RENDERED: MARCH 18, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0037-MR
JAMES E. STOVER APPELLANT
APPEAL FROM BOYLE CIRCUIT COURT
v. HONORABLE DARREN W. PECKLER, JUDGE
ACTION NO. 20-CI-00308
BRAD ADAMS, WARDEN,
NORTHPOINT TRAINING CENTER APPELLEE
OPINION
AFFIRMING
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BEFORE: JONES, MAZE, AND TAYLOR, JUDGES.
MAZE, JUDGE: James E. Stover (Stover) appeals from an order of the Boyle
Circuit Court dismissing his petition for declaration of rights based on the failure to
exhaust his administrative remedies. On appeal, Stover argues that the
Disciplinary Report Form attached to his petition for declaration of rights was
sufficient evidence that he had exhausted his administrative remedies. The Court
having found no reversible error in the Boyd Circuit Court’s order dismissing, we
affirm.
On February 28, 2020, Northpoint corrections officer Suzanne
Whipkey (Whipkey) issued a write-up to Stover, stating that while speaking to
another inmate in the Dorm 3 stairwell, she turned around to find Stover behind
her. She indicated that she felt “uncomfortable” like he had “thrusted” into her.
This report was prepared and transmitted by the Captain’s clerk, Erin Thurman.
Thereafter, Supervisor William Elam assigned an investigating officer, Sergeant
Nicola Riley, who advised Stover of his due process rights and read the
disciplinary report to him. Stover indicated that he was not guilty, and he was then
given copies of the applicable documents.
Sergeant Riley then reviewed the video footage of the incident in the
stairwell. He reported that it clearly showed that Stover “does a hip thrust into the
backside of Officer Whipkey.” Thereafter, Stover was charged with physical
action against an employee or non-inmate. The matter was referred to an
adjustment committee.
On March 12, 2020, a hearing was held at which Stover was
represented by inmate legal aide, Jeremy Brooks. After hearing proof,
Chairman/Adjustment Officer Tyler A. Vaught entered findings based upon his
own review of the video footage and found Stover guilty, sanctioning him with the
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loss of 730 days of good time credit. The matter was appealed to the Warden,
who, without findings, reduced the penalty to a loss of 365 days of good time
credit.
Thereafter, Stover filed his petition for declaration of rights in the
Boyle Circuit Court, arguing that the disciplinary action had been improper due to
various violations of Kentucky Department of Corrections Policy and Procedure
(CPP). In support of his petition for declaratory relief, Stover attached the entire
Disciplinary Report Form, Parts I and II. Appellees moved to dismiss the action
based on Stover’s failure to exhaust his administrative remedies and to verify that
he had done so. That motion was granted and Stover’s subsequent motion to
reconsider was denied. Stover’s primary argument on appeal is that the
Disciplinary Report Form is sufficient to demonstrate that he has exhausted his
administrative remedies as required.
A motion to dismiss for failure to state a claim upon which relief may
be granted is only appropriate where “it appears the pleading party would not be
entitled to relief under any set of facts which could be proved.” Pari-Mutuel
Clerks’ Union of Kentucky, Local 541, SEIU, AFL-CIO v. Kentucky Jockey Club,
551 S.W.2d, 801, 803 (Ky. 1977). As such, this Court’s review is de novo. Fox v.
Grayson, 317 S.W.3d 1, 7 (Ky. 2010).
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Kentucky Revised Statute (KRS) 454.415(1)(a) provides that no
action shall be brought by an inmate, challenging a prison disciplinary proceeding
until the inmate has exhausted his administrative remedies. KRS 454.415(3) states
that an inmate is required to “attach to any complaint filed documents verifying
that administrative remedies have been exhausted.”
In Houston v. Fletcher, 193 S.W.3d 276 (Ky. App. 2006), as here, an
inmate was found guilty of institutional offenses and penalized by the loss of good
time credit. His appeals to the warden were denied and he filed a petition for
declaration of rights. However, he “failed to attach any documents to his petition
verifying the arguments that had been raised in his administrative appeal to the
Warden – except for a copy of his written appeal challenging the sufficiency of the
evidence as to the charge of possession of dangerous contraband.” Id. at 277. In
this case, although the materials provided by Stover do demonstrate his
participation in the disciplinary process as provided in CPP 15.6, he, like Houston,
has failed to document the arguments made to the Warden on appeal. Therefore,
this Court can make no determination whether the issues raised in his petition for a
declaration of rights were the same as those made on appeal. O’Dea v. Clark, 883
S.W.2d 888 (Ky. App. 1994).
Accordingly, we affirm the order dismissing entered by the Boyle
Circuit Court.
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ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Michael L. Goodwin Angela T. Dunham
Louisville, Kentucky Frankfort, Kentucky
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