ANTHONY BEAN V. WALTER CHAPLEAU
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RENDERED:
November 21, 1997; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 97-CA-0458-MR
ANTHONY BEAN
APPELLANT
APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE DENNIS A. FRITZ, JUDGE
ACTION NO. 97-CI-0015
V.
WALTER CHAPLEAU
APPELLEE
OPINION
AFFIRMING
* * * * * * * * * *
BEFORE: WILHOIT1, CHIEF JUDGE; EMBERTON and GUIDUGLI, Judges.
GUIDUGLI, JUDGE.
Anthony Bean, acting pro se, appeals an order
of the Oldham Circuit Court entered February 10, 1997, dismissing
his petition for declaratory judgment brought pursuant to KRS
418.040 for failure to bring the action within the statute of
limitations period.
We affirm.
Bean is an inmate at the Eastern Kentucky Correctional
Complex (EKCC) in West Liberty, Kentucky.
On December 5, 1995,
Bean was found guilty by the prison Adjustment Committee of
conspiring with a female staff member to smuggle marijuana into
the prison.
The Adjustment Committee's decision was based in
part on confidential information not disclosed to Bean.
The
Adjustment Committee imposed penalties of ninety (90) days
1
Chief Judge Wilhoit concurred in this opinion prior to his
retirement effective November 15, 1997. Release of the opinion
was delayed by normal administrative handling.
disciplinary segregation and ninety (90) days forfeiture of good
time.
Upon appeal, the prison warden, Walter Chapleau, concurred
with the Adjustment Committee's decision.
On January 15, 1997,
Bean filed his petition for declaratory judgment alleging the
disciplinary proceeding violated due process.
On February 7,
1997, Chapleau filed a motion to dismiss based on KRS
413.140(1)(a), which provides a one-year statute of limitations
for injury to a person.
On February 10, 1997, the circuit court
dismissed the petition as being time-barred under KRS
413.140(1)(a).
This appeal followed.
The initial issue concerns the appropriate statute of
limitations.
Bean claims the procedure used by the Adjustment
Committee violated his federal constitutional right to due
process under the 14th Amendment.
In Wilson v. Garcia, 471 U.S.
261, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985), the United States
Supreme Court stated that in order to achieve uniformity in
handling federal claims under 42 U.S.C. § 1983, such claims
should be treated as personal injury actions for purposes of
applying the appropriate state statute of limitations.
In Board
of Trustees of University of Kentucky v. Hayse, Ky., 782 S.W.2d
609, 613 (1990), the Kentucky Supreme Court relied on Wilson in
holding that KRS 413.140(1)(a) applies to claims under the
federal constitution and § 1983.
See also Collard v. Kentucky
Board of Nursing, 896 F.2d 179 (6th Cir. 1990)(stating KRS
413.140(1)(a) applied to due process procedural challenge to
administrative proceeding).
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Although Bean's complaint was filed pursuant to the
state declaratory judgment statute, KRS 418.040, rather than 42
U.S.C. § 1983, we believe KRS 413.140(1)(a) applies to this
action.
Challenges to procedural aspects of prison disciplinary
proceedings may be cognizable under § 1983.
See Wolff v.
McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974);
Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d
383 (1994); Sheldon v. Hundley, 83 F.3d 231 (8th Cir. 1996).
In
fact, in Brown v. Wigginton, 981 F.2d 913 (6th Cir. 1992), the
Sixth Circuit Court of Appeals held that KRS 413.140(1)(a)
applied to a § 1983 action by a Kentucky prison inmate against
prison officials.
A petition for a declaratory judgment pursuant
to KRS 418.040 has become the procedural vehicle for prison
inmates challenging prison disciplinary proceedings.
See Smith
v. O'Dea, Ky. App., 939 S.W.2d 353, 355 (1997); Graham v. O'Dea,
Ky. App., 876 S.W.2d 621 (1994).
Thus, the circuit court
properly held that KRS 413.140(1)(a) applied to Bean's petition.
The second issue involves whether the circuit court
erred in holding that Bean's action was time-barred.
An action
for injuries to a person generally accrues at the time of the
injury.
See generally Clark v. Hauck Mfg. Co., Ky., 910 S.W.2d
247 (1995)(action for loss of consortium accrued at time of
injury); Rigazio v. Archdiocese of Louisville, Ky. App., 853
S.W.2d 295 (1993)(action for sexual abuse accrued at time of acts
of abuse).
In Gartrell v. Gaylor, 981 F.2d 254 (5th Cir. 1993),
involving a prisoner's suit alleging violations of procedural due
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process, the court held that the action for injury accrued at the
time of the disciplinary hearing, and not after the
administrative appeal was denied.
The court rejected Gartrell's
argument that his claim did not accrue until the final
administrative appeal was denied because he did not know whether
the "injuries" he had to suffer - a loss of good time and
solitary confinement - would remain in effect.
The court stated,
"The alleged 'injury' is not the punishment imposed, but the
failure of prison officials to abide by established disciplinary
or grievance procedures. (Citations omitted.)
The injury occurs,
if at all, when the procedures are disregarded or abused."
at 257.
Id.
Therefore, Bean's cause of action accrued on December 5,
1995, when the Adjustment Committee hearing occurred, rather than
on December 19, 1995, when the prison warden denied the
administrative appeal.
Bean acknowledges that his petition, officially filed
on January 15, 1997, fell outside the one-year statutory period.
Bean argues, however, that the action should not have been
dismissed for two reasons.
First, he contends that he attempted
to file the action on two occasions as early as October 1996, but
his complaint was returned for technical errors in the pleading.
Bean apparently is arguing that the January 1997 filing should
relate back to the date of the attempted earlier filings.
The
record does not reveal the dates of any alleged attempted earlier
filings or the defects in the documents.
We note that Bean has
not cited any case law, statute or procedural rule to support his
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position.
Nevertheless, an action does not "commence" until the
filing of a complaint and the issuing of a summons.
See KRS
413.250; CR 3; Transportation Cabinet, Dept. of Highways v. City
of Campbellsville, Ky. App., 740 S.W.2d 162 (1987).
Moreover, an
action must be timely commenced within the limitations period.
See Halderman v. Sanderson Forklifts Co., Ky. App., 818 S.W.2d
270, 272 (1991); Simpson v. Antrobus, 260 Ky. 641, 86 S.W.2d 544
(1935).
As a result, Bean's defective attempted filings were not
sufficient to trigger compliance with the statute of limitations.
Bean's second argument for not barring his action based
on the statute of limitations involves tolling the limitations
period.
Bean states that he was unable to pursue his claims
during the ninety (90) day period he was placed in disciplinary
segregation; therefore, the limitations period should be tolled
during that period.
KRS 413.109(2) allows tolling of the
limitations period for fraudulent activity or an "act or conduct
which in point of fact misleads or deceives plaintiff and
obstructs or prevents him from instituting his suit while he may
do so." Rigazio, 853 S.W.2d at 297 (quoting Adams v. Ison, Ky.,
249 S.W.2d 791, 792 (1952)).
In addition, KRS 413.260 indicates
that the limitations period should not run during a period of
lawful restraint.
KRS 413.260(1) states:
"If the doing of an
act necessary to save any right or benefit is restrained or
suspended by injunction or other lawful restraint . . . the time
covered by the . . . restraint . . . shall not be counted in the
application of any statute of limitations."
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In interpreting this
statute, the court in Fannin v. Lewis, Ky., 254 S.W.2d 479, 481
(1952), indicated that the word "restrained" should not be given
a broad meaning because statutes of limitation are intended to
provide some peace to society.
Consequently, statutes of
limitation should not be evaded easily.
Id.
Once the statute of
limitations is raised, the complainant has the burden of proof on
the issue of tolling.
Southeast Kentucky Baptist Hospital v.
Gaylor, Ky., 756 S.W.2d 467, 469 (1988). The mere fact of
incarceration is no longer a sufficient impediment to toll the
statute of limitations.
See Hardin v. Straub, 490 U. S. 541,
544, 109 S. Ct. 1998, 2003, 104 L. Ed. 2d 582 (1989)(state may
reasonably decide there is no need to enact tolling statute for
prisoners); Bailey v. Faulkner, 765 F.2d 102, 103 (7th Cir.
1985)(statutes extending limitations periods simply because of
incarceration are "hopelessly archaic" in an era when prisoners
have ready access to courts).
In fact, in 1990, Kentucky
repealed its general statute tolling the limitations period while
a person was incarcerated.
See former KRS 413.310; Brown v.
Wigginton, 981 F.2d 913 (6th Cir. 1992).
In the case sub judice, Bean simply has not provided
sufficient legal or factual support to justify application of
tolling in this particular instance.
There is no evidence that
Bean was totally unable to pursue his action while in
segregation, and he has not shown that prison officials acted
fraudulently or mislead him.
We believe that Bean has failed to
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satisfy his burden of establishing that the one-year statute of
limitations should be tolled.
In addition, Bean did not raise the issue of tolling
before the trial court by way of a response to appellee's motion
to dismiss or CR 59.05.
This Court will not review an issue
which appellant's brief did not identify by citation to the
record showing where the issue was preserved for appeal.
Elwell
v. Stone, Ky. App., 799 S.W.2d 46 (1990); CR 76.12(4)(c)(iv).
This issue was raised first in appellant's brief and was not
presented to the circuit court.
Generally, the Court of Appeals
will not review issues not raised in or decided by the trial
court.
Regional Jail Authority v. Tackett, Ky., 770 S.W.2d 225
(1989); Kaplon v. Chase, Ky. App., 690 S.W.2d 761 (1985).
For the foregoing reasons, we affirm the order of the
Oldham Circuit Court.
ALL CONCUR.
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BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEE
Anthony Bean
West Liberty, Kentucky
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