                                      No. 113,270¹

            IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                     MILO A. JONES,
                                       Appellant,

                                            v.

                      KANSAS DEPARTMENT OF CORRECTIONS and
                           KANSAS ATTORNEY GENERAL,
                                   Appellees.


                             SYLLABUS BY THE COURT


1.
      The Eleventh Amendment to the United States Constitution precludes suing a state
in federal court for money that would be paid from the state treasury based on the past
conduct of state officials. This is a form of sovereign immunity, under which the
government cannot be sued without its consent.


2.
      For some purposes, the State of Kansas has waived its sovereign immunity
through the Kansas Tort Claims Act, K.S.A. 75-6101 et seq., which generally makes
Kansas governmental entities liable for damages caused by negligent and wrongful acts
of their employees acting within the scope of their employment, K.S.A. 2015 Supp. 75-
6103, and protects employees against financial liability for damages caused by their
actions. K.S.A. 75-6109. But the State of Kansas has not waived its sovereign immunity
under the Eleventh Amendment through the Kansas Tort Claims Act. See K.S.A. 75-
6116(g).
3.
          In this case, the plaintiff, a Kansas prison inmate, obtained a money judgment in
federal court against a former prison guard for violation of the prisoner's federal civil
rights. When the plaintiff couldn't collect that judgment because he couldn't locate the
former guard or any of the guard's assets, he filed the federal judgment against the guard
in Kansas state court and attempted to collect it against the guard's employer, the Kansas
Department of Corrections. He cannot do so because the claim arose under federal law,
Kansas was immune from suit in federal court for that claim, and Kansas has not waived
its sovereign immunity.


          Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed February
26, 2016. Affirmed.


          Milo A. Jones, appellant pro se.


          John Wesley Smith, assistant attorney general, and Derek Schmidt, attorney general, for appellees.


Before MALONE, C.J., LEBEN and POWELL, JJ.


          LEBEN, J.: Milo Jones, a Kansas prison inmate, obtained a money judgment in
federal court against a former prison guard. Jones wasn't able to collect any of his
judgment, though, because he wasn't able to locate the former guard or any of that guard's
assets.


          So Jones has tried to collect the judgment against the Kansas Department of
Corrections, the state agency that had employed the guard. Jones first tried to do that in
federal court, but his claim against the state agency was dismissed for lack of jurisdiction:
The United States Court of Appeals for the Tenth Circuit held that the Eleventh
Amendment to the United States Constitution prevented a federal court from entering a
money judgment against the State for the past conduct of its employees. See Jones v.
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Courtney, 466 Fed. Appx. 696 (10th Cir. 2012) (unpublished opinion) (dismissing claim
against the State for lack of jurisdiction); Jones v. Courtney, No. 04-3255-JWL-DJW,
2007 WL 2893587 (D. Kan. 2007) (unpublished opinion) (granting judgment in favor of
Jones and against former prison guard). After the federal court dismissed his claim
against the State, Jones brought suit in the Kansas state court, again trying to collect his
judgment against the Kansas Department of Corrections, a state agency.


       The state district court also dismissed this claim for lack of jurisdiction, although it
didn't explain the basis for its decision. While an explanation would have been helpful,
the question is a purely legal one, so we must review it independently anyway, without
any required deference to the district court. See Frazier v. Goudschaal, 296 Kan. 730,
743, 295 P.3d 542 (2013). The State of Kansas argues on appeal here that the district
court correctly dismissed Jones' claim against it because the State has sovereign
immunity against his claim under the Eleventh Amendment. Specifically determining
whether the State is immune also presents a solely legal question, see Cessna Aircraft Co.
v. Metropolitan Topeka Airport Authority, 23 Kan. App. 2d 1038, 1045-46, 940 P.2d 84,
rev. denied 262 Kan. 959 (1997), and if it is immune, a court does not have jurisdiction to
address the claim. See Goldbarth v. Kansas State Board of Regents, 269 Kan. 881, 894, 9
P.3d 1251 (2000); Jones, 466 Fed. Appx. at 698-99.


       Jones' judgment against the prison guard came on a civil-rights claim under a
federal statute, 42 U.S.C. § 1983 (2000). Neither the Kansas Department of Corrections
nor the State of Kansas was a defendant in the federal lawsuit. In fact, they couldn't have
been because the Eleventh Amendment precludes suing a state in federal court for money
that would be paid from the state treasury based on the past conduct of state officials. See
Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974);
Jones, 466 Fed. Appx. at 698-701.




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       Even so, Jones argues that he can now collect the federal-court judgment against
the State in state court. He contends that the State isn't immune because he brought his
claim as one for mandamus, an action that compels an official to carry out a clearly
defined duty. He also argues that the State has agreed in the Kansas Tort Claims Act to
"indemnify its employees against damages . . . caused by an act or omission of an
employee while acting within the scope of his or her employment." K.S.A. 75-6109. We
disagree.


       First, Jones isn't trying to get a public official to carry out some general duty of his
or her job—he's trying to get the State to pay a money judgment obtained based on the
past conduct of a state employee. That's exactly the sort of liability the State has
immunity from under the Eleventh Amendment. See Edelman, 415 U.S. at 663 ("[A] suit
by private parties seeking to impose a liability which must be paid from public funds in
the state treasury is barred by the Eleventh Amendment."); Jones, 466 Fed. Appx. at 699.
The State wasn't a party to the federal lawsuit in which Jones obtained his judgment, and
the federal court had no power to grant a judgment against the State on Jones' claim. It
stands to reason, then, that filing Jones' federal-court judgment in a state court cannot
magically transform it into a judgment payable by the State.


       Second, the State has not waived its sovereign immunity under the Eleventh
Amendment. Another provision of the Kansas Tort Claims Act—not cited by Jones—
provides that "[n]othing . . . in the Kansas tort claims act shall be construed as a waiver
by the state of Kansas of immunity from suit under the 11th amendment to the
constitution of the United States." K.S.A. 75-6116(g). See Connelly v. Kansas Highway
Patrol, 271 Kan. 944, 962, 26 P.3d 1246 (2001) (noting that the State has not waived its
sovereign immunity from suits seeking monetary damages under 42 U.S.C. § 1983)
(citing Beck v. Kansas Adult Authority, 241 Kan. 13, 21, 735 P.2d 222 [1987]).




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       Third, the Kansas Supreme Court has held that the State of Kansas has sovereign
immunity from claims by individuals based on federal law even when the claims are
brought in state court. Connelly, 271 Kan. at 961; Schall v. Wichita State University, 269
Kan. 456, 466, 7 P.3d 1144 (2000). Thus, even if Jones would have initially brought his
claims in state court and attempted to include the State as a defendant, even a state court
would not have had jurisdiction to enter a judgment on this claim against the State. While
the State can waive immunity, Schall, 269 Kan. at 466, Jones' waiver claim is based on
K.S.A. 75-6109. As we've already noted, that provision of the Kansas Tort Claims Act
doesn't serve to waive Eleventh Amendment immunity. See K.S.A. 75-6116(g).


       In sum, Jones has a valid federal judgment against the former prison guard. He
was entitled to that judgment and had the right to collect it. What he does not have is a
claim that can be presented in state court to have the State of Kansas pay that claim: The
State has not waived its sovereign immunity.


       We therefore affirm the district court's judgment, which dismissed Jones' claim for
lack of subject-matter jurisdiction.




¹REPORTER'S NOTE: Previously filed as an unpublished opinion, the Supreme Court
granted a motion to publish pursuant to Rule 7.04 (2015 Kan. Ct. R. Annot. 64). The
published version was filed with the Clerk of the Appellate Courts on August 3, 2016.


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