RENDERED: JANUARY 6, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0081-MR

JAMES HARRISON APPELLANT 

v. 

APPEAL FROM LYON CIRCUIT COURT

HONORABLE C. A. WOODALL, III, JUDGE

ACTION NO. 19-CI-00157

DENISE MONTALTA; DEEDRA 

HART; HARRY VENSION; JANE 

DOE; JOHN DOE; KENTUCKY 

DEPARTMENT OF CORRECTIONS; 

AND WELLPATH CORPORATION 

LLC APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: THOMPSON, CHIEF JUDGE; CALDWELL AND GOODWINE, 

JUDGES.

THOMPSON, CHIEF JUDGE: James Harrison (“Appellant”), pro se, appeals 

from an order of the Lyon Circuit Court granting the motion of Denise Montalta, 

DeEdra Hart, Harry Vension, Kentucky Department of Corrections (“KDOC”),
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and Wellpath Corporation LLC (collectively “Appellees”) to dismiss Appellant’s 

complaint alleging that Appellees improperly confiscated medications and medical 

items or failed to properly supervise the other named Appellees. Appellant argues 

that the circuit court erred in dismissing his action for failure to state a claim upon 

which relief could be granted per Kentucky Rules of Civil Procedure (“CR”) 

12.02(f), or per Kentucky Revised Statutes (“KRS”) 454.415. After careful 

review, we find no error and affirm the order on appeal.

FACTS AND PROCEDURAL HISTORY

Appellant is an inmate at the Eastern Kentucky Correctional Complex 

(“EKCC”).1 On December 30, 2019, he filed a complaint in Lyon Circuit Court 

alleging that KDOC employees Vension and/or unknown defendants John Doe or 

Jane Doe confiscated his medication and other medical items2 during a search of 

his personal property without properly providing an itemized receipt.3 Appellant 

sought declaration that the Corrections Policies and Procedures (“CPP”) have the 

force of law and that Appellees should be enjoined from further confiscation. 

1 During the pendency of these proceedings, Appellant was also housed at the Green River 

Correctional Complex.

2 Appellant alleged that one or more of Appellees failed to distribute to him a nebulizer device to 

assist his breathing.

3 According to the complaint, Hart was warden of the facility when Appellant’s medication was 

improperly confiscated. Vension, and unknown parties John Doe and Jane Doe, were KDOC 

employees. Montalta was a registered nurse employed by Wellpath LLC, which is a prison 

healthcare provider.
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Appellant also sought $500.00 per day from the filing of the complaint until the 

matter was resolved. Though Appellant asserted that Appellees’ actions 

constituted negligence and the intentional infliction of emotional distress, the 

substance of his complaint was that Appellees improperly failed to comply with 

the CPP.

On May 6, 2021, Hart, Vension, and KDOC filed a responsive 

pleading and motion to dismiss the complaint.4 In support of the motion, Hart, 

Vension, and KDOC argued that Appellant failed to exhaust his KDOC 

administrative remedies before the filing of the complaint as required by KRS 

454.415. In the alternative, they asserted that Appellant improperly failed to 

provide with the complaint proof that he exhausted his administrative remedies as 

required by statute. Hart, Vension, and KDOC also argued that the CPP does not 

confer rights on inmates; therefore, Appellant’s complaint should be dismissed. 

Finally, Hart, Vension, and KDOC maintained that because Appellant sued Hart 

and Vension in both their individual and official capacities, and as the action was 

actually against a governmental entity which employed Hart and Vension, the 

action as against the individual employees should be dismissed.

4 Wellpath and Montalta were not parties to the motion to dismiss, and had not filed a responsive 

pleading prior to the Lyon Circuit Court’s dismissal of the action.
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On August 20, 2021, the Lyon Circuit Court entered an order granting 

the motion to dismiss. The court found that Appellant would not be entitled to 

relief under any set of facts he could prove, even when the allegations set out in the 

complaint were taken as true and the pleadings were liberally construed in a light 

most favorable to Appellant. Appellant’s subsequent motion to reconsider was 

denied and this appeal followed.5

STANDARD OF REVIEW

“When reviewing appeals of CR 12.02(f)[6] dismissals, we take as true 

the allegations contained in the complaint.” Hardin v. Jefferson County Board of

Education, 558 S.W.3d 1, 4 (Ky. App. 2018). A ruling on a CR 12.02 motion 

resolves a question of law, which we review de novo. Morgan v. Bird, 289 S.W.3d 

222, 226 (Ky. App. 2009) (citations omitted). 

ARGUMENTS AND ANALYSIS

Appellant, pro se, argues that the Lyon Circuit Court erred in granting 

Appellees’ motion to dismiss for failure to state a claim upon which relief could be 

granted. Appellant asserts that the order granting Appellees’ motion was 

premature, as the matter was adjudicated before Wellpath LLC entered an 

5 Counsel for KDOC states that Appellant has filed 14 lawsuits.

6 CR 12.02(f) provides that a defendant may assert by way of motion the defense of a failure to 

state a claim upon which relief may be granted.
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appearance and filed a responsive pleading. He also argues that the court erred in 

implicitly ruling that the CPP does not confer rights on inmates. Lastly, Appellant 

argues that, contrary to Appellees’ assertion in their motion to dismiss, Appellant 

may properly prosecute claims against Hart and Vension in their official capacities. 

He seeks an opinion reversing the order on appeal and remanding the matter to the 

Lyon Circuit Court for further proceedings.

The focus of Appellant’s complaint is that Appellees violated the CPP 

as it relates to the confiscation of Appellant’s medication and medical supplies, and 

that the CPP has “the force of law and cannot be ignored.”7 Prison regulations, 

however, are “primarily designed to guide correctional officials in the 

administration of a prison . . . [and are] not designed to confer rights on 

inmates[.]” Sandin v. Conner, 515 U.S. 472, 481-82, 115 S. Ct. 2293, 2299, 132 L.

Ed. 2d 418 (1995).

KRS 454.415 states, 

(1) No action shall be brought by or on behalf of an 

inmate, with respect to: 

(a) An inmate disciplinary proceeding;

(b) Challenges to a sentence calculation;

(c) Challenges to custody credit; or

(d) A conditions-of-confinement issue;

7 Complaint at p. 7.
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until administrative remedies as set forth in the policies 

and procedures of the Department of Corrections, county 

jail, or other local or regional correctional facility are 

exhausted.

(2) Administrative remedies shall be exhausted even if 

the remedy the inmate seeks is unavailable.

(3) The inmate shall attach to any complaint filed 

documents verifying that administrative remedies have 

been exhausted.

(4) A court shall dismiss a civil action brought by an 

inmate for any of the reasons set out in subsection (1) of 

this section if the inmate has not exhausted 

administrative remedies, and may include as part of its 

order an assessment of court costs against the inmate as 

the court may deem reasonable and prudent. The 

correctional facility may enforce this assessment against 

the inmate’s canteen account and against any other assets 

of the inmate through any other mechanism provided by 

law.

The management of Appellant’s possessions is properly characterized 

as a condition of confinement issue per KRS 454.415(1)(d). When applied to the 

facts before us, the statute required Appellant to exhaust his administrative 

remedies (KRS 454.415(1)) before proceeding in circuit court, and to attach to the 

complaint any documents verifying the exhaustion of his administrative remedies 

(KRS 454.415(3)). Appellant did attach documents to his complaint demonstrating 

that a prior grievance received administrative consideration. The attached 

documents, however, addressed only a prior grievance wherein Appellant 

complained about the risk of contracting HIV in the communal shower after other 
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inmates shaved their facial hair resulting in bleeding. The documents did not 

verify the exhaustion of his administrative remedies as to his instant grievance. 

Per the mandatory “shall” language of KRS 454.415(4), the Lyon Circuit Court 

was statutorily required to dismiss Appellant’s action for failure to properly verify 

the exhaustion of his administrative remedies. 

Finally, we find no basis for concluding that the circuit court erred in 

dismissing the complaint prior to Wellpath and Montalta filing responsive 

pleadings. In a pleading filed on May 6, 2021, counsel for Hart, Vension, and 

KDOC informed the court that Appellant had not served Wellpath and Montalta. 

CONCLUSION

Appellant’s failure to exhaust his administrative remedies, and failure 

to file his complaint with supportive documentation per KRS 454.415(3), forms a 

sufficient basis for affirming the Lyon Circuit Court’s order dismissing Appellant’s 

complaint.

8

 We hold as moot any question as to whether Appellant may properly 

maintain an action against Hart and Vension in their official capacities. Per KRS 

454.415(4), the circuit court properly dismissed his action. Accordingly, we affirm 

the order of the Lyon Circuit Court dismissing Appellant’s complaint.

8 Appellant’s pro se complaint contains passing references to negligence and the intentional

infliction of emotional distress arising from the confiscation of his medicine and medical 

equipment. It is apparent from Appellant’s pleadings, however, that he is not prosecuting these 

claims as independent torts. Rather, his references to negligence and the intentional infliction of 

emotional distress derive from his underlying claim that Appellees failed to abide by the CPP.
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ALL CONCUR.

BRIEFS FOR APPELLANT:

James Harrison, pro se

West Liberty, Kentucky

BRIEF FOR APPELLEES DEEDRA 

HART, HARRY VENSION, AND 

THE KENTUCKY DEPARTMENT 

OF CORRECTIONS:

John Hamlet

Frankfort, Kentucky