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Burch v. Keck

Court of Appeals of Kansas

May 24, 2019

Timothy J. Burch, Appellant,
v.
Timothy Keck, Secretary of Kansas Department For Aging and Disability Services, et al., Appellees.

         SYLLABUS BY THE COURT

         A resident of the Kansas Sexual Predator Treatment Program is not required to exhaust administrative remedies before bringing an action under 42 U.S.C. § 1983 (2012).

          Appeal from Pawnee District Court; Bruce T. Gatterman, judge.

          Donald E. Anderson II, of Law Office of Donald E. Anderson II, LLC, of Great Bend, for appellant.

          Kelly G. Cunningham, senior litigation counsel, Kansas Department for Aging and Disability Services, for appellees.

          Before Arnold-Burger, C.J., Pierron and Malone, JJ.

          ARNOLD-BURGER, C.J.

         Generally, a person need not exhaust administrative remedies before bringing an action under 42 U.S.C. § 1983 (2012). Timothy J. Burch, a resident of the Kansas Sexual Predator Treatment Program (SPTP), brought a § 1983 action alleging that SPTP officials violated his constitutional rights by unlawfully seizing his property without affording him due process. The district court dismissed the case because Burch failed to prove that he exhausted his administrative remedies. Because exhaustion of administrative remedies is not required for residents of the Kansas SPTP bringing § 1983 claims, the district court's judgment is reversed and remanded.

         Factual and Procedural History

         Burch is a resident of the SPTP at Larned State Hospital. The Kansas Department for Aging and Disability Services (KDADS) administers the SPTP. In June 2017, Burch filed a civil rights complaint under § 1983 alleging that SPTP officials violated his constitutional rights by unlawfully seizing his property without affording him due process. Burch named KDADS Secretary Timothy Keck, Assistant Clinical Director Keri Applequist, and Program Manager Haleigh Bennett as defendants. KDADS moved to dismiss, arguing that the district court lacked jurisdiction to consider Burch's claims because he failed to exhaust his administrative remedies as required by K.S.A. 2018 Supp. 59-29a24 (persons committed to the SPTP required to exhaust administrative remedies prior to bringing any civil action). The district court agreed and dismissed Burch's case for failing to prove that he exhausted his administrative remedies. Burch appealed.

         After briefs were filed in the case, this court issued an order for supplemental briefing ordering the parties to address the holdings in Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988), Patsy v. Florida Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), and Prager v. Kansas Dept. of Revenue, 271 Kan. 1, 20 P.3d 39 (2001), as they relate to whether §1983 preempts K.S.A. 2018 Supp. 59-29a24. The parties have submitted their supplemental briefs and we are ready to rule.

         Analysis

         Burch argues that the district court erred in dismissing his case for failure to exhaust administrative remedies. He makes two arguments: (1) He did try to exhaust his administrative remedies, and (2) he did not have to exhaust administrative remedies because doing so would be a futile act. In supplemental briefing, he adds a third argument, that a state statute cannot preempt litigation of his claim under § 1983. Because his final claim is dispositive, we begin and end with it.

         "An allegation that a party is required to or has failed to exhaust administrative remedies presents a question of law, and the appellate court's standard of review is unlimited." In re Habeas Corpus Application ...


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