NOT DESIGNATED FOR PUBLICATION
No. 122,877
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
EDRICK MCCARTY,
Appellant,
v.
WARDEN SAM CLINE, et al.,
Appellees.
MEMORANDUM OPINION
Appeal from Butler District Court; JOHN E. SANDERS, judge. Opinion filed November 25, 2020.
Affirmed.
Edrick McCarty, appellant pro se.
Joni Cole, legal counsel, El Dorado Correctional Facility, for appellees.
Before HILL, P.J., BRUNS and SCHROEDER, JJ.
PER CURIAM: Edrick McCarty appeals the summary denial of his K.S.A. 2019
Supp. 60-1501 petition. To succeed with a K.S.A. 60-1501 petition, one must show
"shocking and intolerable conduct or continuing mistreatment of a constitutional stature."
Johnson v. State, 289 Kan. 642, 648, 215 P.3d 575 (2009). For the reasons stated below,
McCarty fails to meet that burden. We affirm.
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FACTS
McCarty was convicted of attempted aggravated robbery and felony first-degree
murder as a result of acts he committed in 1998. See State v. McCarty, 271 Kan. 510, 23
P.3d 829 (2001). In March 2020, he filed the K.S.A. 60-1501 petition which gives rise to
this appeal. In his petition, McCarty raised five claims. First, McCarty claimed he was
mistreated and/or neglected while in a Wichita juvenile detention facility in 1998 and
1999. McCarty argued his convictions should be reversed as a result. Second, McCarty
argued his constitutional rights against self-incrimination were violated when he pled
guilty to battery in a 2016 case. However, the appellate record does not reflect McCarty
was convicted of any offenses in 2016. Third, McCarty alleged he was improperly treated
with psychiatric medication beginning in 2005. McCarty demanded $800,000 for the
alleged medical abuse/neglect. Fourth, McCarty alleged he was denied medical treatment
to remove a bullet from his shoulder—an injury that occurred when McCarty was shot by
the victim of his 1998 crimes. McCarty demanded $75,000 for the alleged medical
neglect. Finally, McCarty disputed a disciplinary conviction he received in August 2019
while in the custody of the Kansas Department of Corrections (KDOC).
The district court summarily dismissed McCarty's petition, finding the statute of
limitations had long expired for McCarty's first claim and there was no legal basis to
reverse his convictions as a result of personal injury claims unrelated to the underlying
crimes. The district court found it had no authority to grant relief on McCarty's second
claim as the record did not support McCarty's contention he was convicted of battery in
2016. The district court dismissed McCarty's third claim because there was no evidence
McCarty exhausted his administrative remedies and McCarty could not assert a claim for
monetary damages through a K.S.A. 60-1501 petition. Similarly, the district court
dismissed McCarty's fourth claim because McCarty could not seek monetary damages
through his petition. And the district court noted McCarty's treatment had not been
completely denied since his medical provider's correspondence reflected surgery to
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remove the bullet from McCarty's shoulder was still being considered. In other words, the
district court found McCarty's fourth claim was not ripe for consideration. Finally, the
district court found McCarty's fifth claim was untimely as McCarty had received a final
decision from the Secretary of Corrections on October 9, 2019, and did not file his
petition until March 16, 2020. The district court further noted McCarty had previously
challenged his disciplinary conviction in another case, which the district court dismissed
due to McCarty's failure to comply with the district court's orders.
ANALYSIS
Standard of Review
To state a claim for relief under K.S.A. 60-1501 and avoid summary dismissal, a
petition must allege
"shocking and intolerable conduct or continuing mistreatment of a constitutional stature.
Summary dismissal is appropriate if, on the face of the petition, it can be established that
petitioner is not entitled to relief, or if, from undisputed facts, or from uncontrovertible
facts, such as those recited in a court record, it appears, as a matter of law, no cause for
granting a writ exists. An appellate court reviews a summary dismissal de novo.
[Citations omitted.]" Johnson, 289 Kan. at 648-49.
See K.S.A. 2019 Supp. 60-1503(a).
Discussion
McCarty has not alleged a violation of his constitutional due process rights, a lack
of jurisdiction, or any otherwise proper basis for relief in relation to the underlying
criminal proceedings. As outlined by the district court, all of McCarty's claims fail.
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McCarty's first claim, even if liberally construed as a general claim for personal
injury, is extremely untimely and fails for multiple reasons. The statute of limitations has
long passed. See K.S.A. 2019 Supp. 60-513(a)(4). He has failed to sue the correct party.
He has sued Warden Cline and KDOC when they had no control over him in 1998 or
1999 while in the custody of the Wichita juvenile detention facility. McCarty's claims
from 1998 or 1999 are not grounds for reversing his convictions through a 60-1501
petition.
McCarty's second claim—that his Miranda rights were violated in 2016—fails
because he is just now raising this issue, and a timely 60-1501 petition must be filed
within 30 days. K.S.A. 2019 Supp. 60-1501(b); see Miranda v. Arizona, 384 U.S. 436, 86
S. Ct. 1602, 16 L. Ed. 2d 694 (1966). And we can find nothing in the record reflecting
McCarty was convicted of any offense in 2016 requiring he be given Miranda rights.
McCarty's brief fails to provide any record citation showing such a conviction exists. See
Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 644, 294 P.3d 287 (2013)
("'[B]urden is on a party to designate a record sufficient to present its points to the
appellate court and to establish its claims.'").
McCarty's third and fourth claims fail because it is a well-established rule an
inmate may not seek monetary damages through a K.S.A. 60-1501 petition. See Foster v.
Maynard, 222 Kan. 506, 513, 565 P.2d 285 (1977); Bryant v. Barbara, 11 Kan. App. 2d
165, 167, 717 P.2d 522 (1986). McCarty's third claim is also untimely as it relates to
alleged medical neglect in 2005. See K.S.A. 2019 Supp. 60-1501(b); K.S.A. 2019 Supp.
60-1507(f). Further, the district court found McCarty failed to exhaust his administrative
remedies on his third claim. In his brief, McCarty offers no argument or explanation to
refute the district court's finding. Failure to exhaust administrative remedies is fatal to
McCarty's third claim. See Jahnke v. Blue Cross & Blue Shield of Kansas, 51 Kan. App.
2d 678, 687, 353 P.3d 455 (2015). McCarty's fourth claim is further flawed because the
district court found his request for medical treatment had not been completely denied.
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Accordingly, this issue is not ripe for consideration on the merits, notwithstanding the
fact McCarty seeks relief in this K.S.A 60-1501 petition not available to him.
McCarty's fifth claim fails as untimely. The disciplinary conviction from KDOC
became a final decision from the Secretary of Corrections on October 9, 2019. However,
McCarty did not file this petition until March 16, 2020, well beyond the 30-day limitation
to file an appeal after the exhaustion of administrative remedies. See K.S.A. 2019 Supp.
60-1501(b).
Finally, McCarty's claims would also be untimely even if we liberally construed
them under K.S.A. 2019 Supp. 60-1507, as his convictions became final in 2001 and he
did not file this petition until March 2020. See K.S.A. 2019 Supp. 60-1507(f)(1);
McCarty, 271 Kan. 510. And the district court did not have jurisdiction to grant relief for
any of his claims, even if it had liberally construed his petition as a K.S.A. 60-1507
motion because a K.S.A. 60-1507 motion must be filed in the sentencing court. See
K.S.A. 2019 Supp. 60-1507(a). McCarty was sentenced in Sedgwick County; he filed his
K.S.A. 60-1501 petition in the district court for the county in which he is presently
incarcerated—Butler County.
McCarty's petition fails to show the existence of shocking and intolerable conduct
or continuing mistreatment of a constitutional stature. He has failed to state any claim for
which any relief is available for him under K.S.A. 60-1501, and the record conclusively
shows he is not entitled to relief as a matter of law. See Johnson, 289 Kan. at 648-49. The
district court did not err when it summarily dismissed McCarty's petition.
Affirmed.
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