HERBERT R. SMITH v. VERTNER L. TAYLOR, DEPARTMENT OF CORRECTIONS
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RENDERED: August 27, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002615-MR
HERBERT R. SMITH
APPELLANT
APPEAL FROM LYON CIRCUIT COURT
HONORABLE BILL CUNNINGHAM, JUDGE
ACTION NO. 03-CI-00112
v.
VERTNER L. TAYLOR,
DEPARTMENT OF CORRECTIONS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; GUIDUGLI AND KNOPF, JUDGES.
GUIDUGLI, JUDGE:
Herbert R. Smith (hereinafter “Smith”) appeals
from an order of dismissal entered by the Lyon Circuit Court on
August 6, 2003, which dismissed his sixty-one (61) page civil
rights action.
We affirm.
On May 29, 2003, Smith, who is an inmate at the
Kentucky State Penitentiary in Eddyville, filed a civil rights
action alleging numerous causes of action relative to his
treatment while an inmate over the past several years.
Named as
defendants were Vertner L. Taylor, in his official capacity as
Commissioner of the Kentucky Department of Corrections, as well
as numerous other individuals, such as the warden, prior prison
employees, and doctors and nurses who had contact with Smith at
the prison.
In his sixty-one (61) page complaint, he alleges he
has been injured due to the actions of these numerous
individuals.
For example, in paragraph number one of his civil
rights action, he alleges:
This action contains both State
(Kentucky) and Federal Law claims, seeks
declaratory relief, and seeks monetary
relief from the defendants individually and
severally due to their narrow infallible
beliefs and egregious, willful, malicious,
unconscionable, intentional, harassment, and
retaliation behavior, alone and in
combination, that deprived the Plaintiff of
the minimal civilized measure of life’s
necessities, in which, resulted in Plaintiff
suffering injuries, extreme pains, extreme
mental and emotional distress, and living a
shorter life span, therefore, the defendants
acts, policies and practices constituted
medical, administrative, official, and
officer malpractice, showed “denial and
deliberate indifference” toward the
necessities in life Plaintiff needed,
treated Plaintiff unequally, and “imposed
atypical and significant hardship upon the
Plaintiff in relation to the ordinary
incidents in prison life,” thus, violating
Plaintiff’s rights secured under the
Kentucky and United States Constitutions and
Laws.
At the conclusion of his complaint, he claims:
82. Therefore, the Defendants have
egregiously, willfully, maliciously, and
unconscionably violated Plaintiff’s rights
secured under Sections 2,8,10,17,254 of the
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Kentucky Constitution, the First, Fourth,
Eighth, Thirteenth, and Fourteenth
Amendments of the United States
Constitution, as well as violating any
rights Plaintiff may have under Kentucky
Statutory Laws, under Kentucky Department of
Corrections Regulations that have the force
and effect of law, and under the general
ruse(s) in Kentucky governing medical,
administrative, official and officer
malpractice.
In his request for relief, he seeks the following
relief:
WHEREFORE, the Plaintiff requests for
the Court to:
1.
Declare the acts, policies and
practices of the Defendants as being
extreme, outrageous, intentional,
harassment, retaliation, that
egregiously, willfully, maliciously,
and unconscionably inflicted injuries
and wanton and unnecessary pains upon
the Plaintiff that caused Plaintiff to
suffer extreme mental and emotional
distress, and after examinations by
competent practioners, resulted in the
contribution to Plaintiff living a
shorter life span.
2.
Order Defendants Vertner L. Taylor and
Glenn Haeberlin to immediately make
“free of charge” to the Plaintiff,
arrangements for the Plaintiff to be
examined by any reasonably competent
practitioner in order to conduct
examinations of Plaintiff and give
“opinions” as to whether or not the
Plaintiff:
A. suffered any long-term injuries from
a crushed chest on May 11, 2000;
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B. suffered any long-term injuries to
his nasal passage on May 11, 2000;
C. suffered any long-term injuries to
his right testicle on May 11, 2000;
D. has contracted cancer, and if so, the
type of cancer and the approximate
date the said cancer was contracted
and if there existed a treatment to
slow down or prevent the contraction
of the said cancer;
E. is a borderline diadetic (sic);
F. is at high-risk of contracting
diadetes (sic) or type ll diadetes
(sic);
G. has contracted herpes, and the type
of herpes contracted;
H. has contracted a scalp disease, and
the type of scalp disease contracted;
I. has a high level of cholesterol; and
J. any other medical or physical ailment
Plaintiff has that may be discovered
during the said examinations; and
K. as to what may have caused the above
A through J, and the recommended
treatment for above A through J.
3.
Award Plaintiff a total of five million
dollars ($5,000,000.00) in compensatory
damages for injuries, pains, and
extreme mental and emotional distress
he has suffered from the Defendants
unlawful acts, policies and practices,
or in the alternative, award the
Plaintiff as much compensatory damages
as the laws will allow.
4.
Award Plaintiff a total of ten million
dollars ($10,000,000.00) in punitive
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damages because, such damages are
proper due to the Defendants willful
and malicious conduct as described on
foregoing Pages 58 and 59 under
numerals 81 and 82, SEE KRS 411.184 and
KRS 411.186, and such said damages
serves to deter the Defendants from
continuing their willful and malicious
conduct, and serves to deter others
from similar behavior, or in the
alternative, award the Plaintiff as
much punitive damages as the laws will
allow.
On July 17, 2003, counsel for the defendants1 filed a
motion to dismiss.
In the motion the defendants requested that
the pleadings be stricken and the claim dismissed.
They alleged
that Smith is a “frequent litigator” and that the “pleadings
serve no legitimate purpose and it mocks the legal process.”
The motion stated that the events Smith complained of were from
a period of time outside the applicable statute of limitations
and that pursuant to KRS 454.405 an inmate’s action can be
dismissed if it is malicious, harassing or factually frivolous.
Following Smith’s response to the motion to dismiss, the Lyon
Circuit Court entered its order of dismissal.
The circuit court
order stated:
The Court hereby dismisses Petitioner’s
claim under KRS 454.405, which allows courts
to dismiss claims “if satisfied that the
action is malicious or harassing of if
satisfied that the action is legally without
merit or factually frivolous.”
1
It should be noted that no appellee brief has been filed in this matter.
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Petitioner has set forth claims against
twenty (20) prison officials
(“Respondents”), asserting mostly that
Respondents have violated his civil rights
by refusing to provide him with adequate
medical care, which resulted in various
personal injuries. Petitioner also claims
that he has been unlawfully prevented from
obtaining prison employment, and further has
unlawfully been forced to work forty (40)
hours of “extra duty” during his yard time.
However, after reviewing Petitioner’s twelve
(12) causes of actions contained in his
sixty-one (61) page complaint, the Court
concludes that the overwhelming majority of
Petitioner’s claims have previously been
barred by the statute of limitations in KRS
413.140.2 The Court further finds that any
other claims set forth by Petitioner fail to
state a cause of action and should therefore
be dismissed under Rule 12.02(f) of the
Kentucky Rules of Civil Procedure.
The Court also notes that Petitioner
has failed to adhere to CR 8.01, which
states that parties should set forth short
and plain statements of claims. The Court
finds that the length of Petitioner’s
complaint serves no legitimate legal purpose
in this matter, but rather is yet another
means for Petitioner to harass Respondents,
leaving them as well as this Court to “sift
through [his] complaint like a minor (sic)
panning for gold.”
Based on all of the foregoing, IT IS
HEREBY ORDERED AND DIRECTED that
Petitioner’s case is hereby DISMISSED.
This is a final and appealable order,
and there is no just cause for delay.
2
KRS 413.140 requires that all claims related to personal injury,
malpractice, negligence, or arising from disciplinary proceedings at
detention facilities must be filed within one (1) year of the injury.
(Footnote in original).
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We have thoroughly reviewed the record, Smith’s
arguments, both at the trial level and to this Court, and the
applicable law and agree that Smith’s civil rights action should
have been dismissed.
The majority of his claims are barred by
the one-year statute of limitations provided for in KRS 413.140.
The remaining allegations against prison personnel were properly
disposed of pursuant to KRS 454.405 in that they were malicious,
harassing, without legal merit and/or factually frivolous.
For the foregoing reasons, the order of dismissal
entered by the Lyon Circuit Court is dismissed.
ALL CONCUR.
BRIEF FOR APPELLANT:
NO APPELLEE BRIEF FILED
Herbert R. Smith, Pro Se
Eddyville, KY
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