Opinion
No. 107,372.
2012-09-7
Steven K. BLOOM, Appellant, v. FNU ARNOLD, et al., Appellees.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge. Steven Kent Bloom, appellant pro se. Fred W. Phelps, Jr., legal counsel, Kansas Department of Corrections, of Topeka, for appellees.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge.
Steven Kent Bloom, appellant pro se. Fred W. Phelps, Jr., legal counsel, Kansas Department of Corrections, of Topeka, for appellees.
Before PIERRON, P.J., BUSER and LEBEN, JJ.
MEMORANDUM OPINION
LEBEN, J.
Steven Bloom brought a civil-rights lawsuit under 42 U.S.C. § 1983 (2006) after he said state prison officials retaliated against him for filing a federal lawsuit against them. But the district court dismissed the lawsuit, concluding that it was barred under the applicable statute of limitations and because Bloom hadn't tried to use the available prison grievance procedures to address the issue.
While Bloom did appeal one disciplinary sanction that he said was retaliatory, he failed to bring his suit within the 2–year statute of limitations even if the time while he appealed that sanction isn't counted against him. And Bloom never used available prison grievance procedures, which is required before he could bring a Section 1983 claim. We therefore affirm the district court's judgment.
Factual and Procedural Background
Bloom has represented himself in this case, and this is the second time his claims have been dismissed. Bloom's petition set out a claim for abuse of process, and the district court properly dismissed that claim, which did not apply to Bloom's factual setting. But our court concluded that Bloom's petition could also be read to set out a civil-rights claim under Section 1983 for retaliation. So we sent the case back to the district court for further proceedings. Bloom v. Arnold, 45 Kan.App.2d 225, 248 P.3d 752 (2011).
In his suit, Bloom claimed that his unit team manager at the Lansing Correctional Facility, Officer Medill, had on November 4, 2005, assigned Bloom to the job of dining-room porter even though Medill knew that Bloom was physically unable to perform the job. Bloom claimed that Medill did this in retaliation because Bloom had brought a federal lawsuit against several defendants, including Medill.
On November 9, 2005, another correctional officer issued a disciplinary citation against Bloom for failing to report to this job assignment. Bloom challenged the citation, so a hearing was held on November 16, 2005. A hearing officer upheld the disciplinary citation.
Bloom received a copy of the hearing record on December 9, 2005, and he submitted an appeal form on December 14, 2005. Bloom asserted his retaliation claim as a defense to the disciplinary charge, noting that he was assigned to the new job only 11 days after the federal lawsuit had been mailed to Medill.
It appears that the appeals packet was returned by the Secretary of Corrections for some further paperwork, though our record is not clear about that point. But Bloom got a copy of the Secretary's decision denying the appeal on April 18, 2006.
About 2 years later, on April 16, 2008, Bloom gave prison officials the petition bringing the lawsuit now before us, asking them to mail it to the district court for filing. Under the prison mailbox rule, a prisoner's lawsuit is considered filed when it is delivered to prison authorities for mailing—not the date it is eventually filed with the court clerk—since prison authorities control what happens after the paper is delivered to them. Sauls v.. McKune, 45 Kan.App.2d 915, 916, 260 P.3d 95 (2011). So we consider Bloom's suit to have been filed April 16, 2008 (rather than the filing date in the district court, which was April 22).
Bloom's suit set out what we construed as Section 1983 claims against several officials at the Lansing Correctional Facility. Bloom did not attempt to use the prison's grievance-resolution procedures to resolve the retaliation claim.
The defendants moved to dismiss Bloom's lawsuit because it wasn't filed within the 2–year statute of limitations for Section 1983 claims and because Bloom didn't fully use administrative procedures available to him to address his retaliation complaint. The district court granted the motion to dismiss Bloom's lawsuit for both of those reasons.
Analysis
I. Bloom's Lawsuit Is Barred by the Statute of Limitations.
Section 1983 claims may be heard in either state or federal courts, and the claims involve some aspects of both state and federal law. The federal statute, 42 U.S.C. § 1983, has no statute-of-limitations period in it, so state law governs the time limit for bringing suit. Braxton v. Zavaras, 614 F.3d 1156, 1159 (10th Cir.2010). Section 1983 claims fall under the 2–year Kansas statute of limitations for actions for injury to the rights of another not arising on contract or otherwise specifically provided for. See K.S.A. 60–513(a)(4); Jacobs v. Lyon County Detention Center, 371 Fed. Appx. 910, 912 (10th Cir.2010) (unpublished opinion).
The point at which the limitations period begins to run on a Section 1983 claim is determined by federal law. Wallace v. Kato, 549 U.S. 384, 388, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). Under federal law, the claim accrues—and the limitations period begins to run—when facts that would support a cause of action are or should be apparent to the plaintiff. Fogle v. Pierson, 435 F .3d 1252, 1258 (10th Cir.2006). Bloom claims he suffered retaliation in response to his exercising his constitutional right of access to the courts, so his claim would accrue when he knew or should have known that his rights had been violated. See Smith v. City of Enid, 149 F.3d 1151, 1154 (10th Cir.1998). Here, the first act Bloom alleges was taken against him in retaliation occurred on November 4, 2005, when he was assigned to a job Bloom says his supervisor knew he couldn't do. Bloom's Section 1983 claim accrued on November 4, 2005, and the 2–year limitations period began to run. See Grissom v. Rohling, 431 Fed. Appx. 693, 697 (10th Cir.2011) (unpublished opinion) (prisoner's Section 1983 retaliation claim accrued and the statute of limitations began running when he was transferred to another prison in what the prisoner alleged was retaliation).
There's one other aspect of the running of the limitations period that must be considered—whether the time period was tolled (or suspended) during all or part of the process involved in the disciplinary complaint issued when Bloom refused to show up for his dining-room-porter job. State law governs tolling issues, and Kansas tolling principles suspend the running of the limitations period for the time during which the plaintiff is exhausting any administrative remedies he's required to use before bringing suit. See Bloom v. McPherson, 346 Fed. Appx. 368, 371 (10th Cir.2009) (unpublished opinion) (citing Wagher v. Guy's Foods, Inc., 256 Kan. 300, 310–12, 885 P.2d 1197 [1994] ).
The district court found that because Bloom knew or should have known he had a retaliation claim in November 2005 but didn't file suit until April 2008, more than 2 years later, his suit was barred. But the district court in our case wrongly concluded that tolling principles do not apply to Section 1983 claims. So we must consider whether the application of tolling principles changes the result.
Under federal law, the Prison Litigation Reform Act requires that before a prisoner may bring a Section 1983 claim “with respect to prison conditions,” the prisoner must first exhaust available administrative remedies. 42 U.S.C. § 1997e(a) (2006). Under this statute, prisoners must exhaust all available administrative remedies, even when damages are not available administratively. Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); see also Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (concluding that this exhaustion requirement “applies to all inmate suits about prison life”).
Here, Bloom argued in response to the disciplinary citation that Officer Medill had given Bloom the new work assignment in retaliation for Bloom's filing of the federal lawsuit, a protected activity. So Bloom's appeal in the disciplinary proceeding would have been necessary for Bloom to exhaust all administrative remedies, even if Bloom couldn't achieve all of the relief he later sought in his Section 1983 petition in the administrative forum. See Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.2002) (finding that inmate must exhaust administrative remedies even when they “would appear to be futile at providing the kind of remedy sought”).
Procedurally, Officer Medill initiated the disciplinary process through a summary-judgment procedure under which Bloom could have admitted to the violation. See K.A.R. 44–13–201b. But Bloom disputed it—as he would have been required to do based on his claim that the job reassignment was an illegal, retaliatory move. So the time for filing suit was tolled during the entire disciplinary process on Medill's complaint—in which Bloom pursued the defense that the job reassignment and the disciplinary charge were made in retaliation. Thus, Bloom would be entitled to tolling from November 9, 2005, when the citation was issued, until April 18, 2006, when his appeal was denied, a total of 160 days.
Even so, Bloom's suit wasn't filed within the 2–year limit. From the date his Section 1983 claim accrued, November 4, 2005, until he is deemed to have filed suit, April 16, 2008, 894 days transpired. Subtracting 160 days leaves us with 734 days—more than 2 years. Because 2008 was a leap year, 2 years in this case would have been 731 days (366 plus 365). So Bloom was late.
Admittedly, Bloom missed the deadline by only 3 days. But limitation periods are inherently arbitrary. See Rothensies v. Electric Storage Battery Co., 329 U.S. 296, 301–03, 67 S.Ct. 271, 91 L.Ed. 296 (1946) (noting that statutes of limitation are inherently arbitrary and cannot discriminate between just and unjust claims). Bloom's claim is barred by the 2–year statute of limitations.
II. Bloom's Lawsuit Is Also Barred for Failure to Exhaust Administrative Remedies.
The defendants also sought to dismiss Bloom's lawsuit for the failure to exhaust available administrative remedies, which is required by the Prison Litigation Reform Act. See 42 U.S.C. § 1997e(a). A grievance procedure is available to Kansas prison inmates for “a broad range of matters that directly affect the inmate,” including “[c]omplaints by inmates regarding policies and conditions within” the prison. K.A.R. 45–15–101a(d)(1)(A). Inmate complaints are processed through a multi-level grievance procedure, beginning with informal problem solving within the inmate's unit team, moving on to complaints to the facility warden, and ending with a possible appeal to the Secretary of Corrections. K.A.R. 44–15–102.
The failure to exhaust administrative remedies is an affirmative defense, Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007), so the defendants had to make a showing that Bloom had failed to exhaust administrative remedies. Here, the defendants presented an affidavit to the court stating that Bloom had not filed a grievance alleging that he was “issued a disciplinary report in retaliation against him for his having filed a federal lawsuit” against prison employees. Bloom responds that he has filed many grievances, but he does not cite or quote one that complains either that his assignment to the dining-room-porter job or the citation given to him for failing to report for that assignment were in retaliation for his lawsuit.
When an inmate has not used the grievance procedures before filing a Section 1983 lawsuit, the inmate has not exhausted his or her administrative remedies, and the suit is subject to dismissal on that basis. Bloom v. Muchenthaler, 34 Kan.App.2d 603, 607–08, 127 P.3d 342,rev. denied 280 Kan. 981 (2005). The district court properly dismissed Bloom's suit based on his failure to exhaust administrative remedies.
III. Bloom's Claim that the District Judge Should Have Recused Is Unproven.
Bloom also contends that the district judge assigned to this case should have recused or been disqualified. Bloom filed a motion for change of judge on February 3, 2011, and he filed an affidavit for change of judge on May 12, 2011. For reasons that aren't clear in our record, the motion was apparently misplaced at the district court and the assigned judge wasn't aware of the motion or affidavit until Bloom mentioned them during a telephone conference in August 2011.
The district judge denied the motion because he concluded that the proper procedure under K.S.A. 20–311d hadn't been followed, a conclusion that may well have been in error. The district court's docket entries show that Bloom first filed a motion and later an affidavit in support of his attempt to remove the district judge for bias, which is consistent with the procedure set out under K.S.A. 20–311d.
But Bloom filed a renewed affidavit for change of judge, and that was properly given to the chief judge for review. That judge deemed it legally insufficient to merit disqualification of the assigned judge.
Appellate courts review issues regarding the disqualification of a judge independently, without any required deference to the district court. See State v. Kirkpatrick, 286 Kan. 329, 348, 184 P.3d 247 (2008); Smith v. Printup, 262 Kan. 587, 606–07, 983 P.2d 1261 (1997). A judge should disqualify himself or herself if the circumstances would create reasonable doubt about the judge's impartiality in the mind of a reasonable person with knowledge of all the circumstances. State v. Sappington, 285 Kan. 176, 192, 169 P.3d 1107 (2007). But a judge may not be disqualified when the movant merely recites previous rulings the judge has made on legal issues. K.S.A. 20–311d(d).
Here, Bloom has not created any reasonable doubt regarding the district judge's impartiality. Bloom disagreed with the judge on several points of law, but that is insufficient to show bias or prejudice. And Bloom has not alleged any specific facts that would reasonably call the judge's impartiality into question.
We add that our resolution of this issue would have no effect on the result of this appeal. We have independently reviewed whether Bloom's lawsuit was barred by the statute of limitations or for failure to exhaust administrative remedies, and we have determined that the district court was correct to dismiss Bloom's lawsuit on both of those grounds.
The district court's judgment is affirmed.