HARRIS (FREDERICK) VS. DUNLAP (JOEL), ET AL.Annotate this Case
RENDERED: DECEMBER 12, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM LYON CIRCUIT COURT
HONORABLE CLARENCE A. WOODALL, JUDGE
ACTION NO. 07-CI-00135
JOEL DUNLAP; WILLIAM THOMAS;
CHAD KNIGHT; TERRY HENDERSON;
JAY JONES; RON YOUNGBLOOD; BILL
GUNNING; CHERYL BENNETT; AND
AFFIRMING IN PART AND REVERSING IN PART
** ** ** ** **
BEFORE: LAMBERT, MOORE, AND WINE, JUDGES.
MOORE, JUDGE: Fredrick Harris appeals from an order of the Lyon Circuit
Court in which the trial court dismissed his petition for declaratory judgment as
time-barred. On appeal, Harris avers, prior to filing his 2007 petition, he originally
filed his petition in 2005, but that petition was returned to him and eventually lost.
Now, he argues his original 2005 petition tolled the statute of limitations.
Agreeing that the statute of limitations was tolled, we affirm in part, reverse in part
I. FACTUAL AND PROCEDURAL BACKGROUND
Harris, while an inmate at the Kentucky State Penitentiary in
Eddyville, Kentucky, was charged with numerous violations of the Department of
Corrections Policies and Procedures. These various allegations were resolved
during three separate disciplinary hearings before the penitentiary’s adjustment
committee. At the first hearing, the committee found Harris guilty of four
violations. Harris appealed to the warden but, on November 7, 2003, the warden
affirmed. At the second hearing, the committee found Harris guilty of one
infraction. Harris appealed to the warden but, on December 23, 2003, the warden
affirmed yet again. At the final hearing, the committee found Harris guilty of two
additional violations. Harris appealed once more, but the warden affirmed the
committee’s decisions on January 7, 2004.
On January 4, 2005, Harris sent a petition for declaratory judgment to
the Lyon Circuit Court. In his petition, Harris named numerous penitentiary
personnel as defendants and made numerous claims for relief, including reversal of
the committee’s various disciplinary decisions. After Harris timely tendered his
2005 petition, the circuit clerk returned the petition without accepting the original
nor issuing summonses, because Harris failed to include a sufficient number of
copies. The clerk instructed Harris to resubmit the petition with additional copies.
Harris claimed he did so on January 11, 2005.
Regardless, Harris’s case stalled. In a letter from the Lyon Circuit
Court to Harris, the court explained:
Justice Cunningham has passed along to me your letter
and enclosed information so that I could check on the
status of your case here in Lyon Circuit Court.
I am sorry to tell you that there is no active file on this
matter and the Clerk has no documents from your
previous filing, apparently having returned them to you,
as you indicated.
My best suggestion is that if you wish to pursue this, you
would simply have to start from scratch and file a new,
original Petition for Declaratory Judgment. . . .
Following the trial court’s advice, Harris filed a second petition on
May 14, 2007, over three years after the warden resolved the last of Harris’s
appeals. The defendants promptly moved to dismiss Harris’s 2007 petition,
arguing it was filed outside the applicable statute of limitations found in Kentucky
Revised Statute (KRS) 413.140(1)(k). The trial court granted the defendants’
motion, dismissing Harris’s 2007 petition. Subsequently, Harris appealed.
II. STANDARD OF REVIEW
According to Kentucky Civil Rule of Procedure (CR) 12.03, if, on a
motion to dismiss, the trial court considers matters outside the pleadings, then the
trial court must treat the motion as one for summary judgment. Because the Lyon
Circuit Court considered matters outside the pleadings, it should have construed
the defendants’ motion as a motion for summary judgment.
“The standard of review on appeal of a summary judgment is whether
the trial court correctly found that there were no genuine issues as to any material
fact and that the moving party was entitled to judgment as a matter of law.”
Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).
Citing very old caselaw, i.e., Day & Congleton Lumber Co. v. Mack,
139 Ky. 587, 69 S.W. 712 (1902), Commonwealth v. O’Bryan, Utley & Co., 153
Ky. 406, 155 S.W. 1126 (1913), and Daniel v. Blankenship, 177 Ky. 726, 198 S.W.
48 (1917), Harris argues his petition should have been considered filed when he
tendered it to the Lyon Circuit Clerk in January 2005. Moreover, he contends his
petition was filed within the one-year statute of limitations as he tendered it in
good faith with the intention that summonses be issued.
In the trial court’s order dismissing Harris’s petition, it stated:
The Petitioner Frederick Harris apparently filed this
action in January, 2005. His Pleadings are wellorganized and easy to follow. He has objected to the
dismissal on the Statute of Limitations defense because
of his filing in January, 2005 and the apparent loss of his
original Petition and any copies he may have submitted
to the Lyon Circuit Clerk on or soon after January 22,
As admitted by the Petitioner, KRS 413.140(1)(k) and (7)
is the one year Statute of Limitations applicable to prison
disciplinary proceedings. See Million v. Raymer, 139
S.W.3d 914 (Ky. 2004). . . .
The Petitioner candidly admits that the current filing is
outside of the one year period but logically states the
Statute of Limitations should not constitute a defense
because he denies that the loss of [the 2005] documents
was his fault.
KRS 413.250 provides:
An action shall be deemed to commence on
the date of the first summons or process
issued in good faith from the court having
jurisdiction of the cause of action.
Also see Gibson v. EPI Corp., 940 S.W.2d 912 (Ky. App.
A litigant is responsible for being sure that all appropriate
steps have been taken and is presumed to know what the
Statute of Limitations is. See Pospisil v. Miller, 343
S.W.2d 392 (Ky. 1961).
Despite the Petitioner’s attempts to have his case filed in
January, 2005, this action was not actually commenced
as required until it was filed in May, 2007, and
appropriate summonses were issued with that filing. The
Petitioner apparently did not inquire about the status of
this between January, 2005, and April, 2007.
At the time the trial court handed down its decision, it was following
the existing caselaw. However, the Supreme Court has recently revisited the issue
of when an action commences in light of the applicable statute of limitations in
Nanny v. Smith, 260 S.W.3d 815 (Ky. 2008). In that case, the appellant decided to
file a lawsuit against the appellee. According to the applicable statute of
limitations, the appellant had until October 20, 2003, to file her action. The
appellant personally delivered the complaint to the circuit clerk’s office on October
18, 2003; however, the clerk did not file the complaint and did not issue the
required summons until October 21, 2003, one day after the statute of limitations
had ran. Id. at 816. As a result, the circuit court dismissed the appellant’s action.
Upon discretionary review, the Supreme Court held the following:
Once [the appellant] delivered the complaint, she could
reasonably expect that the summons would be issued
within the statutory period. At that point, [the appellant]
had no further duty to ensure that the clerk issued the
summons within the limitations period. CR 4.01
(“[u]pon the filing of the complaint . . . the clerk shall
forthwith issue the required summons and, at the
direction of the initiating party, either” serve the
summons and complaint by mail or transfer the summons
and complaint to an authorized person for delivery and
service); KRS 30A.030(1); Louisville & N.R. Co. v.
Smith’s Adm’r, 10 Ky. L. Rptr. 514, 87 Ky. 501, 9 S.W.
493, 495 (1888) (“[I]t is the official duty of the clerk to
issue the summons in accordance with law, and it is not
incumbent upon the plaintiff to see that he issues it in
accordance with law.”). Nor did [the appellant] have the
power to compel the clerk to issue summons since, by
statute, the clerk is under the supervision of the Chief
Justice, not [the appellant] or her attorney. KRS
Because [the appellant] had neither the power nor the
duty to ensure that the clerk perform official duties, she
was prevented by circumstances beyond her control from
having the summons issued in time. We believe that
under these facts, [the appellant] should not be held
responsible for such circumstances. See Prewitt v.
Caudill, 250 Ky. 698, 63 S.W.2d 954, 958-59 (1933)
(upholding the petitioner’s right to maintain an election
contest on the basis that he was prevented by
circumstances beyond his control from having the
summons issued in time and that the delay in issuing the
summons was due solely to the fault of the circuit clerk
over whom the petitioner had no control).
At all levels of the judicial process, promptness in filing
is essential to the proper function of the court system.
However, under the unique facts presented here, we are
simply deeming done what should have been done per
CR 4.01 by recognizing an equitable tolling of the statute
of limitations. Robertson v. Commonwealth, 177 S.W.3d
789 (Ky. 2005) (holding that equitable tolling is
appropriate in circumstances that are beyond the party’s
control when the party has exercised due diligence and is
Nanny complied with the spirit of the law and should not
be punished for the clerk’s failure to promptly perform
official duties mandated by statute and court rule.
Id. at 817-818.
While we acknowledge Harris failed to include a sufficient number of
copies when he first tendered the 2005 petition to the circuit clerk, prompting the
clerk to return the petition, this does not weigh against Harris as he was, and is, a
pro se litigant. It is well established in the Commonwealth that the courts will not
hold a pro se litigant to the same standard as legal counsel, treating the pro se
litigant with leniency. See Commonwealth v. Miller, 416 S.W.2d 358, 360 (Ky.
1967), and Case v. Commonwealth, 467 S.W.2d 367, 368 (Ky. 1971). Taking such
leniency into consideration, we can find no meaningful distinction between the
facts in the present case and the facts in Nanny. Consequently, we find that case to
be on point.
Like the appellant in Nanny, Harris delivered his complaint to the
appropriate clerk within the timeframe of the applicable statute of limitations.
However, the clerk refused the petition and never issued the necessary summonses
to commence Harris’s case. While Harris did not supply the correct number of
copies of his petition, as a pro se litigant, he should have been treated more
leniently. The failure to issue summonses was not Harris’s fault; likewise, there is
nothing in the record to suggest the loss of Harris’s 2005 petition was his fault,
either. Similarly, Harris had no control over the clerk’s actions or, in this case,
inaction. Thus, in light of Nanny, we conclude the statute of limitations was
equitably tolled until the clerk issued the appropriate summonses in 2007.
Nevertheless, we note Harris’s petition challenges the efficacy of
several different appeals from the warden of the Kentucky State Penitentiary. The
documents resolving these appeals were issued on three different dates: November
7, 2003; December 23, 2003; and January 7, 2004. The applicable statute of
limitation is one year, and it commences to run on the date the warden resolves the
appeal. KRS 413.140(1)(k) and (7). So, in order to challenge the November 7
appeals, Harris must have filed his petition within one year of that date. Likewise,
to challenge the December 23 appeal, he was required to have filed his petition
within a year of that date. He did neither. He filed his 2005 petition within a year
of the last appeals. Consequently, while the statute of limitations was equitably
tolled, it was only tolled regarding the January 7 appeals.
For the foregoing reasons, the order of the Lyon Circuit Court
dismissing Harris’s petition is affirmed as to the November 7 and December 23
appeals but is reversed regarding the January 7 appeals and remanded for further
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Frederick Harris, pro se
James D. Godsey
Justice and Public Safety Cabinet
Office of Legal Services