                                            No. 119,813

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                       TIMOTHY J. BURCH,
                                           Appellant,

                                                  v.

   TIMOTHY KECK, SECRETARY OF KANSAS DEPARTMENT FOR AGING AND DISABILITY
                               SERVICES, et al.,
                                 Appellees.


                                 SYLLABUS BY THE COURT

        A resident of the Kansas Sexual Predator Treatment Program is not required to
exhaust administrative remedies before bringing an action under 42 U.S.C. § 1983
(2012).


        Appeal from Pawnee District Court; BRUCE T. GATTERMAN, judge. Opinion filed May 24, 2019.
Reversed and remanded.


        Donald E. Anderson II, of Law Office of Donald E. Anderson II, LLC, of Great Bend, for
appellant.


        Kelly G. Cunningham, senior litigation counsel, Kansas Department for Aging and Disability
Services, for appellees.


Before ARNOLD-BURGER, C.J., PIERRON and MALONE, JJ.


        ARNOLD-BURGER, C.J.: Generally, a person need not exhaust administrative
remedies before bringing an action under 42 U.S.C. § 1983 (2012). Timothy J. Burch, a
resident of the Kansas Sexual Predator Treatment Program (SPTP), brought a § 1983
action alleging that SPTP officials violated his constitutional rights by unlawfully seizing

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his property without affording him due process. The district court dismissed the case
because Burch failed to prove that he exhausted his administrative remedies. Because
exhaustion of administrative remedies is not required for residents of the Kansas SPTP
bringing § 1983 claims, the district court's judgment is reversed and remanded.


                          FACTUAL AND PROCEDURAL HISTORY


       Burch is a resident of the SPTP at Larned State Hospital. The Kansas Department
for Aging and Disability Services (KDADS) administers the SPTP. In June 2017, Burch
filed a civil rights complaint under § 1983 alleging that SPTP officials violated his
constitutional rights by unlawfully seizing his property without affording him due
process. Burch named KDADS Secretary Timothy Keck, Assistant Clinical Director Keri
Applequist, and Program Manager Haleigh Bennett as defendants. KDADS moved to
dismiss, arguing that the district court lacked jurisdiction to consider Burch's claims
because he failed to exhaust his administrative remedies as required by K.S.A. 2018
Supp. 59-29a24 (persons committed to the SPTP required to exhaust administrative
remedies prior to bringing any civil action). The district court agreed and dismissed
Burch's case for failing to prove that he exhausted his administrative remedies. Burch
appealed.


       After briefs were filed in the case, this court issued an order for supplemental
briefing ordering the parties to address the holdings in Felder v. Casey, 487 U.S. 131, 108
S. Ct. 2302, 101 L. Ed. 2d 123 (1988), Patsy v. Florida Board of Regents, 457 U.S. 496,
102 S. Ct. 2557, 73 L. Ed. 2d 172 (1982), and Prager v. Kansas Dept. of Revenue, 271
Kan. 1, 20 P.3d 39 (2001), as they relate to whether §1983 preempts K.S.A. 2018 Supp.
59-29a24. The parties have submitted their supplemental briefs and we are ready to rule.




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                                           ANALYSIS


         Burch argues that the district court erred in dismissing his case for failure to
exhaust administrative remedies. He makes two arguments: (1) He did try to exhaust his
administrative remedies, and (2) he did not have to exhaust administrative remedies
because doing so would be a futile act. In supplemental briefing, he adds a third
argument, that a state statute cannot preempt litigation of his claim under § 1983.
Because his final claim is dispositive, we begin and end with it.


         "An allegation that a party is required to or has failed to exhaust administrative
remedies presents a question of law, and the appellate court's standard of review is
unlimited." In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, 622-23, 24 P.3d
128 (2001).


         Burch filed his claim under 42 U.S.C. § 1983. This statute "'is not itself a source of
substantive rights, but rather a method for vindicating federal rights elsewhere
conferred.'" Prager, 271 Kan. at 11 (quoting Swinehart v. City of Ottawa, 24 Kan. App.
2d 272, 275, 943 P.2d 942 [1997]). "A § 1983 claim has two essential elements:
(1) whether the conduct complained of was committed by a person acting under color of
state law, and (2) whether this conduct deprived a person of rights, privileges, or
immunities secured by the Constitution or laws of the United States." Prager, 271 Kan. at
11-12.


         Section 1983 itself contains no requirement that persons exhaust available
administrative remedies before bringing an action under the statute. Yet some states do
have statutes requiring persons to exhaust administrative remedies before bringing civil
actions. Relevant to this case is K.S.A. 2018 Supp. 59-29a24:




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                "Any person civilly committed pursuant to the Kansas sexually violent predator
       act, prior to filing any civil action, including, but not limited to, an action pursuant
       to K.S.A. 60-1501 et seq., and amendments thereto, naming as the defendant the state of
       Kansas, any political subdivision of the state of Kansas, any public official, the secretary
       for aging and disability services or an employee of the Kansas department for aging and
       disability services, while such employee is engaged in the performance of such
       employee's duty, shall be required to have exhausted all administrative remedies
       concerning such civil action. Upon filing a petition in a civil action, such person shall file
       with such petition proof that all administrative remedies have been exhausted."


The issue here is determining whether § 1983 preempts state laws imposing exhaustion
requirements.


       The United States Supreme Court addressed state exhaustion of administrative
remedies requirements in the context of § 1983 claims in Patsy, 457 U.S. 496. There,
Georgia Patsy filed a § 1983 action alleging that her employer, Florida International
University, denied her employment opportunities solely because of her race and sex. The
district court dismissed Patsy's action because she failed to exhaust available
administrative remedies. The United States Supreme Court granted certiorari to address
"[t]he question of whether exhaustion of administrative remedies should ever be required
in a § 1983 action . . . ." 457 U.S. at 500. The Court noted that the issue was not an issue
of first impression, because "on numerous occasions" it has "rejected the argument that a
§ 1983 action should be dismissed where the plaintiff has not exhausted state
administrative remedies." 457 U.S. at 500. Therefore, the Court had to determine whether
its prior decisions misconstrued the meaning of § 1983.


       After examining the legislative history to § 1 of the Civil Rights Act of 1871, the
precursor to § 1983, the Court stated: "Although we recognize that the 1871 Congress
did not expressly contemplate the exhaustion question, we believe that the tenor of the
debates over § 1 supports our conclusion that exhaustion of administrative remedies in

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§ 1983 actions should not be judicially imposed." 457 U.S. at 502. The Court also looked
at more recent legislative history to determine congressional intent. 457 U.S. at 507. In
1980, Congress enacted the Civil Rights of Institutionalized Persons Act (CRIPA). 42
U.S.C. § 1997 et seq. (1980). In § 1997e of this Act, Congress "created a specific, limited
exhaustion requirement for adult prisoners bringing actions pursuant to § 1983." 457 U.S.
at 508. The Supreme Court found that "Section 1997e and its legislative history
demonstrate that Congress understood that exhaustion is not generally required in § 1983
actions, and that it decided to carve out only a narrow exception to this rule." 457 U.S. at
508. The Court found that "[a] judicially imposed exhaustion requirement would be
inconsistent with Congress' decision to adopt § 1997e and would usurp policy judgments
that Congress has reserved for itself." 457 U.S. at 508.


       The Patsy Court dealt with a § 1983 claim brought in federal court. But in Felder,
487 U.S. 131, the Supreme Court applied the rule of Patsy to § 1983 actions brought in
state court. There, Bobby Felder filed a § 1983 action in Wisconsin state court alleging
police misconduct. The case made its way to the Wisconsin Supreme Court, which held
that the action should be dismissed because Felder failed to comply with a state notice-of-
claim statute. 487 U.S. at 137-38. This statute provided that a person could not sue a state
governmental subdivision, agency, or officer unless the person provided notice of the
claim within 120 days of the alleged injury, or proved that the relevant subdivision,
agency, or officer had actual notice of the claim and was not prejudiced by the lack of
written notice. The party bringing suit must also show that the party submitted "an
itemized statement of the relief sought to the governmental subdivision or agency, which
then has 120 days to grant or disallow the requested relief." 487 U.S. at 136-37. Finally,
claimants had to sue within six months of receiving notice that the agency disallowed the
claim. In holding that Felder had to adhere to the state statute's requirements before
bringing an action under § 1983, the Wisconsin Supreme Court reasoned:




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       "[W]hile Congress may establish the procedural framework under which claims are heard
       in federal courts, States retain the authority under the Constitution to prescribe the rules
       and procedures that govern actions in their own tribunals. Accordingly, a party who
       chooses to vindicate a congressionally created right in state court must abide by the
       State's procedures." 487 U.S. at 137.


       The United States Supreme Court reversed. 487 U.S. at 138. The Court began by
saying that "[n]o one disputes the general and unassailable proposition relied upon by the
Wisconsin Supreme Court below that States may establish the rules of procedure
governing litigation in their own courts." 487 U.S. at 138. But the Court added that
"where state courts entertain a federally created cause of action, the 'federal right cannot
be defeated by the forms of local practice.' [Citation omitted.]" 487 U.S. at 138. The
Court framed the issue as one of preemption, asking whether "application of the State's
notice-of-claim provision to § 1983 actions brought in state courts [is] consistent with the
goals of the federal civil rights laws, or does the enforcement of such a requirement
instead '"stan[d] as an obstacle to the accomplishment and execution of the full purposes
and objectives of Congress"'? [Citations omitted.]" 487 U.S. at 138.


       The Court found that "application of the notice requirement burdens the exercise
of the federal right by forcing civil rights victims who seek redress in state courts to
comply with a requirement that is entirely absent from civil rights litigation in federal
courts." 487 U.S. at 141. The Court also found that allowing state courts to enforce
notice-of-claim statutes in § 1983 actions "will frequently and predictably produce
different outcomes in federal civil rights litigation based solely on whether the litigation
takes place in state or federal court." 487 U.S. at 141. The Court could not allow states to
"apply such an outcome-determinative law when entertaining substantive federal rights in
their courts." 487 U.S. at 141.


       In Felder, the Supreme Court noted that the notice-of-claim statute "operates, in
part, as an exhaustion requirement, in that it forces claimants to seek satisfaction in the
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first instance from the governmental defendant." 487 U.S. at 142. The Court thought "that
Congress never intended that those injured by governmental wrongdoers could be
required, as a condition of recovery, to submit their claims to the government responsible
for their injuries." 487 U.S. at 142. The Court held that a state-imposed exhaustion
requirement was impermissible because states are not permitted "to place conditions on
the vindication of a federal right." 487 U.S. at 147.


       The State makes two arguments that § 1983 does not preempt K.S.A. 2018 Supp.
59-29a24.


       First, the State cites the limited exhaustion requirement for prisoners created by
the CRIPA discussed by the Patsy Court. The CRIPA addressed the rights of
institutionalized persons. The Act covers several types of institutions, including an
institution which is "for persons who are mentally ill, disabled, or retarded, or chronically
ill or handicapped" and an institution which is "a jail, prison, or other correctional
facility." 42 U.S.C. § 1997(1)(B) (2012). Initially, the limited exhaustion requirement
provided that courts could continue a case for 90 days "in order to require exhaustion of
such plain, speedy, and effective administrative remedies as are available" in actions
brought by "an adult convicted of a crime confined in any jail, prison, or other
correctional facility." 42 U.S.C. §1997e(a) (1980). In 1996, Congress amended this
section with the Prison Litigation Reform Act (PLRA). See 28 U.S.C. § 1915 (1996).
Now, 42 U.S.C. § 1997e(a) (2013) provides: "No action shall be brought with respect to
prison conditions under section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted." The PLRA defines "prisoner" as "any person
incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or
adjudicated delinquent for, violations of criminal law or the terms and conditions of
parole, probation, pretrial release, or diversionary program." 42 U.S.C. § 1997e(h).


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       The State asserts that Burch is like a "prisoner confined in any jail, prison, or other
correctional facility" for the purposes of the 42 U.S.C. § 1997e(a) exhaustion provisions.
This argument is not persuasive because Burch is not a prisoner and he is not confined to
a jail, prison, or other correctional facility.


       Burch is not a prisoner because Kansas' Sexual Predator Treatment Program is an
"involuntary civil commitment process." K.S.A. 2018 Supp. 59-29a01(a). A "sexually
violent predator" is a "person who has been convicted of or charged with a sexually
violent offense and who suffers from a mental abnormality or personality disorder which
makes the person likely to engage in repeat acts of sexual violence and who has serious
difficulty in controlling such person's dangerous behavior." K.S.A. 2018 Supp. 59-
29a02(a). Many courts have found that persons in sexually violent predator programs are
not "prisoners" as defined by the PLRA. See Merryfield v. Jordan, 584 F.3d 923, 927
(10th Cir. 2009); Michau v. Charleston County, S.C., 434 F.3d 725, 727 (4th Cir. 2006);
Troville v. Venz, 303 F.3d 1256, 1260 (11th Cir. 2002); Page v. Torrey, 201 F.3d 1136,
1139-40 (9th Cir. 2000); Marcum v. Harris, 328 Fed. Appx. 792, 796 n.4 (3d Cir. 2009)
(unpublished opinion); see also Kansas v. Hendricks, 521 U.S. 346, 369, 117 S. Ct. 2072,
138 L. Ed. 2d 501 (1997) (holding that the Sexually Violent Predator Act "does not
establish criminal proceedings and . . . involuntary confinement pursuant to the Act is not
punitive"). In fact, in Hendricks, the State specifically argued that confined sexually
violent predators were not prisoners. 521 U.S. at 363 ("The State has represented that an
individual confined under the Act is not subject to the more restrictive conditions placed
on state prisoners, but instead experiences essentially the same conditions as any
involuntarily committed patient in the state mental institution."). We can find no basis to
depart from the reasoning of these courts, nor does the State provide any reason.


       Moreover, Burch is not confined in a jail, prison, or other correctional facility.
Jails, prisons, and other correctional facilities are just one category of institutions covered
by 42 U.S.C. § 1997 et seq. It also applies to institutions "for persons who are mentally

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ill, disabled, or retarded, or chronically ill or handicapped." 42 U.S.C. § 1997(1)(B).
Persons, like Burch, found to be sexually violent predators fit better into the second
category. See Hendricks, 521 U.S. at 358-59 (equating the term "mental abnormality" as
used in the Sexually Violent Predator Act with the term "mental illness"). If Congress
had intended for persons with mental illness or abnormality to exhaust administrative
remedies before bringing § 1983 claims, it could have included them in § 1997e.


          Second, the State argues that exhaustion of administrative remedies is advisable
for policy reasons. The State asserts that the Legislature implemented an exhaustion
requirement because district courts were overwhelmed with cases filed by residents of the
SPTP. By going through the administrative process, the factual issues could "be vetted
with a fully developed record for the district court to review." Additionally, because the
State could conduct fact-finding electronically and by telephone, the State could save on
travel, safety, and security related costs.


          The Supreme Court has already rejected policy arguments similar to the State's. In
Patsy, the Court held that "policy considerations alone cannot justify judicially imposed
exhaustion unless exhaustion is consistent with congressional intent." 457 U.S. at 513.
The Court reiterated this point in Felder, stating that "States . . . may no more condition
the federal right to recover for violations of civil rights than bar that right altogether . . .
where the purpose and effect of those conditions, when applied in § 1983 actions, is to
control the expense associated with the very litigation Congress has authorized." 487 U.S.
at 144.


          In conclusion, based on the holdings in Patsy and Felder, we have no hesitation in
concluding federal law preempts the exhaustion requirement of K.S.A. 2018 Supp. 59-
29a24. Congress intended for people, other than prisoners confined in jails, prisons, and
other correctional facilities, to be able to bring § 1983 claims without having to exhaust
available administrative remedies. Any state law to the contrary is invalid for burdening

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the exercise of a federal right. Although there may be good policy reasons for requiring
exhaustion, those state policies are not enough to contravene congressional intent.


       Reversed and remanded for further proceedings.




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