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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 112,455

JEFFREY SPERRY,

Appellant,

v.

DAVID MCKUNE (Warden), et al.,

(Raymond Roberts, Kansas Department of Corrections),

Appellees.

SYLLABUS BY THE COURT

1.

A petition may be dismissed under K.S.A. 2015 Supp. 60-212(b)(6) for failure to 

state a claim upon which relief can be granted. A district court considering a motion to 

dismiss filed under K.S.A. 2015 Supp. 60-212(b)(6) must decide the motion from the 

well-pleaded facts of plaintiff's petition.

2.

Under K.S.A. 2015 Supp. 60-210(c), a written instrument attached as an exhibit to 

a pleading is a part of the pleading for all purposes. Hence, documents attached to a 

petition can be considered when ruling on a motion to dismiss under K.S.A. 2015 Supp.

60-212(b)(6).

3.

If, on a motion under K.S.A. 2015 Supp. 60-212(b)(6) or (c), matters outside the 

pleadings are presented to and not excluded by a court, the motion must be treated as one 
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for summary judgment under K.S.A. 2015 Supp. 60-256. As defined in K.S.A. 2015 

Supp. 60-207(a), a "pleading" consists of a petition and an answer.

4.

When a motion to dismiss converts to a motion for summary judgment, all parties 

must be given a reasonable opportunity to present all the material that is pertinent to the 

motion. K.S.A. 2015 Supp. 60-256 and Supreme Court Rule 141 (2015 Kan. Ct. Annot. 

242) govern the form and manner of presenting these outside matters.

5. 

Before an inmate in the custody of the Kansas Secretary of Corrections files a civil 

suit against the state, any political subdivision of the state, or any public official, K.S.A. 

75-52,138 requires an inmate to (1) exhaust administrative remedies established by rules 

and regulations promulgated by the secretary of corrections and (2) file with the inmate's 

petition proof that the administrative remedies have been exhausted.

6.

Both federal and state law require an inmate in the custody of the secretary of 

corrections to exhaust administrative remedies before filing a lawsuit. But only a state 

claim is impacted by K.S.A. 75-52,138's requirement that an inmate file proof of having 

exhausted administrative remedies; the requirement does not apply to a federal claim.

7.

A district court considering a motion to dismiss filed under K.S.A. 2015 Supp. 

60-212(b)(6) errs when it considers matters outside the pleadings without requiring 

litigants to comply with Supreme Court Rule 141 (2015 Kan. Ct. Annot. 242). The error 

can be harmless if, for example, (1) the district court had excluded from its consideration 
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any matters outside those in the petition; (2) the additional material did not otherwise 

infect the district court's consideration; or (3) the subsequent filings allowed for the 

proper presentation of the minimal number of uncontroverted facts required to establish a 

defendant's entitlement to relief. Reversible error occurs, however, if an appellate court 

cannot determine what facts are or are not controverted or on what evidence the litigants 

rely.

8.

While a court will liberally construe the pleadings of pro se litigants, pro se 

litigants must still follow procedural rules. 

Review of the judgment of the Court of Appeals in an unpublished opinion filed June 5, 2015. 

Appeal from Leavenworth District Court; DAN K. WILEY, judge. Opinion filed November 23, 2016. 

Judgment of the Court of Appeals affirming in part, reversing in part, and remanding is reversed on the 

issues subject to review. Judgment of the district court is reversed on the issues subject to review and 

remanded with directions. 

Jeffrey J. Sperry, appellant, was on the brief pro se.

Fred W. Phelps, Jr., legal counsel, Kansas Department of Corrections, was on the brief for 

appellees.

The opinion of the court was delivered by

LUCKERT, J.: K.S.A. 75-52,138 requires prison inmates to (1) exhaust 

administrative remedies before filing a civil lawsuit against the Kansas Secretary of 

Corrections, a prison warden, or certain other officials and (2) file proof of that 

exhaustion when initiating the suit. This appeal raises procedural issues regarding these 

requirements and the standards for deciding motions to dismiss and for summary 
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judgment. Because we determine the district court and Court of Appeals failed to apply 

the correct standard, we reverse and remand.

FACTUAL AND PROCEDURAL HISTORY

In September 2011, Jeffrey Sperry, an inmate at the Lansing Correctional Facility 

(LCF), filed a lawsuit in district court seeking civil damages from the LCF Warden, the 

Secretary of Corrections for the State of Kansas, and the Kansas Department of 

Corrections (KDOC) (collectively, the KDOC defendants). Sperry, acting on his own 

behalf, alleged he had been exposed to asbestos and lead paint while incarcerated at LCF. 

After Sperry filed his lawsuit, this case's procedural path involved a series of motions to 

dismiss that eventually led to this appeal. Those motions focus on the allegations in 

Sperry's verified petition, which he captioned a "Complaint."

In that document, Sperry alleged that in January 2010 he first learned he had been 

exposed to contaminants. He sought medical treatment in March 2010, but a "facility 

doctor examined [Sperry] and told him that there was nothing he could do for him." 

Sperry also sought "mental health counseling," but the "psychologist simply told [Sperry] 

that worrying would not help his condition so he should not worry about the fact that he 

will become seriously ill and die prematurely due to the exposure." To remedy these 

alleged wrongs, Sperry sought an injunction ordering the KDOC defendants to treat 

Sperry's current and future medical needs through medical personnel and facilities of 

Sperry's choosing; an injunction ordering the KDOC defendants to remove all dangerous 

environmental contaminants from LCF; a declaratory judgment that the KDOC 

defendants "knowingly and/or recklessly caused [Sperry] to be exposed to friable 

asbestos and lead paint"; and monetary damages in excess of $75,000.
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As a means of obtaining this relief, Sperry alleged causes of action based on both 

federal and state law. He first alleged his federal cause of action, asserting he was entitled 

to redress under 42 U.S.C. § 1983 (2012) because the KDOC defendants violated his 

right under the United States Constitution to be free from cruel and unusual punishment. 

He then alleged several torts governed by Kansas law: negligence, battery, breach of 

fiduciary duty, and outrageous conduct.

Sperry also addressed his efforts to obtain administrative relief prior to filing his

lawsuit. According to him:

 He filed his first internal grievance with LCF in March 2010, but "[t]he 

facility refused to process the grievance." He did not attach any documents 

related to this first grievance, but he did attach a contemporaneous claim he 

filed with the Joint Committee on Special Claims Against the State, 

pursuant to K.S.A. 46-907 et seq., which was denied in September 2010.

 He filed a second grievance with LCF in October 2010, but LCF lost the 

form. Sperry did not attach a copy of this second grievance, either, but he 

included a document from a KDOC official acknowledging this filing and

stating, "I can only suspect that it was lost in the mail or misplaced."

 He filed a replacement grievance in November 2010, which was "denied all 

the way through to the Secretary of [C]orrections on December 17, 2010."

Sperry attached this third grievance and related documents to his 

"Complaint."
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These attached documents show that Sperry filed the November grievance on 

KDOC forms relating to one of two KDOC administrative procedures that potentially 

applied to his claims. KDOC defines both procedures in its regulations. K.A.R. 44-15-

101 et seq. defines one procedure (article 15 procedure) for grievances relating to, for 

example, prison conditions. K.A.R. 44-16-102 et seq. defines the other (article 16 

procedure), which applies when an inmate claims property damage or personal injury.

KDOC has adopted separate forms for each procedure.

From the documents attached to Sperry's petition, we know that Sperry used an 

article 15 form when filing his November 2010 grievance and that the grievance was 

reviewed and denied at three administrative levels—by his unit supervisor, the Warden, 

and the Secretary of Corrections. Ultimately, the Secretary, incorporating the previous 

responses, denied Sperry's claim because Sperry had not been exposed to harmful 

contaminants and had not filed an article 16 claim even though he claimed personal 

injury and sought monetary damages.

In response to Sperry's petition in district court, the KDOC defendants filed 

multiple motions to dismiss the lawsuit. The first motion raised various issues not 

presented in this appeal: whether the KDOC defendants lacked the capacity to be sued, 

whether they enjoyed immunity, and whether Sperry failed to adequately allege various 

claims. Then, in a "Supplement to Motion to Dismiss," the KDOC defendants raised the 

issue now before us: whether Sperry exhausted his administrative remedies before filing 

suit. The KDOC defendants' arguments focused on Sperry's failure to file an article 16 

claim. To support this argument, the KDOC defendants attached an affidavit of the 

Grievance/Property Claims Officer at LCF, who stated he reviewed all available LCF 

records and was unable to find any personal injury claim filed by Sperry.
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Sperry responded to both the motion and its supplement, raising several legal 

arguments regarding the KDOC defendants' capacity to be sued and the reasons they 

were not immune, the sufficiency of his allegations, and the inapplicability of article 16. 

He pursued some of those arguments before the Court of Appeals but did not advance 

them in his petition for review filed with this court. But Sperry also replied to the motions

by raising an issue preserved for our review: He argued the KDOC defendants waived 

any requirement that he exhaust an article 16 procedure by taking certain actions during 

the grievance process. When Sperry first raised his waiver argument, he asserted the

KDOC employees provided him with the wrong claim form. He also pointed to KDOC's 

Internal Management Policy and Procedure (IMPP) 01-118, which stated that "[s]taff 

assistance and all necessary forms shall be provided to inmates interested in filing a 

claim." In other words, Sperry acknowledged he never pursued an article 16 claim, but he 

argued this failure was excused because KDOC wrongfully provided him article 15 

forms.

In ruling on this first motion to dismiss and its supplement, the district court 

granted some aspects of the KDOC defendants' various arguments about capacity; this 

resulted in dismissal of KDOC itself as a party. In addition, the district court dismissed 

Sperry's personal injury claim and request for damages against the Warden and Secretary

in their official capacities because Sperry had failed to exhaust administrative remedies

when he did not file a timely article 16 claim. The court noted that Sperry "does not deny 

that he did not submit a personal injury claim within 10 calendar days of the claim[ed] 

personal injury." Then, addressing Sperry's waiver argument, the district court simply 

concluded: "The [d]efendants didn't relinquish a known right by allegedly failing to 

provide forms to the Plaintiff." The court observed that the argument seemed to be more 

one of estoppel than waiver. Without asking the litigants for arguments or to present a 

statement of facts relating to the elements of estoppel, the district court determined 
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Sperry could not establish estoppel because he had not detrimentally relied on the KDOC 

defendants. This determination appears to have been based on arguments Sperry

presented in an effort to establish that the article 16 procedure did not apply to his claim.

After the district court's ruling, Sperry's claims against the Warden and Secretary 

in their individual capacities—as opposed to official capacities—remained.

Sometime after the district court's ruling, Sperry filed an "Amended Complaint" 

without any attached documents. In many respects the "Amended Complaint" mirrored 

the original "Complaint." For example, Sperry again alleged that the KDOC defendants 

had "refused to process" his March 2010 grievance, lost his October 2010 grievance, and 

denied his November 2010 replacement grievance "all the way through[] to the Secretary 

of Corrections." But the amended pleading also differed from the original in several 

ways. Of note, Sperry did not specifically allege violations of state law; his jurisdictional 

statement was limited to "civil rights claims," and he listed only a single cause of action: 

"Eighth Amendment—Cruel and Unusual Punishment." Nevertheless, for reasons not 

made clear in the record before us, the parties and the district court continued to discuss 

the state law tort claims found in Sperry's original "Complaint." We can only assume the 

reasons are explained in a hearing not transcribed for appeal since the State does not 

assert error on this point. So we, too, will consider those claims.

Almost 2 years later, the district court dismissed all remaining claims when ruling 

on multiple motions to dismiss filed by the Warden and Secretary. In those motions the 

Warden and Secretary had argued, among other things, that all of Sperry's claims arose 

from actions subject to the prison's administrative grievance process. They renewed their 

argument that Sperry had never filed an article 16 personal injury claim and needed to do 

so. Finally, they argued Sperry failed to comply with K.S.A. 75-52,138 because he had 
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not and could not provide proof that he had timely exhausted administrative remedies 

prior to filing the lawsuit.

In response, Sperry asserted he had filed some type of claim within 10 days to put 

the facility on notice—his March 2010 grievance—and it was LCF's fault he was 

provided the wrong form. He supported his argument with a statement of facts, which

consisted of a series of numbered paragraphs. These facts were not verified, supported by 

an affidavit, or supported by references to the discovery record.

Sperry also addressed, in his response to the State's motion to dismiss, the timing 

of his claims' accrual and of his grievance filing. In one statement of fact, Sperry 

indicated he learned of his exposure to contaminants on February 22, 2010; this statement 

conflicted with Sperry's previous sworn statement in his verified "Complaint" that he had 

learned of his exposure to contaminants in January 2010. In another statement of fact, 

Sperry stated prison officials placed him in segregation for an alleged disciplinary 

violation on February 23, 2010, and "separated [him] from his rule book." He also 

alleged: "Unit Team Manger Jewell was in charge of segregation at the time and refused 

to supply plaintiff with the appropriate forms. In fact, he made certain that he did not 

return the grievance form until the ten calendar days for filing the injury claim form had 

passed."

Regarding the form used to file the grievance, Sperry alleged he used the form 

provided by prison officials. He also argued his grievance "clearly contained matters that 

were valid under the grievance procedure (i.e.[,] remediation of asbestos and lead paint[]

and medical treatment)." Sperry asserted the Warden "falsely" denied the grievance—

and, for the first time, he attached some documentation about this alleged March 2010 

grievance: a March 26, 2010, letter from the Warden stating that his grievance was 
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received, an investigation was completed, and LCF declined to take action. According to 

Sperry, he appealed the Warden's denial to the Secretary but "the appeal was never 

returned to him." Finally, Sperry alleged he "tried to file an out of time Property/Injury 

Claim form, but Unit Team Manager Muckenthaler refused to process it as it was beyond 

the 10 calendar day time limitation set forth in K.A.R. 44-16-104a." Sperry thus 

reiterated and expanded upon his argument that LCF had wrongfully provided him with 

article 15 procedure forms and thus could not now claim his lawsuit must fail because of 

a failure to pursue an article 16 procedure.

The district court rejected Sperry's waiver arguments. In reaching this result, the 

district court reasoned that Sperry had not alleged ultra vires acts on the part of the 

defendants—"all of the acts allegedly attributed to the Defendants would have clearly 

been within their dut[ies]." Thus, Sperry had to exhaust administrative remedies before 

filing a lawsuit against the Warden and Secretary in their individual capacities, which 

meant that Sperry was required to timely file an article 16 personal injury claim but had 

failed to do so. The district court rejected Sperry's argument that the KDOC defendants 

had waived reliance on K.A.R. 44-16-104a and K.S.A. 75-52,138's exhaustion

requirement. In doing so the district court incorporated its earlier ruling that the KDOC 

defendants had not knowingly waived a known right.

Sperry appealed both dismissal orders to the Court of Appeals. A panel of that 

court affirmed the district court's order in part, reversed it in part, and remanded for 

further proceedings. Sperry v. McKune, No. 112,455, 2015 WL 3632752 (Kan. App. 

2015) (unpublished opinion). Specifically, the panel affirmed the dismissal of Sperry's 

state law claims and reversed the dismissal of his § 1983 claim. 2015 WL 3632752.
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The Court of Appeals began its analysis by acknowledging that both Kansas and 

federal law require exhaustion of administrative remedies before an inmate can file suit in 

trial court. Nevertheless, because of different statutory schemes for state and federal 

claims, the issue under federal law was whether Sperry exhausted his remedies; the issues 

under Kansas law, under K.S.A. 75-52,138 specifically, were whether Sperry exhausted 

his remedies and provided proof he did so. 2015 WL 3632752, at *3-4. K.S.A. 75-52,138 

thus imposed a filing requirement in addition to an actual exhaustion requirement.

After recognizing the exhaustion requirement, the Court of Appeals discussed the 

question of which administrative procedures Sperry was supposed to follow in order to 

exhaust his remedies, concluding the article 16 procedures applied because Sperry 

claimed personal injury. 2015 WL 3632752, at *4-5. The Court of Appeals noted it was 

uncontested Sperry did not comply with the article 16 personal injury procedures. And 

even though Sperry claimed he filed some sort of claim on March 1, 2010, he did not—at 

least at the time he filed his petition—provide any proof of this initial grievance or the 

KDOC defendants' responses. The court ruled Sperry both failed to follow the proper 

procedure for exhaustion of a personal injury claim and failed to file proof of exhaustion. 

2015 WL 3632752, at *6; see K.S.A. 75-52,138.

The Court of Appeals then acknowledged an argument could be made that Sperry 

exhausted his administrative remedies under the article 15 grievance procedures, since his 

documentation showed he filed a grievance regarding conditions within the facility. 

Regardless, he still failed to file proof of timely exhaustion of administrative remedies, 

and this failure was determinative of his state law claims because of K.S.A. 75-52,138's 

filing requirements. Thus, the Court of Appeals concluded, whether Sperry was required 

to file a personal injury claim or instead was required to file a grievance, his state law 

claims failed for failure to attach proof. 2015 WL 3632752, at *6.
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The Court of Appeals then turned to Sperry's federal § 1983 claim, which, unlike 

his state law claims, was not subject to Kansas law requiring an inmate to file proof of 

exhaustion when filing his lawsuit. The Court of Appeals ultimately concluded that 

exhaustion requirements for Sperry's § 1983 claim were mandatory, but not 

jurisdictional—meaning defendants like the Warden and the Secretary could waive their 

ability to use administrative exhaustion as an affirmative defense to an inmate's suit. 

2015 WL 3632752, at *6-7. The Court of Appeals focused on Sperry's initial grievance in 

March 2010 instead of the November 2010 procedure considered by the district court, 

even though Sperry did not file any evidence of a March 2010 grievance until well after 

his petition was filed. The Court of Appeals found that the Warden addressed the merits 

of Sperry's March 2010 claim rather than rejecting it for a failure to comply with the 

article 16 claims procedure. This led the Court of Appeals to conclude: "KDOC waived 

its right to assert exhaustion of administrative remedies as an affirmative defense when it 

addressed the merits of Sperry's initial grievance . . . ." 2015 WL 3632752, at *8. 

Consequently, the Court of Appeals held the district court erred in dismissing Sperry's 

§ 1983 claim. 2015 WL 3632752, at *8.

The Warden and the Secretary of Corrections then filed a petition seeking review 

of the panel's ruling regarding Sperry's § 1983 claim; they argued the waiver issue could 

not be considered because of procedural defects. Sperry cross-petitioned for review of the 

panel's decision regarding his state causes of action; he argued, in part, the waiver 

considerations the Court of Appeals had applied to his federal claim should also apply to 

his state claims. We initially denied the Warden and Secretary's petition, but we granted 

review of Sperry's cross-petition and the case was docketed. However, after reviewing the

record and considering Sperry's cross-petition, we withdrew our denial of the Warden and 

Secretary's petition for review and granted review. Two circumstances prompted our 
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change in direction. First, on June 6, 2016, the United States Supreme Court issued Ross 

v. Blake, 578 U.S. ___, 136 S. Ct. 1850, 195 L. Ed. 2d 117 (2016), which deals with the 

exhaustion of administrative remedies when an inmate brings a § 1983 claim. As we will 

discuss in detail, this decision raises potential questions about some of the Court of 

Appeals' and district court's reasoning. Second, our review of the full record suggested 

there were procedural obstacles that precluded a final determination of the waiver issue. 

Our change of course, while unusual, is within our power and is warranted in this 

case. Under our rules, a party may not file a motion for reconsideration after a petition for 

review has been denied. Supreme Court Rule 8.03(g) (2015 Kan. Ct. R. Annot. 78). 

Nevertheless, this court has recognized its power to recall, correct, amplify, or modify its 

own mandate. E.g., West v. Insurance Co., 105 Kan. 414, 415-16, 185 P. 12 (1919). And 

here, a mandate had not even issued because of the pendency of Sperry's cross-petition 

for review. Further, this court has repeatedly observed the need for the discretionary 

power to reconsider a prior ruling, stating: "If an erroneous decision has been made, it 

ought to be corrected speedily, especially when it can be done before the litigation in 

which the error has been committed has terminated finally." Railway Co. v. Merrill, 65 

Kan. 436, 451, 70 P. 358 (1902); see Hudson v. Riley, 114 Kan. 332, 335, 219 P. 499 

(1923) ("If there was error in the ruling it is competent for the court to correct it, and 

especially where it can be done before the litigation in which it occurred has been finally 

terminated."); Henry v. Railway Co., 83 Kan. 104, 108-09, 109 P. 1005 (1910) (errors 

should be corrected before final judgment).

Given these considerations we granted review, allowed both parties to file 

additional briefing, and placed the case on another docket for simultaneous consideration 

of all issues. Both the petition and cross-petition are now ready for decision.
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ANALYSIS

The Warden and Secretary present a seemingly straightforward argument in their 

petition for review: The district court and Court of Appeals erred in considering material 

outside the pleadings when ruling on motions to dismiss. This would mean that the Court 

of Appeals should not have considered the Warden's response to Sperry's March 2010 

grievance (which, as we have repeatedly underscored above, Sperry filed after his initial 

pleading). And, because that document served as the basis for the Court of Appeals

ruling, the Court of Appeals should not have reversed the district court order dismissing 

Sperry's federal claim.

In Sperry's cross-petition he argues the district court and Court of Appeals erred in 

ruling his failure to attach proof that he exhausted his administrative remedies required 

dismissing his state law claims. He argues the exhaustion requirements of K.S.A. 75-

52,138 are not jurisdictional and he should have had a chance to correct any filing errors. 

Then, as with his federal claim, he should be allowed to present evidence of waiver. He 

suggests the Court of Appeals inconsistently applied equitable doctrines to his federal and 

state claims and that equity should excuse both his failure to timely exhaust 

administrative remedies and his initial failure to prove he did so.

The arguments arising from the petition and cross-petition are intertwined, so we 

discuss them together. In our analysis, we will examine: (1) the motion to dismiss 

standard and the standard for when material outside the pleadings is considered (i.e., the 

summary judgment standard); (2) K.S.A. 75-52,138 and the federal requirements 

regarding exhaustion of administrative remedies; (3) the specifics of what Sperry needed 

to do to exhaust those requirements—that is, the requirements of KDOC regulations 
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regarding article 15 and 16 claims; (4) equitable considerations; and (5) whether the 

district court and Court of Appeals applied the correct standards in this case. 

1. Motion to Dismiss Standard and Standard When Material Outside the Pleadings is 

Considered (i.e., the Summary Judgment Standard)

As the Warden and Secretary point out, each of the motions considered by the 

district court and Court of Appeals was labeled as a motion to dismiss. But only the third 

motion cited a statute for authority. It referred to K.S.A. 2015 Supp. 60-212(b)(6), which 

allows dismissal for "failure to state a claim upon which relief can be granted." And as 

the Warden and Secretary also point out, a district court, when considering such a

motion, must decide it "from the well-pleaded facts of plaintiff's petition." Hemphill v. 

Shore, 295 Kan. 1110, 1117, 289 P.3d 1173 (2012). 

When considering the well-pleaded facts of the petition, K.S.A. 75-52,138 adds a 

wrinkle to the usual considerations because it requires an inmate to file proof of 

exhaustion with a petition initiating suit against any of the KDOC defendants; in an 

attempt to do so, Sperry attached some documents to his first filing. We know, through 

operation of K.S.A. 2015 Supp. 60-210(c), that documents attached to a petition can be 

considered when ruling on a 60-212(b)(6) motion. See K.S.A. 2015 Supp. 60-210(c) ("A

copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all 

purposes."). This means the district court, in reviewing the KDOC defendants' motion to 

dismiss, should have considered Sperry's petition as well as his attached exhibits 

regarding his claim with the Joint Committee on Special Claims Against the State and his 

November 2010 replacement grievance.

The KDOC defendants did not solely base their first motion seeking dismissal for 

failure to exhaust administrative remedies on the facts pleaded by Sperry, however. 
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Instead, they filed the affidavit of the Grievance/Property Claims Officer at LCF, who 

stated he reviewed all available LCF records and was unable to find any personal injury 

claim filed by Sperry. By filing this affidavit, the KDOC defendants introduced matters 

outside the pleadings. This changed the appropriate standard for the motion.

K.S.A. 2015 Supp. 60-212(b)(6) explains this shift. It provides: "If, on a motion 

under subsection (b)(6) or (c), matters outside the pleadings are presented to and not 

excluded by the court, the motion must be treated as one for summary judgment under 

K.S.A. 60-256." K.S.A. 2015 Supp. 60-212(d). By definition, a "pleading" consists of a 

petition and an answer and not a filing such as the KDOC defendants' supplement to its 

motion to dismiss. K.S.A. 2015 Supp. 60-207(a). Thus, in this case, the 

Grievance/Property Claims Officer's affidavit should have served as the catalyst for 

converting the KDOC defendants' motion to dismiss into one for summary judgment.

When a motion to dismiss converts to a motion for summary judgment, "[a]ll 

parties must be given a reasonable opportunity to present all the material that is pertinent 

to the motion." K.S.A. 2015 Supp. 60-212(d). K.S.A. 2015 Supp. 60-256 and Supreme 

Court Rule 141 (2015 Kan. Ct. Annot. 242) govern the form and manner of presenting 

these outside matters. Rule 141 requires statements of fact to be set out in separately 

numbered paragraphs, with documentation and record citations to support the factual 

statements. Supreme Court Rule 141(a). The opposing party may then controvert the 

facts, again with documentation and record citations. Supreme Court Rule 141(b). Under 

K.S.A. 2015 Supp. 60-256(c)(2), summary judgment "should be rendered if the 

pleadings, the discovery and disclosure materials on file, and any affidavits or 

declarations show that there is no genuine issue as to any material fact and that the 

movant is entitled to judgment as a matter of law."
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Neither the parties, the district court, nor the Court of Appeals cited the summary 

judgment standard. Yet, both the district court and the Court of Appeals considered the 

fact established by the affidavit presented by the KDOC defendants. Because a matter 

outside the pleading was not excluded, the summary judgment standard should have been 

applied and the questions addressed by the district court should have been whether there 

were any genuine issues of material fact and whether the KDOC defendants were entitled 

to judgment as a matter of law. And, as we will explain in more detail, the district court's 

and Court of Appeals' error in considering the facts in a manner contrary to K.S.A. 2015 

Supp. 60-212, K.S.A. 2015 Supp. 60-256, and Supreme Court Rule 141 dictates the 

outcome of this appeal. To frame that procedural discussion, we need to discuss the law 

to determine what facts were material to the exhaustion issue.

2. K.S.A. 75-52,138 and Federal Law Require Inmates to Exhaust Administrative 

Remedies.

The Kansas Legislature defined an inmate's burden regarding exhaustion in K.S.A. 

75-52,138. It states, in part:

"Any inmate in the custody of the secretary of corrections . . . , prior to filing any 

civil action naming the state of Kansas, any political subdivision of the state of Kansas, 

any public official, the secretary of corrections, [or] the warden . . . as the defendant 

pursuant to the rules of civil procedure, shall have exhausted such inmate's administrative 

remedies, established by rules and regulations promulgated by the secretary of 

corrections . . . , concerning such civil action."

This portion of K.S.A. 75-52,138 corresponds to the federal Prison Litigation 

Reform Act (PLRA), which similarly requires all inmates to exhaust their administrative 

remedies prior to filing a civil suit in court. See 42 U.S.C. § 1997e(a) (2012) ("No action 

shall be brought with respect to prison conditions under [§] 1983 . . . , or any other 
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Federal law, by a prisoner . . . until such administrative remedies as are available are 

exhausted.").

K.S.A. 75-52,138 contains an additional provision, absent from federal law, 

imposing a requirement of proof of exhaustion. Specifically, it states: "Upon filing a 

petition in a civil action, such inmate shall file with such petition proof that the 

administrative remedies have been exhausted." (Emphasis added.) K.S.A. 75-52,138. In 

contrast, the United States Supreme Court has held that, while "failure to exhaust is an 

affirmative defense under the PLRA, . . . inmates are not required to specifically plead or 

demonstrate exhaustion in their complaints." (Emphasis added.) Jones v. Bock, 549 U.S. 

199, 216, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007).

When a state court considers an inmate claim under a federal law such as 

42 U.S.C. § 1983, the Supremacy Clause of the United States Constitution preempts any 

state laws or rules that inhibit prosecution of such a claim in a manner different from 

what would be required in federal court. See Prager v. Kansas Dept. of Revenue, 271 

Kan. 1, 14-15, 20 P.3d 39 (2001) (citing United States Supreme Court decisions holding 

that a state cannot rely on a rule of procedure or an exhaustion rule that would 

"'frequently and predictably'" produce different outcomes in federal civil rights litigation 

based solely on whether that litigation takes place in state or federal court). Hence, when 

an inmate states a claim under 42 U.S.C. § 1983, a Kansas state court can enforce Kansas'

requirement that an inmate exhaust administrative remedies before filing suit because the 

same requirement is present in federal law, but it cannot impose a pleading requirement 

not found in federal law.

This means that, under both federal and state law, Sperry must have exhausted his 

administrative remedies—those remedies made available by the prison system in which 
19

he is housed. But only his state claim is impacted by K.S.A. 75-52,138's pleading 

requirement. As a result, while Sperry had to file proof that he had exhausted 

administrative remedies when filing his petition in order to bring state law claims, he did 

not need to do so to bring his federal claim.

K.S.A. 75-52,138 also explains how exhaustion is to be determined; it requires an 

inmate to exhaust administrative remedies "established by rules and regulations 

promulgated by the secretary of corrections . . . concerning such civil action." In this 

case, both the district court and the Court of Appeals determined that the gravamen of 

Sperry's claim fell under article 16 of the KDOC's regulations, but the Court of Appeals 

recognized Sperry also had a potential article 15 claim. Sperry, 2015 WL 3632752, at *6. 

Which procedures govern Sperry's claim will impact how he needed to show exhaustion. 

To explain, we look to the details of the two articles in the KDOC's regulations.

3. KDOC Regulations Regarding Article 15 and Article 16 Claims

The article 15 grievance procedure applies to complaints by inmates "regarding 

policies and conditions within the jurisdiction of the facility or the department of 

corrections," "actions by employees and inmates, and incidents occurring within the 

facility," and some other circumstances. K.A.R. 44-15-101a(d)(1). An article 15 

grievance must be filed within 15 days of discovery of the event giving rise to the 

grievance, but "[n]o grievance, regardless of time of discovery, shall be filed later than 

one year after the event." K.A.R. 44-15-101b.

The other procedure—the article 16 claim procedure—applies if an inmate claims 

a "loss of or damage to the inmate's own property" or if the inmate makes a claim for 

personal injury. K.A.R. 44-16-102(a) (property damage); K.A.R. 44-16-104a (personal 
20

injury). A personal injury claim must be presented to prison officials "within 10 calendar 

days of the claimed personal injury." K.A.R. 44-16-104a(a).

Grievances about prison conditions may, in some circumstances, overlap with 

claims of personal injury. In such a case, the regulations explain that simply filing an 

article 15 grievance will not suffice. K.A.R. 44-15-101a(d)(2) provides that the article 15

grievance procedure "shall not be used in any way as a substitute for, or as part of, . . . the 

property loss or personal injury claims procedure" under article 16. And K.A.R. 44-16-

104a(c) states that the article 16 requirement for filing a personal injury claim within 10 

days "shall apply whether or not the inmate pursues a grievance pursuant to article 15 and 

whether or not the inmate files a claim with the legislative joint committee on special 

claims against the state."

Both the district court and the Court of Appeals concluded these regulations 

required Sperry to file an article 16 form in order to seek relief for personal injury. The 

Court of Appeals also distinguished between Sperry's article 15 and article 16 claims. It 

acknowledged that "[a]n argument could be made that Sperry did properly exhaust his 

administrative remedies by filing" an article 15 claim relating to conditions in the prison. 

Sperry v. McKune, No. 112,455, 2015 WL 3632752, at *6 (Kan. App. 2015) 

(unpublished opinion). Indeed, in Sperry's "Complaint," he complained about prison 

conditions and sought an injunction requiring the removal of contaminants from the 

prison. But the Court of Appeals cited the requirement that article 15 claims be filed 

within 15 days from the date of the discovery of the event giving rise to the grievance and 

concluded the claim must be dismissed because "he did not attach documentation of his 

initial grievance." 2015 WL 3632752, at *6. By implication, the Court of Appeals 

concluded the November 2010 grievance—the only grievance filed with the court when 

Sperry originally filed this lawsuit—was untimely.
21

Sperry's failure to prove he had filed a timely grievance defeated his state law 

claims, according to the Court of Appeals. But, because the proof-on-filing requirement 

did not apply to his federal claim, the Court of Appeals examined his federal cause of 

action separately. And with regard to that, it held the KDOC defendants waived the 

exhaustion requirement when the Warden did not deny Sperry's March 2010 claim on the 

grounds it was an article 15, not article 16, form. Sperry, 2015 WL 3632752, at *6-8.

In his cross-petition for review, Sperry argues the Court of Appeals conclusion 

regarding his failure to prove exhaustion is inconsistent with its conclusion that equitable 

principles—specifically waiver—excuses his failure to exhaust administrative remedies. 

He argues the equitable considerations should be considered as a basis for explaining

why an inmate cannot file the necessary proof of exhaustion. Logically, it would seem 

that if an inmate could not exhaust administrative remedies because of circumstances 

giving rise to equitable considerations, the inmate would not be able to meet the proof 

requirement of K.S.A. 75-52,138. Yet, the Court of Appeals did not explain the 

difference in its treatment of K.S.A. 75-52,138's two requirements.

Sperry's argument depends on whether equitable considerations can be considered 

at all when K.S.A. 75-52,138 applies (and perhaps on other legal questions). We turn 

next to the legal basis for the district court's and Court of Appeals' consideration of 

equity.

4. Equitable Considerations

As we have discussed, both the district court and the Court of Appeals, citing 

Chelf v. State, 46 Kan. App. 2d 522, 263 P.3d 852 (2011), accepted the legal possibility 
22

that principles of equity could excuse an inmate's failure to exhaust administrative 

remedies. The Chelf court held "the exhaustion requirement set forth in K.S.A. 75-52,138 

is a mandatory, but nonjurisdictional, prerequisite to filing suit that must be strictly 

enforced by the court. Because it is not jurisdictional, failure to exhaust administrative 

remedies as required by this particular statute may be subject to certain equitable 

defenses." Chelf, 46 Kan. App. 2d at 533.

Before us, neither party takes issue with the holding in Chelf, even though this 

court has never expressly adopted Chelf. Perhaps this is because the Chelf court explained 

its analysis in detail, applying guidance from the United States Supreme Court regarding 

how to distinguish statutes that impose conditions upon a court's jurisdiction and those 

that merely impose procedural conditions that do not affect jurisdiction. This same 

reasoning has been adopted by other Court of Appeals panels, leading to the conclusion 

that the requirements of K.S.A. 75-52,138 are nonjurisdictional. E.g., Pittman v. Bliss, 

No. 113,577, 2015 WL 9302708, at *4 (Kan. App. 2015) (unpublished opinion) (citing 

Chelf); Sperry, 2015 WL 3632752, at *7 (same); Burdine v. State, No. 108,152, 2013 WL 

1943075, at *3 (Kan. App. 2013) (unpublished opinion) (same); Redford v. State, No. 

106,787, 2013 WL 781102, at *6 (Kan. App. 2013) (unpublished opinion) (same).

Nevertheless, a recent decision of the United States Supreme Court interpreting 

the PLRA suggests courts should not create judicial exceptions to the exhaustion 

requirement of statutes such as K.S.A. 75-52,138. See Ross v. Blake, 578 U.S. ___, 136 

S. Ct. 1850, 1856-57, 195 L. Ed. 2d 117 (2016) (holding the PLRA imposes a mandatory 

exhaustion requirement "[a]nd that mandatory language means a court may not excuse a 

failure to exhaust . . . . No doubt, judge-made exhaustion doctrines, even if flatly stated at 

first, remain amenable to judge-made exceptions. . . . But a statutory exhaustion provision 

stands on a different footing. There, Congress sets the rules—and courts have a role in 
23

creating exceptions only if Congress wants them to. For that reason, mandatory 

exhaustion statutes like the PLRA establish mandatory exhaustion regimes, foreclosing 

judicial discretion.").

Even before Ross, federal courts expressed reluctance to apply exceptions to the 

PLRA's exhaustion requirement, which is comparable—although not identical—to 

K.S.A. 75-52,138. See Hinton v. Corrections Corp. of America, 623 F. Supp. 2d 61, 63 

n.1 (D.D.C. 2009) (collecting cases and concluding "[t]he law is unsettled . . . on the 

question of the extent to which waiver, equitable estoppel or tolling can apply to defeat 

the affirmative defense of non-exhaustion under the PLRA"); Hoover v. West, 93 Fed. 

Appx. 177, 182 (10th Cir. 2004) (unpublished opinion) ("[T]he Seventh and Tenth 

Circuits have so far declined to decide whether equitable estoppel applies" to the PLRA 

exhaustion requirement.).

In light of the United States Supreme Court's recent decision in Ross and the Chelf 

court's reliance on United States Supreme Court decisions in its analysis, we decline to 

decide today whether we will adopt Chelf's holdings. We defer this determination for two 

reasons. First, that issue has not been presented to us in either petition for review and the 

parties have not cited to nor discussed Ross or its implications on Sperry's federal claim 

or on the Chelf analysis. See Supreme Court Rule 8.03(a)(4)(C) (2015 Kan. Ct. R. Annot. 

79) ("The court will not consider issues not presented or fairly included in the petition 

[for review]."). And, second, we need not resolve the questions because procedural issues 

require us to remand this case. On remand, the parties will be able to fully argue whether 

Ross impacts these proceedings if their arguments necessitate such a discussion.
24

Now that we have explained the legal background, we return to the manner in 

which the exhaustion issue was presented to and considered by the district court and the 

Court of Appeals.

5. Application of the Appropriate Standard

As our discussion of the law indicates, Sperry had to exhaust his remedies to seek 

judicial relief for either his federal or his state law causes of action and had to file proof 

of exhaustion to advance his state law claims. Facts critical to an exhaustion 

determination under Chelf include: (1) When did the incident giving rise to a grievance 

or claim occur? (2) Was a grievance or claim filed? (3) When was the grievance or claim 

filed? (4) Was the correct process or grievance filed and appealed to all administrative 

levels? and (5) Were there any equitable considerations? See 46 Kan. App. 2d at 534-35.

In Sperry's petition, he not only made allegations of fact, he arguably provided 

proof of any allegations he had made because he verified his petition—meaning he swore 

an oath that the contents of the petition were "true and correct." This court has long held 

that a "petition verified, positively, and not on information and belief, is, in effect, an 

affidavit." Atchison v. Bartholow, 4 Kan. 124, 128, 1866 WL 457 (1866). And we have 

allowed the use of a verified petition as evidence as long as it was not "verified on 

information and belief." State, ex rel., v. Molitor, 175 Kan. 317, 325, 263 P.2d 207 

(1953).

The verified facts in the petition address: (1) when the claim arose (Sperry stated 

he learned of his exposure to contaminants in January 2010 and was denied medical 

treatment in March 2010); (2) whether a grievance was filed (Sperry filed several 

grievances); (3) when a grievance or claim was filed (Sperry filed an internal grievance 
25

and a claim with the Joint Committee on Special Claims Against the State in March 

2010); (4) what procedure was used and appealed through the various administrative 

steps (the March grievance was not exhausted but a November one, filed on an article 15 

form, was exhausted); and (5) a potential equitable consideration arose (because the 

KDOC defendants "refused to process the grievance"). The KDOC defendants' did not 

particularly focus on these facts, either by arguing (1) the statements established the 

claim was untimely or (2) the statements were too vague or legally insufficient to meet 

the requirements of K.S.A. 75-52,138 or to raise an issue under Chelf.

Instead, the KDOC defendants' exhaustion arguments focused on the regulations 

requiring Sperry to bring an article 16 claim before filing suit. To establish that he had 

not done so, they filed the affidavit of the LCF Grievance/Property Claims Officer. The 

district court and Court of Appeals found that Sperry had not filed an article 16 claim, 

and both courts noted that Sperry had not disputed that fact. Although the affidavit was 

only attached to the supplement to the first motion to dismiss, the district court made the 

same finding in its second motion. Hence, under K.S.A. 2015 Supp. 60-212(d), the 

KDOC defendants' motions should have been treated as motions for summary judgment.

Ironically, it is the Warden and Secretary who argue the Court of Appeals erred 

when it considered facts outside the pleadings in determining the KDOC defendants

waived the exhaustion requirement. Because they submitted the affidavit that converted 

the process from one under K.S.A. 2015 Supp. 60-212 to one under K.S.A. 2015 Supp. 

60-256, we reject the KDOC defendants' contention that this case should be resolved as a 

motion to dismiss. A party cannot invite a court to consider material outside a pleading 

and then complain of error when the court does so. See Water Dist. No. 1 of Johnson Co.

v. Prairie Center Dev., 304 Kan. 603, 618, 375 P.3d 304 (2016).
26

We note further that the KDOC defendants' appellate brief before the Court of 

Appeals did not directly respond to Sperry's argument that equitable considerations 

excused his failure to exhaust administrative remedies. See Sperry, 2015 WL 3632752, at 

*7 ("Sperry argues that KDOC's violation of its own rules constitutes waiver of the 

exhaustion of administrative remedies requirement. Defendants do not address this 

argument on appeal."). As a result, the KDOC defendants abandoned this issue. State v. 

Seacat, 303 Kan. 622, 628, 366 P.3d 208 (2016) ("[T]he failure to brief and argue an 

issue constitutes abandonment of the issue.").

Nevertheless, the KDOC defendants may still be correct in arguing that the district 

court and Court of Appeals erred by considering matters they should not have in ruling 

on the KDOC defendants' motion. But rather than being based on an inappropriate 

application of the motion to dismiss standard, as they argue, the error arises from an 

improper application of the rules regarding summary judgment and the summary 

judgment standard. Both courts considered facts argued by the litigants even though the 

factual statements did not cite to "the pleadings, depositions, answers to interrogatories, 

and admissions on file, together with the affidavits" and without a determination "that 

there is no genuine issue as to any material fact and that the moving party is entitled to 

judgment as a matter of law." Born v. Born, 304 Kan. 542, 554, 374 P.3d 624 (2016); see 

K.S.A. 2015 Supp. 60-256; Supreme Court Rule 141. And while we will liberally 

construe the pleadings of pro se litigants like Sperry, pro se litigants must still follow 

procedural rules. Bruner v. State, 277 Kan. 603, 605, 88 P.3d 214 (2004).

The failure of the litigants to comply with Rule 141 and of the district court or 

Court of Appeals to enforce its provisions creates a situation where the record before us 

lacks the clarity necessary for ruling on a motion for summary judgment. This court 
27

considered the ramifications of such a situation in Rhoten v. Dickson, 290 Kan. 92, 223 

P.3d 786 (2010).

In that case, this court held that a district court erred when it did not require 

litigants to comply with Rule 141 after materials outside the pleadings were argued in 

relation to a motion to dismiss. The court explained that not requiring compliance "risks 

confusion among the litigants and the court and runs a substantial prejudicial risk to the 

fair presentation of the facts and law." 290 Kan. at 103. But the court also noted the error 

could be harmless and cited cases supporting harmlessness when, for example, (1) the 

district court had excluded from its consideration any matters outside those in the 

petition; (2) the additional material did not otherwise infect the district court's 

consideration; or (3) the subsequent filings "allowed for the proper presentation of the 

minimal number of uncontroverted facts required to establish defendants' entitlement" to 

relief. 290 Kan. at 104-05. The Rhoten court contrasted these situations with one that 

arose in McCullough v. Bethany Med. Center, 235 Kan. 732, 683 P.2d 1258 (1984).

In McCullough, this court found reversible error when a district court failed to 

enforce Supreme Court Rule 141. Noting Rule 141 "is not just fluff," the court 

determined there was "no way to determine then or now what facts are or are not 

controverted or on what evidence the parties rely." 235 Kan. at 736.

This case presents a situation like that in McCullough. An examination of the 

conflicting rulings of the district court and the Court of Appeals on the issue of waiver 

illustrates why.

The district court made the factual finding that the KDOC defendants did not 

waive reliance on the exhaustion doctrine because they "didn't relinquish a known right 
28

by allegedly failing to provide forms" to Sperry. Ordinarily, the issue of waiver presents a 

question of fact that can only be decided on summary judgment when the material facts 

are uncontroverted. See Foundation Property Investments v. CTP, 286 Kan. 597, 610, 

186 P.3d 766 (2008). In this case, we are unable to tell what facts the district court relied 

on in finding that KDOC did not relinquish a known right and we are similarly unable to 

tell whether those facts were disputed.

Our inability to determine the facts on which the district court's ruling was based 

creates problems because the Court of Appeals reached the opposite conclusion, holding

instead:

"[T]he trial court's decision to dismiss Sperry's 42 U.S.C. § 1983 claim for failure to 

exhaust administrative remedies was improper because KDOC waived its right to assert 

exhaustion of administrative remedies as an affirmative defense when it addressed the

merits of Sperry's initial grievance that was later deemed to be improper." Sperry, 2015 

WL 3632752, at *8.

The Court of Appeals reached this conclusion by relying on a March 26, 2010, 

document in which the LCF Warden denied Sperry's claim—a document Sperry attached 

only with his response to the KDOC defendants' third motion to dismiss. It appears the 

Court of Appeals raised the effect of the March 2010 denial of Sperry's grievance on its 

own, without benefit of argument from the parties. Yet, this document was not attached 

to Sperry's "Complaint" or "Amended Complaint" and was not before the district court 

when it made its initial ruling on waiver. And because Sperry's allegations regarding this 

letter did not conform to Rule 141, it is not clear that the KDOC had an opportunity to 

controvert any facts regarding the effect of the letter. Moreover, because the grievance 

process was not final until the Warden's letter had been reviewed by the Secretary, a 
29

question of law arises as to whether the Warden's letter was sufficient to waive the 

exhaustion doctrine on behalf of all—or any—of the KDOC defendants.

We could provide several other examples of essential facts we cannot determine,

but this one area of controverted facts establishes the point. Given our inability to know 

whether the facts cited by the district court or the Court of Appeals are supported and, if 

supported, are uncontroverted and thus ripe for summary judgment, we conclude the 

district court and the Court of Appeals erred in failing to require compliance with Rule 

141. Consequently, we remand for consideration of the various filings under the 

appropriate standards. Given this resolution, we need not discuss Sperry's other 

arguments.

We, therefore, reverse the Court of Appeals holding that the KDOC defendants 

waived their right to rely on Sperry's alleged failure to exhaust administrative remedies.

Likewise, we reverse the district court's decision granting the KDOC defendants' motion 

to dismiss because it was based, at least in part, on facts not properly before the court.

CONCLUSION

Both the district court and Court of Appeals erred in not enforcing the 

requirements of Supreme Court Rule 141, and that error cannot be considered harmless 

because there is "no way to determine then or now what facts are or are not controverted 

or on what evidence the parties rely." McCullough, 235 Kan. at 736. We, therefore, 

reverse the district court's decision that Sperry's claims must be dismissed for failure to 

exhaust administrative remedies. We also reverse the Court of Appeals. We remand to 

the district court for reconsideration of the parties' arguments and, if appropriate, 

enforcement of Supreme Court Rule 141.
30

Judgment of the Court of Appeals affirming in part, reversing in part, and 

remanding is reversed on the issues subject to review. Judgment of the district court is 

reversed on the issues subject to review and remanded with directions.