Smith was designated as Case No. 20-CI-00194. On September 24, 2020, the circuit court dismissed Smith's second action as factually frivolous pursuant to KRS 454.405:
IT IS HEREBY ORDERED that this matter is DISMISSED as factually frivolous pursuant to KRS § 454.405. The Petitioner submitted factually false information in his Petition regarding the date of his disciplinary hearing and the date the Warden's appeal was issued. This false information was presented in order to cover up the fact that the Petition was filed beyond the statute of limitations. There being no just reason for delay, this is a final and appealable order.
The only argument Smith raises on appeal is that the circuit court erroneously dismissed his petition because it was filed beyond the statute of limitations. In Kentucky, an action arising out of a prison disciplinary proceeding must be brought within one year after the cause of action accrued. KRS 413.140(1)(k). The statute of limitations for such a cause of action commences on the date an appeal of the disciplinary proceeding is decided by the institutional warden. KRS 413.140(7).
Warden Jordan handed down his decision affirming the adjustment committee's finding on September 12, 2018. Therefore Smith was required to file an action in circuit court by September 12, 2019, at the latest. Smith contends that his petition was timely filed when he filed his first action docketed as 19-CI-00563. However, that action was dismissed without prejudice for failure to pay the required filing fee. In Kentucky, "[a] dismissal without prejudice leaves the parties as if no action had been instituted." Magill v. Mercantile Tr. Co., 4 Ky. L. Rptr. 927, 81 Ky. 129, 132 (1883). Thus, a claimant whose action is dismissed without prejudice must file a new action within the required statute of limitations. Scott v. Davis, 2013-SC-000228-DG, 2015 WL...
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