KEITH MORGAN v. MICHAEL HORTON; RONNIE MERRITT
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RENDERED: MARCH 10, 2006; 2:00
NOT TO BE PUBLISHED
P.M.
Commonwealth of Kentucky
Court of Appeals
NO. 2005-CA-000690-MR
KEITH MORGAN
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. McDONALD-BURKMAN, JUDGE
ACTION NO. 03-CI-002681
MICHAEL HORTON; RONNIE
MERRITT
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: MINTON AND VANMETER JUDGES; MILLER, SENIOR JUDGE.1
MILLER, SENIOR JUDGE:
Keith Morgan appeals from an order of the
Jefferson Circuit Court dismissing his complaint against
Sergeant, Michael Horton and Chief, Ronnie Merritt pursuant to
Kentucky Rules of Civil Procedure (CR) 41.02 and Kentucky
Revised Statutes (KRS) 454.405.
We are of the opinion that the
circuit court erroneously dismissed the action under CR 41.02
1
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statute 21.580.
and KRS 454.405, nevertheless, Morgan filed his complaint
outside of the limitations period for the causes of action
stated in his complaint.
Dismissal was therefore proper.
We
accordingly affirm.
Morgan alleges that on July 10, 1998, he was arrested
and taken into custody at the Jefferson County Department of
Corrections.
While he was at the booking table, he told an
officer that he had AIDS.
This was overheard by another inmate,
who shouted not to put Morgan in a cell with him.
Thereafter,
Morgan walked toward the cell to ascertain the identity of the
other inmate.
According to Morgan, Merritt and an unknown
officer then grabbed him and rammed his head into the riot glass
surrounding the control center.
Merritt alleges that Horton
stood around while he was beaten and also punched him during the
incident.
According to Morgan, as a result of the incident, he
suffered a large bruise on his head, brain damage, headaches,
and hearing loss.
In 1999 Morgan filed a complaint against the present
defendants in Federal District Court.
On January 18, 2000, the
District Court dismissed the case without prejudice due to
Morgan’s failure to submit a full, completed, and signed
complaint.
Morgan subsequently filed a second action in Federal
Court.
On June 1, 2000, the District Court entered an order
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dismissing Morgan’s claims against Horton for failure to state a
claim upon which relief could be granted, and on July 3, 2000,
dismissed the claim against Merritt as abandoned.
Over two
years later, on October 15, 2002, Morgan filed a Federal Rule of
Civil Procedure 60(b) motion seeking relief from the July 3,
2002, order; the motion was denied as untimely and without merit
by order entered December 19, 2002.
On March 27, 2003, Morgan filed, pro se, a complaint
captioned “Civil Rights Complaint and Demand for Jury Trial” in
the Jefferson Circuit Court.
and Merritt as defendants.
The complaint again named Horton
The complaint alleged that the
defendants violated Morgan’s rights protected by Sections 13,
14, 109, and 112 of the Kentucky Constitution, and protected by
the Fifth, Eighth, and Fourteenth Amendments to the Federal
Constitution.
The complaint requested compensatory, exemplary,
future, and punitive damages totaling $1,250,000.00 and
injunctive relief.
Because Morgan’s complaint raised a federal question
by asserting a violation of his federal constitutional rights,
the defendants removed the action from the Jefferson Circuit
Court to the United States District Court, Western District of
Kentucky, in Louisville pursuant to 28 U.S.C. § 1141.
After conducting an initial screening of the action
pursuant to 28 U.S.C. § 1915A(b)(1), the District Court
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construed Morgan’s federal claims as an action pursuant to 42
U.S.C. § 1983 and subject to the one-year statute of limitations
contained in KRS 412.140(1)(a).
By an opinion rendered November
24, 2003, the District Court dismissed all federal claims as
filed outside of the applicable limitations period.
The
District Court declined to exercise supplemental jurisdiction
over Morgan’s state law claims, and remanded the action to
Jefferson Circuit Court.
By order entered September 16, 2004, the Jefferson
Circuit Court set the matter for a pretrial conference.
On
September 16, 2004, the Jefferson Circuit Court issued an Order
for Appearance of Prisoner, directing the Warden of the Kentucky
State Reformatory to transport Morgan to the Jefferson Circuit
Court on December 6, 2004.
By letter dated October 21, 2004, to the circuit
court, the Justice and Public Safety Cabinet (Cabinet) notified
the Jefferson Circuit Court that it was not able to comply with
the Order for Appearance of Prisoner directing Morgan’s
transport to the Jefferson Circuit Court on December 6, 2004.
The letter stated that “[r]eleasing this inmate to the general
population of a courtroom setting would pose a serious violation
of good security and endangerment to the public at large.”
Morgan subsequently filed a motion for appointment of a guardian
ad litem pursuant to CR 17.04, KRS 31.110, and KRS 453.190.
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On September 12, 2004, Horton and Merritt filed a
motion to dismiss the action, with prejudice, pursuant to CR
41.02 and KRS 454.405.
The motion sought dismissal on the basis
that the Cabinet’s letter that it was unable to comply with the
circuit court’s Order of Transport meant that Morgan would be
unable to comply with the court’s orders concerning court
appearances; that the federal courts had previously dismissed
Morgan’s lawsuits based upon the same facts; and because the
limitations period for bringing the claims stated in Morgan’s
complaint had expired.
On January 25, 2005, the circuit court denied Morgan’s
motion for appointment of a guardian ad litem, and on February
25, 2005, the circuit court granted the defendants’ motion for
dismissal of the action pursuant to CR 41.02 and KRS 454.405. On
February 25, 2005, the circuit court denied Morgan’s motion to
alter, amend, or vacate the aforementioned orders.
This appeal
followed.
Morgan contends that the circuit court erred by
dismissing his claim pursuant to CR 41.02 and/or KRS 454.405,
and erred by failing to appoint a guardian ad litem.
CR 41.02(1) provides that “[f]or failure of the
plaintiff to prosecute or to comply with these rules or any
order of the court, a defendant may move for dismissal of an
action or of any claim against him.”
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Application of CR 41.02 is
a matter that is within discretion of the trial court.
Thompson
v. Kentucky Power Co., 551 S.W.2d 815, 816 (Ky.App. 1977).
Accordingly, we will reverse the circuit court’s decision only
if it abused its discretion by dismissing Morgan’s claim under
CR 42.01.
"The test for abuse of discretion is whether the
trial judge's decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles."
The Goodyear Tire &
Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
Though the trial court did not set forth its basis for
applying CR 41.02 in this case, the order of dismissal granted
the appellees’ motion to dismiss under the rule.
The basis for
dismissal under CR 41.02 as stated in the appellees’ motion is
that Morgan would be unable to attend required court appearances
because the Cabinet was “not able to comply” with the circuit
court’s then pending order of appearance.
The Cabinet’s October
21, 2004, letter stated that it was unable to comply with the
order because “[r]eleasing this inmate to the general population
of a courtroom setting would pose a serious violation of good
security and endangerment to the public at large.”
Thus it
appears that the Cabinet’s refusal to transport Morgan was the
underlying reason for the dismissal.
The circuit court abused its discretion by dismissing
this case under CR 41.02.
The reason that Morgan would be
unable to attend any court appearances is because the Cabinet
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refused to transport him.2
Application of the rule in this way
would make the Cabinet the arbiter of whether an inmate could
pursue a civil lawsuit.
Moreover, the Cabinet’s October 21,
2004, letter stated “[w]e would like to offer to the Court the
ability for the attorneys to take Mr. Morgan’s deposition in
person or to have him available by speaker phone for any
consultation the Court may deem appropriate for whatever issue
is presented in the case,” thereby providing a viable
alternative to the actual transportation of Morgan for personal
court appearances.
Dismissal of Morgan’s claim pursuant to CR
41.02 under these circumstances would be unreasonable, unfair,
and unsupported by sound legal principles, and, hence, an abuse
of discretion.
We are also of the opinion that the circuit court
erred by dismissing Morgan’s complaint in reliance on KRS
454.405.
KRS 454.405 provides, in relevant part, as follows:
At any time, and upon its own motion or on
motion of a party, a court may dismiss a
civil action brought by an inmate or on
behalf of an inmate if satisfied that the
action is malicious or harassing or if
satisfied that the action is legally without
merit or factually frivolous. . . .
. . . .
2
The Department’s proffered reason for its inability to transport Morgan,
i.e., because it would be “a serious violation of good security and
endangerment to the public at large” is questionable. It would seem that by
appropriate shackling or other appropriate security methods, the Department
could comply with the circuit court’s order without endangering the public.
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(3) A court which dismisses a civil action
brought by an inmate for any of the reasons
set out in subsection (1) of this section
shall include as part of its order specific
findings as to the reasons for the
dismissal. The court shall, upon issuing
the order, direct the circuit clerk to
transmit a copy of the entire court order to
the official having custody of the inmate
and to the county attorney of the county
where the action was filed.
. . . .
(5) No inmate may maintain a civil action
for monetary damages in any state court for
mental or emotional injury without a prior
showing of physical injury. (Emphasis
added).
The circuit court’s order of February 25, 2005, does
not comply with KRS 454.405(3) because it does not include as
part of its order specific findings as to the reasons for the
dismissal.
Hence, dismissal under KRS 454.405 was improper.
The appellees argue that in any event dismissal was
proper because Morgan’s claims are barred by the statute of
limitations.
We agree.
While poorly drafted and difficult to understand, we
construe Morgan’s claims against Merritt and Morton as personal
injury claims based upon the July 10, 1998, incident.
As such
the claims are subject to the one-year statute of limitations
for personal injury as stated in KRS 413.140(1)(a).
As did the
Federal District Court, we discern no tolling issues which would
bring the claims within the limitations period.
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Thus, we affirm
the circuit court’s dismissal of the complaint, albeit for a
different reason.
Revenue Cabinet v. Joy Technologies, Inc.,
838 S.W.2d 406, 410(Ky.App. 1992) (A correct decision by a trial
court is to be upheld on review, notwithstanding it was reached
by improper route or reasoning).
Based upon our disposition of the case, Morgan’s
argument that the circuit court erred by failing to appoint a
guardian ad litem is moot.
We accordingly will not address that
issue on the merits.
For the foregoing reasons, the judgment of the
Jefferson Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Keith Morgan, pro se
Kentucky State Reformatory
LaGrange, Kentucky
Suzanne D. Cordery
Assistant Jefferson County
Attorney
Louisville, Kentucky
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