JAMES HARRISON v. MICHAEL O'DEA

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RENDERED: January 29, 1999; 10:00 a.m. NOT TO BE PUBLISHED C ommonwealth O f K entucky C ourt O f A ppeals NO. 1996-CA-003491-MR JAMES HARRISON APPELLANT APPEAL FROM MORGAN CIRCUIT COURT HONORABLE SAMUEL C. LONG, JUDGE ACTION NO. 96-CI-000188 v. MICHAEL O'DEA APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: GUDGEL, CHIEF JUDGE, COMBS AND McANULTY, JUDGES. McANULTY, JUDGE: This is a pro se appeal of the trial court’s dismissal without prejudice of a civil action filed in the Morgan Circuit Court. Appellant challenges the constitutionality of KRS 454.410 and alleges an abuse of discretion by the trial court. Finding no error, we affirm. The procedural history of this case is as follows. Appellant is an inmate in the Kentucky Department of Corrections system. On July 19, 1996 he filed a civil Complaint alleging various abuses within the prison system. Along with the Complaint he filed a Motion to Proceed in Forma Pauperis. This motion was granted. However, the Appellee subsequently filed a Motion to Hold in Abeyance for the trial court to assess an appropriate filing fee under the newly amended KRS 454.410. The trial court vacated the previous order and permitted Appellant a thirty day time period in which to file the necessary financial statements. Once these statements were timely received the trial court entered an order on September 9, 1996 imposing a $5.00 filing fee to be paid within forty-five days. Thereafter, on October 25, 1996, Appellant filed a Motion for Extension of Time in which to pay his filing fee. This motion was never ruled upon as the trial court entered an order dismissing without prejudice for failing to comply with the order of September 9, 1996. On December 6, 1996, Appellant filed a “Motion to Reinstate” accompanied with his filing fee of $5.00. The trial court treated this as a CR 59.05 motion to alter, amend or vacate and denied the motion as not being timely filed. This appeal followed. Appellant offers three arguments on appeal. First he asserts that KRS 454.410 is unconstitutional as it is vague and overbroad. Second, he states that the trial court abused its discretion by dismissing the civil complaint. Third, he contends that he was “denied any minimal procedures.” The Court first observes that this appeal was originally filed with two other appeals from Morgan Circuit Court, 96-CA-3494-MR and 96-CA-3495-MR, which involved the same parties and raised the same questions regarding the constitutionality of KRS 454.410, the discretion of the trial -2- court and the denial of minimal procedures. The present appeal was dismissed due to a perceived procedural default. However, on discretionary review the Supreme Court vacated the decision and remanded this case for consideration on the merits. Meanwhile, this Court has issued an opinion in the other two appeals, affirming the Morgan Circuit Court. Because the arguments and facts in the other two appeals are almost identical to those in the present appeal, we now adopt the reasoning used in the Opinion rendered October 17, 1997 and affirm the order of the trial court. As concerns the constitutionality of KRS 454.410(2), Appellant asserts that the statute is vague and overbroad in that it encourages arbitrary and discriminatory enforcement. In finding that this argument was without merit, this Court held that the statute, read in conjunction with KRS 453.190(5), “give[s] ample guidance to the court in setting filing fees.” We next turn to Appellant’s second argument. As was previously found by this Court, the trial court did not abuse its discretion in dismissing Appellant’s cause of action. KRS 454.410 provides, in pertinent part: [T]he court shall give written notice to the inmate that the inmate’s case will be dismissed if the partial fees and costs are not paid within forty-five (45) days after the date of the order, or within an additional period that the court may, upon request, allow. In the case sub judice, the trial court informed the Appellant that his case would be dismissed if the $5.00 filing fee was not paid within forty-five days from the date of the order. -3- As previously noted, Appellant filed a request for extension of time after the time had expired. The trial court therefore did not abuse it’s discretion in dismissing the action. Finally, Appellant’s third argument is essentially one of due process as he argues that KRS 454.410(3) conflicts with the Rules of Civil Procedure and denies him “minimal procedures.” Appellant relies on Gall v. Scroggy, Ky.App., 725 S.W.2d 857 (1987), which is the source of the “minimal procedures” language. In Scroggy, this court upheld the trial court’s sua sponte dismissal of a civil action for failure to state a cause of action, stating that such a dismissal is proper as long as the court follows minimal procedures to protect the plaintiff’s due process rights. As this Court noted in the Opinion rendered October 17, 1997, it is doubtful whether or not the requirements of Scroggy apply as the action in the case at bar was dismissed without prejudice and was not dismissed on the merits. Regardless, this Court determined that “the procedures established by KRS 454.410 and followed by the circuit court were sufficient” to protect Appellant’s due process rights. Accordingly, the order of the circuit court dismissing Appellant’s actions without prejudice is affirmed. ALL CONCUR. BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: James Nick Harrison, Pro se Eddyville, Ky John T. Damron Frankfort, Ky -4-

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