Sperry v. McKune

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 112,455

JEFFREY SPERRY,
Appellant,

v.

DAVID MCKUNE (Warden), et al.,
(Raymond Roberts, Kansas Department of Corrections),
Appellees.

SYLLABUS BY THE COURT

1.
A petition may be dismissed under K.S.A. 2015 Supp. 60-212(b)(6) for failure to
state a claim upon which relief can be granted. A district court considering a motion to
dismiss filed under K.S.A. 2015 Supp. 60-212(b)(6) must decide the motion from the
well-pleaded facts of plaintiff's petition.

2.
Under K.S.A. 2015 Supp. 60-210(c), a written instrument attached as an exhibit to
a pleading is a part of the pleading for all purposes. Hence, documents attached to a
petition can be considered when ruling on a motion to dismiss under K.S.A. 2015 Supp.
60-212(b)(6).

3.
If, on a motion under K.S.A. 2015 Supp. 60-212(b)(6) or (c), matters outside the
pleadings are presented to and not excluded by a court, the motion must be treated as one

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for summary judgment under K.S.A. 2015 Supp. 60-256. As defined in K.S.A. 2015
Supp. 60-207(a), a "pleading" consists of a petition and an answer.

4.
When a motion to dismiss converts to a motion for summary judgment, all parties
must be given a reasonable opportunity to present all the material that is pertinent to the
motion. K.S.A. 2015 Supp. 60-256 and Supreme Court Rule 141 (2015 Kan. Ct. Annot.
242) govern the form and manner of presenting these outside matters.

5.
Before an inmate in the custody of the Kansas Secretary of Corrections files a civil
suit against the state, any political subdivision of the state, or any public official, K.S.A.
75-52,138 requires an inmate to (1) exhaust administrative remedies established by rules
and regulations promulgated by the secretary of corrections and (2) file with the inmate's
petition proof that the administrative remedies have been exhausted.

6.
Both federal and state law require an inmate in the custody of the secretary of
corrections to exhaust administrative remedies before filing a lawsuit. But only a state
claim is impacted by K.S.A. 75-52,138's requirement that an inmate file proof of having
exhausted administrative remedies; the requirement does not apply to a federal claim.

7.
A district court considering a motion to dismiss filed under K.S.A. 2015 Supp.
60-212(b)(6) errs when it considers matters outside the pleadings without requiring
litigants to comply with Supreme Court Rule 141 (2015 Kan. Ct. Annot. 242). The error
can be harmless if, for example, (1) the district court had excluded from its consideration

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any matters outside those in the petition; (2) the additional material did not otherwise
infect the district court's consideration; or (3) the subsequent filings allowed for the
proper presentation of the minimal number of uncontroverted facts required to establish a
defendant's entitlement to relief. Reversible error occurs, however, if an appellate court
cannot determine what facts are or are not controverted or on what evidence the litigants
rely.

8.
While a court will liberally construe the pleadings of pro se litigants, pro se
litigants must still follow procedural rules.

Review of the judgment of the Court of Appeals in an unpublished opinion filed June 5, 2015.
Appeal from Leavenworth District Court; DAN K. WILEY, judge. Opinion filed November 23, 2016.
Judgment of the Court of Appeals affirming in part, reversing in part, and remanding is reversed on the
issues subject to review. Judgment of the district court is reversed on the issues subject to review and
remanded with directions.

Jeffrey J. Sperry, appellant, was on the brief pro se.

Fred W. Phelps, Jr., legal counsel, Kansas Department of Corrections, was on the brief for
appellees.

The opinion of the court was delivered by

LUCKERT, J.: K.S.A. 75-52,138 requires prison inmates to (1) exhaust
administrative remedies before filing a civil lawsuit against the Kansas Secretary of
Corrections, a prison warden, or certain other officials and (2) file proof of that
exhaustion when initiating the suit. This appeal raises procedural issues regarding these
requirements and the standards for deciding motions to dismiss and for summary

3
judgment. Because we determine the district court and Court of Appeals failed to apply
the correct standard, we reverse and remand.

FACTUAL AND PROCEDURAL HISTORY

In September 2011, Jeffrey Sperry, an inmate at the Lansing Correctional Facility
(LCF), filed a lawsuit in district court seeking civil damages from the LCF Warden, the
Secretary of Corrections for the State of Kansas, and the Kansas Department of
Corrections (KDOC) (collectively, the KDOC defendants). Sperry, acting on his own
behalf, alleged he had been exposed to asbestos and lead paint while incarcerated at LCF.
After Sperry filed his lawsuit, this case's procedural path involved a series of motions to
dismiss that eventually led to this appeal. Those motions focus on the allegations in
Sperry's verified petition, which he captioned a "Complaint."

In that document, Sperry alleged that in January 2010 he first learned he had been
exposed to contaminants. He sought medical treatment in March 2010, but a "facility
doctor examined [Sperry] and told him that there was nothing he could do for him."
Sperry also sought "mental health counseling," but the "psychologist simply told [Sperry]
that worrying would not help his condition so he should not worry about the fact that he
will become seriously ill and die prematurely due to the exposure." To remedy these
alleged wrongs, Sperry sought an injunction ordering the KDOC defendants to treat
Sperry's current and future medical needs through medical personnel and facilities of
Sperry's choosing; an injunction ordering the KDOC defendants to remove all dangerous
environmental contaminants from LCF; a declaratory judgment that the KDOC
defendants "knowingly and/or recklessly caused [Sperry] to be exposed to friable
asbestos and lead paint"; and monetary damages in excess of $75,000.

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 As a means of obtaining this relief, Sperry alleged causes of action based on both
federal and state law. He first alleged his federal cause of action, asserting he was entitled
to redress under 42 U.S.C. § 1983 (2012) because the KDOC defendants violated his
right under the United States Constitution to be free from cruel and unusual punishment.
He then alleged several torts governed by Kansas law: negligence, battery, breach of
fiduciary duty, and outrageous conduct.

Sperry also addressed his efforts to obtain administrative relief prior to filing his
lawsuit. According to him:

 He filed his first internal grievance with LCF in March 2010, but "[t]he
facility refused to process the grievance." He did not attach any documents
related to this first grievance, but he did attach a contemporaneous claim he
filed with the Joint Committee on Special Claims Against the State,
pursuant to K.S.A. 46-907 et seq., which was denied in September 2010.

 He filed a second grievance with LCF in October 2010, but LCF lost the
form. Sperry did not attach a copy of this second grievance, either, but he
included a document from a KDOC official acknowledging this filing and
stating, "I can only suspect that it was lost in the mail or misplaced."

 He filed a replacement grievance in November 2010, which was "denied all
the way through to the Secretary of [C]orrections on December 17, 2010."
Sperry attached this third grievance and related documents to his
"Complaint."

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 These attached documents show that Sperry filed the November grievance on
KDOC forms relating to one of two KDOC administrative procedures that potentially
applied to his claims. KDOC defines both procedures in its regulations. K.A.R. 44-15-
101 et seq. defines one procedure (article 15 procedure) for grievances relating to, for
example, prison conditions. K.A.R. 44-16-102 et seq. defines the other (article 16
procedure), which applies when an inmate claims property damage or personal injury.
KDOC has adopted separate forms for each procedure.

From the documents attached to Sperry's petition, we know that Sperry used an
article 15 form when filing his November 2010 grievance and that the grievance was
reviewed and denied at three administrative levels—by his unit supervisor, the Warden,
and the Secretary of Corrections. Ultimately, the Secretary, incorporating the previous
responses, denied Sperry's claim because Sperry had not been exposed to harmful
contaminants and had not filed an article 16 claim even though he claimed personal
injury and sought monetary damages.

In response to Sperry's petition in district court, the KDOC defendants filed
multiple motions to dismiss the lawsuit. The first motion raised various issues not
presented in this appeal: whether the KDOC defendants lacked the capacity to be sued,
whether they enjoyed immunity, and whether Sperry failed to adequately allege various
claims. Then, in a "Supplement to Motion to Dismiss," the KDOC defendants raised the
issue now before us: whether Sperry exhausted his administrative remedies before filing
suit. The KDOC defendants' arguments focused on Sperry's failure to file an article 16
claim. To support this argument, the KDOC defendants attached an affidavit of the
Grievance/Property Claims Officer at LCF, who stated he reviewed all available LCF
records and was unable to find any personal injury claim filed by Sperry.

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 Sperry responded to both the motion and its supplement, raising several legal
arguments regarding the KDOC defendants' capacity to be sued and the reasons they
were not immune, the sufficiency of his allegations, and the inapplicability of article 16.
He pursued some of those arguments before the Court of Appeals but did not advance
them in his petition for review filed with this court. But Sperry also replied to the motions
by raising an issue preserved for our review: He argued the KDOC defendants waived
any requirement that he exhaust an article 16 procedure by taking certain actions during
the grievance process. When Sperry first raised his waiver argument, he asserted the
KDOC employees provided him with the wrong claim form. He also pointed to KDOC's
Internal Management Policy and Procedure (IMPP) 01-118, which stated that "[s]taff
assistance and all necessary forms shall be provided to inmates interested in filing a
claim." In other words, Sperry acknowledged he never pursued an article 16 claim, but he
argued this failure was excused because KDOC wrongfully provided him article 15
forms.

In ruling on this first motion to dismiss and its supplement, the district court
granted some aspects of the KDOC defendants' various arguments about capacity; this
resulted in dismissal of KDOC itself as a party. In addition, the district court dismissed
Sperry's personal injury claim and request for damages against the Warden and Secretary
in their official capacities because Sperry had failed to exhaust administrative remedies
when he did not file a timely article 16 claim. The court noted that Sperry "does not deny
that he did not submit a personal injury claim within 10 calendar days of the claim[ed]
personal injury." Then, addressing Sperry's waiver argument, the district court simply
concluded: "The [d]efendants didn't relinquish a known right by allegedly failing to
provide forms to the Plaintiff." The court observed that the argument seemed to be more
one of estoppel than waiver. Without asking the litigants for arguments or to present a
statement of facts relating to the elements of estoppel, the district court determined

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Sperry could not establish estoppel because he had not detrimentally relied on the KDOC
defendants. This determination appears to have been based on arguments Sperry
presented in an effort to establish that the article 16 procedure did not apply to his claim.

After the district court's ruling, Sperry's claims against the Warden and Secretary
in their individual capacities—as opposed to official capacities—remained.

Sometime after the district court's ruling, Sperry filed an "Amended Complaint"
without any attached documents. In many respects the "Amended Complaint" mirrored
the original "Complaint." For example, Sperry again alleged that the KDOC defendants
had "refused to process" his March 2010 grievance, lost his October 2010 grievance, and
denied his November 2010 replacement grievance "all the way through[] to the Secretary
of Corrections." But the amended pleading also differed from the original in several
ways. Of note, Sperry did not specifically allege violations of state law; his jurisdictional
statement was limited to "civil rights claims," and he listed only a single cause of action:
"Eighth Amendment—Cruel and Unusual Punishment." Nevertheless, for reasons not
made clear in the record before us, the parties and the district court continued to discuss
the state law tort claims found in Sperry's original "Complaint." We can only assume the
reasons are explained in a hearing not transcribed for appeal since the State does not
assert error on this point. So we, too, will consider those claims.

Almost 2 years later, the district court dismissed all remaining claims when ruling
on multiple motions to dismiss filed by the Warden and Secretary. In those motions the
Warden and Secretary had argued, among other things, that all of Sperry's claims arose
from actions subject to the prison's administrative grievance process. They renewed their
argument that Sperry had never filed an article 16 personal injury claim and needed to do
so. Finally, they argued Sperry failed to comply with K.S.A. 75-52,138 because he had

8
not and could not provide proof that he had timely exhausted administrative remedies
prior to filing the lawsuit.

In response, Sperry asserted he had filed some type of claim within 10 days to put
the facility on notice—his March 2010 grievance—and it was LCF's fault he was
provided the wrong form. He supported his argument with a statement of facts, which
consisted of a series of numbered paragraphs. These facts were not verified, supported by
an affidavit, or supported by references to the discovery record.

Sperry also addressed, in his response to the State's motion to dismiss, the timing
of his claims' accrual and of his grievance filing. In one statement of fact, Sperry
indicated he learned of his exposure to contaminants on February 22, 2010; this statement
conflicted with Sperry's previous sworn statement in his verified "Complaint" that he had
learned of his exposure to contaminants in January 2010. In another statement of fact,
Sperry stated prison officials placed him in segregation for an alleged disciplinary
violation on February 23, 2010, and "separated [him] from his rule book." He also
alleged: "Unit Team Manger Jewell was in charge of segregation at the time and refused
to supply plaintiff with the appropriate forms. In fact, he made certain that he did not
return the grievance form until the ten calendar days for filing the injury claim form had
passed."

Regarding the form used to file the grievance, Sperry alleged he used the form
provided by prison officials. He also argued his grievance "clearly contained matters that
were valid under the grievance procedure (i.e.[,] remediation of asbestos and lead paint[]
and medical treatment)." Sperry asserted the Warden "falsely" denied the grievance—
and, for the first time, he attached some documentation about this alleged March 2010
grievance: a March 26, 2010, letter from the Warden stating that his grievance was

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received, an investigation was completed, and LCF declined to take action. According to
Sperry, he appealed the Warden's denial to the Secretary but "the appeal was never
returned to him." Finally, Sperry alleged he "tried to file an out of time Property/Injury
Claim form, but Unit Team Manager Muckenthaler refused to process it as it was beyond
the 10 calendar day time limitation set forth in K.A.R. 44-16-104a." Sperry thus
reiterated and expanded upon his argument that LCF had wrongfully provided him with
article 15 procedure forms and thus could not now claim his lawsuit must fail because of
a failure to pursue an article 16 procedure.

The district court rejected Sperry's waiver arguments. In reaching this result, the
district court reasoned that Sperry had not alleged ultra vires acts on the part of the
defendants—"all of the acts allegedly attributed to the Defendants would have clearly
been within their dut[ies]." Thus, Sperry had to exhaust administrative remedies before
filing a lawsuit against the Warden and Secretary in their individual capacities, which
meant that Sperry was required to timely file an article 16 personal injury claim but had
failed to do so. The district court rejected Sperry's argument that the KDOC defendants
had waived reliance on K.A.R. 44-16-104a and K.S.A. 75-52,138's exhaustion
requirement. In doing so the district court incorporated its earlier ruling that the KDOC
defendants had not knowingly waived a known right.

Sperry appealed both dismissal orders to the Court of Appeals. A panel of that
court affirmed the district court's order in part, reversed it in part, and remanded for
further proceedings. Sperry v. McKune, No. 112,455, 2015 WL 3632752 (Kan. App.
2015) (unpublished opinion). Specifically, the panel affirmed the dismissal of Sperry's
state law claims and reversed the dismissal of his § 1983 claim. 2015 WL 3632752.

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 The Court of Appeals began its analysis by acknowledging that both Kansas and
federal law require exhaustion of administrative remedies before an inmate can file suit in
trial court. Nevertheless, because of different statutory schemes for state and federal
claims, the issue under federal law was whether Sperry exhausted his remedies; the issues
under Kansas law, under K.S.A. 75-52,138 specifically, were whether Sperry exhausted
his remedies and provided proof he did so. 2015 WL 3632752, at *3-4. K.S.A. 75-52,138
thus imposed a filing requirement in addition to an actual exhaustion requirement.

After recognizing the exhaustion requirement, the Court of Appeals discussed the
question of which administrative procedures Sperry was supposed to follow in order to
exhaust his remedies, concluding the article 16 procedures applied because Sperry
claimed personal injury. 2015 WL 3632752, at *4-5. The Court of Appeals noted it was
uncontested Sperry did not comply with the article 16 personal injury procedures. And
even though Sperry claimed he filed some sort of claim on March 1, 2010, he did not—at
least at the time he filed his petition—provide any proof of this initial grievance or the
KDOC defendants' responses. The court ruled Sperry both failed to follow the proper
procedure for exhaustion of a personal injury claim and failed to file proof of exhaustion.
2015 WL 3632752, at *6; see K.S.A. 75-52,138.

The Court of Appeals then acknowledged an argument could be made that Sperry
exhausted his administrative remedies under the article 15 grievance procedures, since his
documentation showed he filed a grievance regarding conditions within the facility.
Regardless, he still failed to file proof of timely exhaustion of administrative remedies,
and this failure was determinative of his state law claims because of K.S.A. 75-52,138's
filing requirements. Thus, the Court of Appeals concluded, whether Sperry was required
to file a personal injury claim or instead was required to file a grievance, his state law
claims failed for failure to attach proof. 2015 WL 3632752, at *6.

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 The Court of Appeals then turned to Sperry's federal § 1983 claim, which, unlike
his state law claims, was not subject to Kansas law requiring an inmate to file proof of
exhaustion when filing his lawsuit. The Court of Appeals ultimately concluded that
exhaustion requirements for Sperry's § 1983 claim were mandatory, but not
jurisdictional—meaning defendants like the Warden and the Secretary could waive their
ability to use administrative exhaustion as an affirmative defense to an inmate's suit.
2015 WL 3632752, at *6-7. The Court of Appeals focused on Sperry's initial grievance in
March 2010 instead of the November 2010 procedure considered by the district court,
even though Sperry did not file any evidence of a March 2010 grievance until well after
his petition was filed. The Court of Appeals found that the Warden addressed the merits
of Sperry's March 2010 claim rather than rejecting it for a failure to comply with the
article 16 claims procedure. This led the Court of Appeals to conclude: "KDOC waived
its right to assert exhaustion of administrative remedies as an affirmative defense when it
addressed the merits of Sperry's initial grievance . . . ." 2015 WL 3632752, at *8.
Consequently, the Court of Appeals held the district court erred in dismissing Sperry's
§ 1983 claim. 2015 WL 3632752, at *8.

The Warden and the Secretary of Corrections then filed a petition seeking review
of the panel's ruling regarding Sperry's § 1983 claim; they argued the waiver issue could
not be considered because of procedural defects. Sperry cross-petitioned for review of the
panel's decision regarding his state causes of action; he argued, in part, the waiver
considerations the Court of Appeals had applied to his federal claim should also apply to
his state claims. We initially denied the Warden and Secretary's petition, but we granted
review of Sperry's cross-petition and the case was docketed. However, after reviewing the
record and considering Sperry's cross-petition, we withdrew our denial of the Warden and
Secretary's petition for review and granted review. Two circumstances prompted our

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change in direction. First, on June 6, 2016, the United States Supreme Court issued Ross
v. Blake, 578 U.S. ___, 136 S. Ct. 1850, 195 L. Ed. 2d 117 (2016), which deals with the
exhaustion of administrative remedies when an inmate brings a § 1983 claim. As we will
discuss in detail, this decision raises potential questions about some of the Court of
Appeals' and district court's reasoning. Second, our review of the full record suggested
there were procedural obstacles that precluded a final determination of the waiver issue.

Our change of course, while unusual, is within our power and is warranted in this
case. Under our rules, a party may not file a motion for reconsideration after a petition for
review has been denied. Supreme Court Rule 8.03(g) (2015 Kan. Ct. R. Annot. 78).
Nevertheless, this court has recognized its power to recall, correct, amplify, or modify its
own mandate. E.g., West v. Insurance Co., 105 Kan. 414, 415-16, 185 P. 12 (1919). And
here, a mandate had not even issued because of the pendency of Sperry's cross-petition
for review. Further, this court has repeatedly observed the need for the discretionary
power to reconsider a prior ruling, stating: "If an erroneous decision has been made, it
ought to be corrected speedily, especially when it can be done before the litigation in
which the error has been committed has terminated finally." Railway Co. v. Merrill, 65
Kan. 436, 451, 70 P. 358 (1902); see Hudson v. Riley, 114 Kan. 332, 335, 219 P. 499
(1923) ("If there was error in the ruling it is competent for the court to correct it, and
especially where it can be done before the litigation in which it occurred has been finally
terminated."); Henry v. Railway Co., 83 Kan. 104, 108-09, 109 P. 1005 (1910) (errors
should be corrected before final judgment).

Given these considerations we granted review, allowed both parties to file
additional briefing, and placed the case on another docket for simultaneous consideration
of all issues. Both the petition and cross-petition are now ready for decision.

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 ANALYSIS

The Warden and Secretary present a seemingly straightforward argument in their
petition for review: The district court and Court of Appeals erred in considering material
outside the pleadings when ruling on motions to dismiss. This would mean that the Court
of Appeals should not have considered the Warden's response to Sperry's March 2010
grievance (which, as we have repeatedly underscored above, Sperry filed after his initial
pleading). And, because that document served as the basis for the Court of Appeals
ruling, the Court of Appeals should not have reversed the district court order dismissing
Sperry's federal claim.

In Sperry's cross-petition he argues the district court and Court of Appeals erred in
ruling his failure to attach proof that he exhausted his administrative remedies required
dismissing his state law claims. He argues the exhaustion requirements of K.S.A. 75-
52,138 are not jurisdictional and he should have had a chance to correct any filing errors.
Then, as with his federal claim, he should be allowed to present evidence of waiver. He
suggests the Court of Appeals inconsistently applied equitable doctrines to his federal and
state claims and that equity should excuse both his failure to timely exhaust
administrative remedies and his initial failure to prove he did so.

The arguments arising from the petition and cross-petition are intertwined, so we
discuss them together. In our analysis, we will examine: (1) the motion to dismiss
standard and the standard for when material outside the pleadings is considered (i.e., the
summary judgment standard); (2) K.S.A. 75-52,138 and the federal requirements
regarding exhaustion of administrative remedies; (3) the specifics of what Sperry needed
to do to exhaust those requirements—that is, the requirements of KDOC regulations

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regarding article 15 and 16 claims; (4) equitable considerations; and (5) whether the
district court and Court of Appeals applied the correct standards in this case.

1. Motion to Dismiss Standard and Standard When Material Outside the Pleadings is
Considered (i.e., the Summary Judgment Standard)

As the Warden and Secretary point out, each of the motions considered by the
district court and Court of Appeals was labeled as a motion to dismiss. But only the third
motion cited a statute for authority. It referred to K.S.A. 2015 Supp. 60-212(b)(6), which
allows dismissal for "failure to state a claim upon which relief can be granted." And as
the Warden and Secretary also point out, a district court, when considering such a
motion, must decide it "from the well-pleaded facts of plaintiff's petition." Hemphill v.
Shore, 295 Kan. 1110, 1117, 289 P.3d 1173 (2012).

When considering the well-pleaded facts of the petition, K.S.A. 75-52,138 adds a
wrinkle to the usual considerations because it requires an inmate to file proof of
exhaustion with a petition initiating suit against any of the KDOC defendants; in an
attempt to do so, Sperry attached some documents to his first filing. We know, through
operation of K.S.A. 2015 Supp. 60-210(c), that documents attached to a petition can be
considered when ruling on a 60-212(b)(6) motion. See K.S.A. 2015 Supp. 60-210(c) ("A
copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all
purposes."). This means the district court, in reviewing the KDOC defendants' motion to
dismiss, should have considered Sperry's petition as well as his attached exhibits
regarding his claim with the Joint Committee on Special Claims Against the State and his
November 2010 replacement grievance.

The KDOC defendants did not solely base their first motion seeking dismissal for
failure to exhaust administrative remedies on the facts pleaded by Sperry, however.

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Instead, they filed the affidavit of the Grievance/Property Claims Officer at LCF, who
stated he reviewed all available LCF records and was unable to find any personal injury
claim filed by Sperry. By filing this affidavit, the KDOC defendants introduced matters
outside the pleadings. This changed the appropriate standard for the motion.

K.S.A. 2015 Supp. 60-212(b)(6) explains this shift. It provides: "If, on a motion
under subsection (b)(6) or (c), matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for summary judgment under
K.S.A. 60-256." K.S.A. 2015 Supp. 60-212(d). By definition, a "pleading" consists of a
petition and an answer and not a filing such as the KDOC defendants' supplement to its
motion to dismiss. K.S.A. 2015 Supp. 60-207(a). Thus, in this case, the
Grievance/Property Claims Officer's affidavit should have served as the catalyst for
converting the KDOC defendants' motion to dismiss into one for summary judgment.

When a motion to dismiss converts to a motion for summary judgment, "[a]ll
parties must be given a reasonable opportunity to present all the material that is pertinent
to the motion." K.S.A. 2015 Supp. 60-212(d). K.S.A. 2015 Supp. 60-256 and Supreme
Court Rule 141 (2015 Kan. Ct. Annot. 242) govern the form and manner of presenting
these outside matters. Rule 141 requires statements of fact to be set out in separately
numbered paragraphs, with documentation and record citations to support the factual
statements. Supreme Court Rule 141(a). The opposing party may then controvert the
facts, again with documentation and record citations. Supreme Court Rule 141(b). Under
K.S.A. 2015 Supp. 60-256(c)(2), summary judgment "should be rendered if the
pleadings, the discovery and disclosure materials on file, and any affidavits or
declarations show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law."

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 Neither the parties, the district court, nor the Court of Appeals cited the summary
judgment standard. Yet, both the district court and the Court of Appeals considered the
fact established by the affidavit presented by the KDOC defendants. Because a matter
outside the pleading was not excluded, the summary judgment standard should have been
applied and the questions addressed by the district court should have been whether there
were any genuine issues of material fact and whether the KDOC defendants were entitled
to judgment as a matter of law. And, as we will explain in more detail, the district court's
and Court of Appeals' error in considering the facts in a manner contrary to K.S.A. 2015
Supp. 60-212, K.S.A. 2015 Supp. 60-256, and Supreme Court Rule 141 dictates the
outcome of this appeal. To frame that procedural discussion, we need to discuss the law
to determine what facts were material to the exhaustion issue.

2. K.S.A. 75-52,138 and Federal Law Require Inmates to Exhaust Administrative
Remedies.

The Kansas Legislature defined an inmate's burden regarding exhaustion in K.S.A.
75-52,138. It states, in part:

"Any inmate in the custody of the secretary of corrections . . . , prior to filing any
civil action naming the state of Kansas, any political subdivision of the state of Kansas,
any public official, the secretary of corrections, [or] the warden . . . as the defendant
pursuant to the rules of civil procedure, shall have exhausted such inmate's administrative
remedies, established by rules and regulations promulgated by the secretary of
corrections . . . , concerning such civil action."

This portion of K.S.A. 75-52,138 corresponds to the federal Prison Litigation
Reform Act (PLRA), which similarly requires all inmates to exhaust their administrative
remedies prior to filing a civil suit in court. See 42 U.S.C. § 1997e(a) (2012) ("No action
shall be brought with respect to prison conditions under [§] 1983 . . . , or any other

17
Federal law, by a prisoner . . . until such administrative remedies as are available are
exhausted.").

K.S.A. 75-52,138 contains an additional provision, absent from federal law,
imposing a requirement of proof of exhaustion. Specifically, it states: "Upon filing a
petition in a civil action, such inmate shall file with such petition proof that the
administrative remedies have been exhausted." (Emphasis added.) K.S.A. 75-52,138. In
contrast, the United States Supreme Court has held that, while "failure to exhaust is an
affirmative defense under the PLRA, . . . inmates are not required to specifically plead or
demonstrate exhaustion in their complaints." (Emphasis added.) Jones v. Bock, 549 U.S.
199, 216, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007).

When a state court considers an inmate claim under a federal law such as
42 U.S.C. § 1983, the Supremacy Clause of the United States Constitution preempts any
state laws or rules that inhibit prosecution of such a claim in a manner different from
what would be required in federal court. See Prager v. Kansas Dept. of Revenue, 271
Kan. 1, 14-15, 20 P.3d 39 (2001) (citing United States Supreme Court decisions holding
that a state cannot rely on a rule of procedure or an exhaustion rule that would
"'frequently and predictably'" produce different outcomes in federal civil rights litigation
based solely on whether that litigation takes place in state or federal court). Hence, when
an inmate states a claim under 42 U.S.C. § 1983, a Kansas state court can enforce Kansas'
requirement that an inmate exhaust administrative remedies before filing suit because the
same requirement is present in federal law, but it cannot impose a pleading requirement
not found in federal law.

This means that, under both federal and state law, Sperry must have exhausted his
administrative remedies—those remedies made available by the prison system in which

18
he is housed. But only his state claim is impacted by K.S.A. 75-52,138's pleading
requirement. As a result, while Sperry had to file proof that he had exhausted
administrative remedies when filing his petition in order to bring state law claims, he did
not need to do so to bring his federal claim.

K.S.A. 75-52,138 also explains how exhaustion is to be determined; it requires an
inmate to exhaust administrative remedies "established by rules and regulations
promulgated by the secretary of corrections . . . concerning such civil action." In this
case, both the district court and the Court of Appeals determined that the gravamen of
Sperry's claim fell under article 16 of the KDOC's regulations, but the Court of Appeals
recognized Sperry also had a potential article 15 claim. Sperry, 2015 WL 3632752, at *6.
Which procedures govern Sperry's claim will impact how he needed to show exhaustion.
To explain, we look to the details of the two articles in the KDOC's regulations.

3. KDOC Regulations Regarding Article 15 and Article 16 Claims

The article 15 grievance procedure applies to complaints by inmates "regarding
policies and conditions within the jurisdiction of the facility or the department of
corrections," "actions by employees and inmates, and incidents occurring within the
facility," and some other circumstances. K.A.R. 44-15-101a(d)(1). An article 15
grievance must be filed within 15 days of discovery of the event giving rise to the
grievance, but "[n]o grievance, regardless of time of discovery, shall be filed later than
one year after the event." K.A.R. 44-15-101b.

The other procedure—the article 16 claim procedure—applies if an inmate claims
a "loss of or damage to the inmate's own property" or if the inmate makes a claim for
personal injury. K.A.R. 44-16-102(a) (property damage); K.A.R. 44-16-104a (personal

19
injury). A personal injury claim must be presented to prison officials "within 10 calendar
days of the claimed personal injury." K.A.R. 44-16-104a(a).

Grievances about prison conditions may, in some circumstances, overlap with
claims of personal injury. In such a case, the regulations explain that simply filing an
article 15 grievance will not suffice. K.A.R. 44-15-101a(d)(2) provides that the article 15
grievance procedure "shall not be used in any way as a substitute for, or as part of, . . . the
property loss or personal injury claims procedure" under article 16. And K.A.R. 44-16-
104a(c) states that the article 16 requirement for filing a personal injury claim within 10
days "shall apply whether or not the inmate pursues a grievance pursuant to article 15 and
whether or not the inmate files a claim with the legislative joint committee on special
claims against the state."

Both the district court and the Court of Appeals concluded these regulations
required Sperry to file an article 16 form in order to seek relief for personal injury. The
Court of Appeals also distinguished between Sperry's article 15 and article 16 claims. It
acknowledged that "[a]n argument could be made that Sperry did properly exhaust his
administrative remedies by filing" an article 15 claim relating to conditions in the prison.
Sperry v. McKune, No. 112,455, 2015 WL 3632752, at *6 (Kan. App. 2015)
(unpublished opinion). Indeed, in Sperry's "Complaint," he complained about prison
conditions and sought an injunction requiring the removal of contaminants from the
prison. But the Court of Appeals cited the requirement that article 15 claims be filed
within 15 days from the date of the discovery of the event giving rise to the grievance and
concluded the claim must be dismissed because "he did not attach documentation of his
initial grievance." 2015 WL 3632752, at *6. By implication, the Court of Appeals
concluded the November 2010 grievance—the only grievance filed with the court when
Sperry originally filed this lawsuit—was untimely.

20
 Sperry's failure to prove he had filed a timely grievance defeated his state law
claims, according to the Court of Appeals. But, because the proof-on-filing requirement
did not apply to his federal claim, the Court of Appeals examined his federal cause of
action separately. And with regard to that, it held the KDOC defendants waived the
exhaustion requirement when the Warden did not deny Sperry's March 2010 claim on the
grounds it was an article 15, not article 16, form. Sperry, 2015 WL 3632752, at *6-8.

In his cross-petition for review, Sperry argues the Court of Appeals conclusion
regarding his failure to prove exhaustion is inconsistent with its conclusion that equitable
principles—specifically waiver—excuses his failure to exhaust administrative remedies.
He argues the equitable considerations should be considered as a basis for explaining
why an inmate cannot file the necessary proof of exhaustion. Logically, it would seem
that if an inmate could not exhaust administrative remedies because of circumstances
giving rise to equitable considerations, the inmate would not be able to meet the proof
requirement of K.S.A. 75-52,138. Yet, the Court of Appeals did not explain the
difference in its treatment of K.S.A. 75-52,138's two requirements.

Sperry's argument depends on whether equitable considerations can be considered
at all when K.S.A. 75-52,138 applies (and perhaps on other legal questions). We turn
next to the legal basis for the district court's and Court of Appeals' consideration of
equity.

4. Equitable Considerations

As we have discussed, both the district court and the Court of Appeals, citing
Chelf v. State, 46 Kan. App. 2d 522, 263 P.3d 852 (2011), accepted the legal possibility

21
that principles of equity could excuse an inmate's failure to exhaust administrative
remedies. The Chelf court held "the exhaustion requirement set forth in K.S.A. 75-52,138
is a mandatory, but nonjurisdictional, prerequisite to filing suit that must be strictly
enforced by the court. Because it is not jurisdictional, failure to exhaust administrative
remedies as required by this particular statute may be subject to certain equitable
defenses." Chelf, 46 Kan. App. 2d at 533.

Before us, neither party takes issue with the holding in Chelf, even though this
court has never expressly adopted Chelf. Perhaps this is because the Chelf court explained
its analysis in detail, applying guidance from the United States Supreme Court regarding
how to distinguish statutes that impose conditions upon a court's jurisdiction and those
that merely impose procedural conditions that do not affect jurisdiction. This same
reasoning has been adopted by other Court of Appeals panels, leading to the conclusion
that the requirements of K.S.A. 75-52,138 are nonjurisdictional. E.g., Pittman v. Bliss,
No. 113,577, 2015 WL 9302708, at *4 (Kan. App. 2015) (unpublished opinion) (citing
Chelf); Sperry, 2015 WL 3632752, at *7 (same); Burdine v. State, No. 108,152, 2013 WL
1943075, at *3 (Kan. App. 2013) (unpublished opinion) (same); Redford v. State, No.
106,787, 2013 WL 781102, at *6 (Kan. App. 2013) (unpublished opinion) (same).

Nevertheless, a recent decision of the United States Supreme Court interpreting
the PLRA suggests courts should not create judicial exceptions to the exhaustion
requirement of statutes such as K.S.A. 75-52,138. See Ross v. Blake, 578 U.S. ___, 136
S. Ct. 1850, 1856-57, 195 L. Ed. 2d 117 (2016) (holding the PLRA imposes a mandatory
exhaustion requirement "[a]nd that mandatory language means a court may not excuse a
failure to exhaust . . . . No doubt, judge-made exhaustion doctrines, even if flatly stated at
first, remain amenable to judge-made exceptions. . . . But a statutory exhaustion provision
stands on a different footing. There, Congress sets the rules—and courts have a role in

22
creating exceptions only if Congress wants them to. For that reason, mandatory
exhaustion statutes like the PLRA establish mandatory exhaustion regimes, foreclosing
judicial discretion.").

Even before Ross, federal courts expressed reluctance to apply exceptions to the
PLRA's exhaustion requirement, which is comparable—although not identical—to
K.S.A. 75-52,138. See Hinton v. Corrections Corp. of America, 623 F. Supp. 2d 61, 63
n.1 (D.D.C. 2009) (collecting cases and concluding "[t]he law is unsettled . . . on the
question of the extent to which waiver, equitable estoppel or tolling can apply to defeat
the affirmative defense of non-exhaustion under the PLRA"); Hoover v. West, 93 Fed.
Appx. 177, 182 (10th Cir. 2004) (unpublished opinion) ("[T]he Seventh and Tenth
Circuits have so far declined to decide whether equitable estoppel applies" to the PLRA
exhaustion requirement.).

In light of the United States Supreme Court's recent decision in Ross and the Chelf
court's reliance on United States Supreme Court decisions in its analysis, we decline to
decide today whether we will adopt Chelf's holdings. We defer this determination for two
reasons. First, that issue has not been presented to us in either petition for review and the
parties have not cited to nor discussed Ross or its implications on Sperry's federal claim
or on the Chelf analysis. See Supreme Court Rule 8.03(a)(4)(C) (2015 Kan. Ct. R. Annot.
79) ("The court will not consider issues not presented or fairly included in the petition
[for review]."). And, second, we need not resolve the questions because procedural issues
require us to remand this case. On remand, the parties will be able to fully argue whether
Ross impacts these proceedings if their arguments necessitate such a discussion.

23
 Now that we have explained the legal background, we return to the manner in
which the exhaustion issue was presented to and considered by the district court and the
Court of Appeals.

5. Application of the Appropriate Standard

As our discussion of the law indicates, Sperry had to exhaust his remedies to seek
judicial relief for either his federal or his state law causes of action and had to file proof
of exhaustion to advance his state law claims. Facts critical to an exhaustion
determination under Chelf include: (1) When did the incident giving rise to a grievance
or claim occur? (2) Was a grievance or claim filed? (3) When was the grievance or claim
filed? (4) Was the correct process or grievance filed and appealed to all administrative
levels? and (5) Were there any equitable considerations? See 46 Kan. App. 2d at 534-35.

In Sperry's petition, he not only made allegations of fact, he arguably provided
proof of any allegations he had made because he verified his petition—meaning he swore
an oath that the contents of the petition were "true and correct." This court has long held
that a "petition verified, positively, and not on information and belief, is, in effect, an
affidavit." Atchison v. Bartholow, 4 Kan. 124, 128, 1866 WL 457 (1866). And we have
allowed the use of a verified petition as evidence as long as it was not "verified on
information and belief." State, ex rel., v. Molitor, 175 Kan. 317, 325, 263 P.2d 207
(1953).

The verified facts in the petition address: (1) when the claim arose (Sperry stated
he learned of his exposure to contaminants in January 2010 and was denied medical
treatment in March 2010); (2) whether a grievance was filed (Sperry filed several
grievances); (3) when a grievance or claim was filed (Sperry filed an internal grievance

24
and a claim with the Joint Committee on Special Claims Against the State in March
2010); (4) what procedure was used and appealed through the various administrative
steps (the March grievance was not exhausted but a November one, filed on an article 15
form, was exhausted); and (5) a potential equitable consideration arose (because the
KDOC defendants "refused to process the grievance"). The KDOC defendants' did not
particularly focus on these facts, either by arguing (1) the statements established the
claim was untimely or (2) the statements were too vague or legally insufficient to meet
the requirements of K.S.A. 75-52,138 or to raise an issue under Chelf.

Instead, the KDOC defendants' exhaustion arguments focused on the regulations
requiring Sperry to bring an article 16 claim before filing suit. To establish that he had
not done so, they filed the affidavit of the LCF Grievance/Property Claims Officer. The
district court and Court of Appeals found that Sperry had not filed an article 16 claim,
and both courts noted that Sperry had not disputed that fact. Although the affidavit was
only attached to the supplement to the first motion to dismiss, the district court made the
same finding in its second motion. Hence, under K.S.A. 2015 Supp. 60-212(d), the
KDOC defendants' motions should have been treated as motions for summary judgment.

Ironically, it is the Warden and Secretary who argue the Court of Appeals erred
when it considered facts outside the pleadings in determining the KDOC defendants
waived the exhaustion requirement. Because they submitted the affidavit that converted
the process from one under K.S.A. 2015 Supp. 60-212 to one under K.S.A. 2015 Supp.
60-256, we reject the KDOC defendants' contention that this case should be resolved as a
motion to dismiss. A party cannot invite a court to consider material outside a pleading
and then complain of error when the court does so. See Water Dist. No. 1 of Johnson Co.
v. Prairie Center Dev., 304 Kan. 603, 618, 375 P.3d 304 (2016).

25
 We note further that the KDOC defendants' appellate brief before the Court of
Appeals did not directly respond to Sperry's argument that equitable considerations
excused his failure to exhaust administrative remedies. See Sperry, 2015 WL 3632752, at
*7 ("Sperry argues that KDOC's violation of its own rules constitutes waiver of the
exhaustion of administrative remedies requirement. Defendants do not address this
argument on appeal."). As a result, the KDOC defendants abandoned this issue. State v.
Seacat, 303 Kan. 622, 628, 366 P.3d 208 (2016) ("[T]he failure to brief and argue an
issue constitutes abandonment of the issue.").

Nevertheless, the KDOC defendants may still be correct in arguing that the district
court and Court of Appeals erred by considering matters they should not have in ruling
on the KDOC defendants' motion. But rather than being based on an inappropriate
application of the motion to dismiss standard, as they argue, the error arises from an
improper application of the rules regarding summary judgment and the summary
judgment standard. Both courts considered facts argued by the litigants even though the
factual statements did not cite to "the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits" and without a determination "that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law." Born v. Born, 304 Kan. 542, 554, 374 P.3d 624 (2016); see
K.S.A. 2015 Supp. 60-256; Supreme Court Rule 141. And while we will liberally
construe the pleadings of pro se litigants like Sperry, pro se litigants must still follow
procedural rules. Bruner v. State, 277 Kan. 603, 605, 88 P.3d 214 (2004).

The failure of the litigants to comply with Rule 141 and of the district court or
Court of Appeals to enforce its provisions creates a situation where the record before us
lacks the clarity necessary for ruling on a motion for summary judgment. This court

26
considered the ramifications of such a situation in Rhoten v. Dickson, 290 Kan. 92, 223
P.3d 786 (2010).

In that case, this court held that a district court erred when it did not require
litigants to comply with Rule 141 after materials outside the pleadings were argued in
relation to a motion to dismiss. The court explained that not requiring compliance "risks
confusion among the litigants and the court and runs a substantial prejudicial risk to the
fair presentation of the facts and law." 290 Kan. at 103. But the court also noted the error
could be harmless and cited cases supporting harmlessness when, for example, (1) the
district court had excluded from its consideration any matters outside those in the
petition; (2) the additional material did not otherwise infect the district court's
consideration; or (3) the subsequent filings "allowed for the proper presentation of the
minimal number of uncontroverted facts required to establish defendants' entitlement" to
relief. 290 Kan. at 104-05. The Rhoten court contrasted these situations with one that
arose in McCullough v. Bethany Med. Center, 235 Kan. 732, 683 P.2d 1258 (1984).

In McCullough, this court found reversible error when a district court failed to
enforce Supreme Court Rule 141. Noting Rule 141 "is not just fluff," the court
determined there was "no way to determine then or now what facts are or are not
controverted or on what evidence the parties rely." 235 Kan. at 736.

This case presents a situation like that in McCullough. An examination of the
conflicting rulings of the district court and the Court of Appeals on the issue of waiver
illustrates why.

The district court made the factual finding that the KDOC defendants did not
waive reliance on the exhaustion doctrine because they "didn't relinquish a known right

27
by allegedly failing to provide forms" to Sperry. Ordinarily, the issue of waiver presents a
question of fact that can only be decided on summary judgment when the material facts
are uncontroverted. See Foundation Property Investments v. CTP, 286 Kan. 597, 610,
186 P.3d 766 (2008). In this case, we are unable to tell what facts the district court relied
on in finding that KDOC did not relinquish a known right and we are similarly unable to
tell whether those facts were disputed.

Our inability to determine the facts on which the district court's ruling was based
creates problems because the Court of Appeals reached the opposite conclusion, holding
instead:

"[T]he trial court's decision to dismiss Sperry's 42 U.S.C. § 1983 claim for failure to
exhaust administrative remedies was improper because KDOC waived its right to assert
exhaustion of administrative remedies as an affirmative defense when it addressed the
merits of Sperry's initial grievance that was later deemed to be improper." Sperry, 2015
WL 3632752, at *8.

The Court of Appeals reached this conclusion by relying on a March 26, 2010,
document in which the LCF Warden denied Sperry's claim—a document Sperry attached
only with his response to the KDOC defendants' third motion to dismiss. It appears the
Court of Appeals raised the effect of the March 2010 denial of Sperry's grievance on its
own, without benefit of argument from the parties. Yet, this document was not attached
to Sperry's "Complaint" or "Amended Complaint" and was not before the district court
when it made its initial ruling on waiver. And because Sperry's allegations regarding this
letter did not conform to Rule 141, it is not clear that the KDOC had an opportunity to
controvert any facts regarding the effect of the letter. Moreover, because the grievance
process was not final until the Warden's letter had been reviewed by the Secretary, a

28
question of law arises as to whether the Warden's letter was sufficient to waive the
exhaustion doctrine on behalf of all—or any—of the KDOC defendants.

We could provide several other examples of essential facts we cannot determine,
but this one area of controverted facts establishes the point. Given our inability to know
whether the facts cited by the district court or the Court of Appeals are supported and, if
supported, are uncontroverted and thus ripe for summary judgment, we conclude the
district court and the Court of Appeals erred in failing to require compliance with Rule
141. Consequently, we remand for consideration of the various filings under the
appropriate standards. Given this resolution, we need not discuss Sperry's other
arguments.

We, therefore, reverse the Court of Appeals holding that the KDOC defendants
waived their right to rely on Sperry's alleged failure to exhaust administrative remedies.
Likewise, we reverse the district court's decision granting the KDOC defendants' motion
to dismiss because it was based, at least in part, on facts not properly before the court.

CONCLUSION

Both the district court and Court of Appeals erred in not enforcing the
requirements of Supreme Court Rule 141, and that error cannot be considered harmless
because there is "no way to determine then or now what facts are or are not controverted
or on what evidence the parties rely." McCullough, 235 Kan. at 736. We, therefore,
reverse the district court's decision that Sperry's claims must be dismissed for failure to
exhaust administrative remedies. We also reverse the Court of Appeals. We remand to
the district court for reconsideration of the parties' arguments and, if appropriate,
enforcement of Supreme Court Rule 141.

29
 Judgment of the Court of Appeals affirming in part, reversing in part, and
remanding is reversed on the issues subject to review. Judgment of the district court is
reversed on the issues subject to review and remanded with directions.

30