1 IN THE SUPREME COURT OF THE STATE OF KANSAS

N o
. 112,455
J EFFREY S PERRY , Appel l ant ,

v
. D AVID M C K UNE ( Warden) , et al

. , ( R aymond Roberts, Kansas Department of Corrections ) ,

Appell ees
.

SYLLABUS BY THE COUR T

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 one2

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. 24 2) 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

- 5 2,138 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 fe deral and state law require a n 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 exhaus ted 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 consideration3

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 o f 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 D istrict C ourt; D AN K. W ILEY , judge

. Opinion filed November 23 , 20 16. Judgment of the Court of Appeals affirming in part, rever sing in part, and remanding is reversed on the issue s subject to review . Judgment of the district court is reversed on the issue s subject to review and remanded with directions

.
Jeffrey J. Sp erry , appellant, was on the brief pro se
.
Fred W. Phelps, Jr. , legal counsel, Kansas Department of Corrections, was on the brief for appellee s
.
The opinion of the court was delivered by

L UCKERT , 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 the se requirements and the standards for deciding motions to dismiss and for summary4

judgment. Because we determine the district court and Court of Appeals failed to apply the correct standard, we reverse and remand.

F ACTUAL AND P ROCEDURAL H ISTO RY
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 Cor rections (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 "C omplaint. "

In that document, Sperry alleged that in Janu ary 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 pre m aturely due to the exposure." To remedy these alleged wrongs, Sperry s ought 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 declara tory 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 $75,000.5

As a means of obtaining this relief, Sperry alleged causes of action based o n both federal and state law . He first alleg ed 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 fil ing his lawsuit. According to h im:

 H e 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 Com mittee on Special Claims A gainst the State, pursuant to K.S.A. 46

- 907 et seq. , which was denied in September 2010.

 H e 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 acknowledg ing this filing and

s t a t ing , " 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."6

These attached documents show that Sperry filed the November grievance on KDOC forms relating to one of two KDOC administrativ e 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 th e 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 , t he KDOC defendants filed multiple motions to dismiss the lawsuit

. The first motion raised various issues not presented in this appeal: whether the KDOC defendants lack ed the capacity to be sued, whether they enjoyed immun ity , and whether Sperry fail ed to adequately allege various claims

. Then, i n a "Supplement to Motion to Dismiss," the KDOC defendants raised the issue now before us : whether Sperry exhaust ed his administrative remedies before filing suit. The KDOC defendants' arguments focused o n Sperry's failure to file an article 16 claim. To support this argument, t he 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.7

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 inapplicab ility 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 motion s by raising an issue preserved for our review : He argued the KDOC defendants waived any requirement that he exhaust a n article 16 procedure by taking certain actions during the grievance process

. When Sperry first raised hi s waiver argument , he assert ed th e KDOC employees provide d him with the wrong claim form. H e also pointed to KDOC's Internal Management Policy and Procedure (IMPP) 0 1

- 118, which state d that " [ s ] taff assistance and all necessary form s 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 fo rms
.

In ruling on th is first motion to dismiss and its supplement , the district court grante d some aspects of the KDOC defendants ' various arguments about capacity; this resulted i n dismissal of KDOC itself as a party . In addition, the district court dismissed Sperry's personal injury claim and request for damages against the W arden and S ecretary in their official capac it ies because Sperry had failed to exhaust administrative remedies when he did not file a timely article 16 cl aim

. T he 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, a ddressing 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 determined8

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 a rticle 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 "A mended C omplaint " mirrored the original "C omplaint. " 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 thro ugh[] 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 claim s, " 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 Sp erry'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 dismiss ed all remaining claims when ruling

on multiple motions to dismiss filed by the Warden and Secretary . In th ose motion s the Warden and Secretary had argued , among other things, that all of Sperry's claims arose from actions subject to the prison's administr ative 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 had9

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 wro ng form. He supported his argument with a s tatement of f acts , which consist ed of a series of numbered paragraphs. The se facts were not verified, supported by an affidavit, or supported by references to the discovery record.

Sperry also addressed , in his r esponse 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 o n 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 a n 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 t he ti m e and refused to supply plaintiff with the appropriate forms. In fact, he mad e certain that he did not return the grievance form until the ten ca le ndar days for filin g the injury claim form had passed. "

Regarding the form used to file the grievance, Sperry all eged he used the form provided by prison officials. He also argued his g rievance " 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 was10

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, t he 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 Defe ndants 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 a n artic le 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 th at
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 c laim. 2015 WL 3632752.11

The Court of Appeals began its analysis by acknowledging that b oth Kansas and federal law require exhaustion of administrative remedies before an inmate can file suit in trial court. Nevertheless , because of different statutory sche mes 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, we re whether Sperry exhausted his remedies and provided proof he did so

. 2015 WL 3632 752 , 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 claim ed personal injury

. 2015 WL 3632752, at * 4

- 5. The Court of Appeals noted it was uncontested Sperry did not comply with the article 16 pers onal 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 defendant s ' response s
. 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

. R egardless, 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 grie vance, his state law claims failed for failure to attach proof. 2015 WL 3632752, at *6.12

T he 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 proo f 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 . T he 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 th e article 16 claims procedure. This led t he 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 dec ision 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 w e granted review of Sperry's cross
- petition and the case was dockete d

. However, after review ing the record and consider ing Sperry's cross

- petition, we withdrew our denial of the Warden and Secretary's petition for review and granted review. Two circumstances prompted our13

change in direction. First, on Ju ne 6, 2016, t he United States Supreme Court i ssued Ross v. Blake , 578 U.S. ___, 136 S. Ct. 1850, 195 L. Ed. 2d 117 (2016) , which deals with the exhaustion of administrative rem edies when an inmate brings a § 1983 claim . As we will discuss in detail, this decision raises p otential questions about some of the Court of Appeals' and district court's reasoning

. Second , our review of the full record suggested the re were procedural obstacles that precluded a final determination of the waiver issue

.
Our change of course , while u nusual, 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. 7 8). 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 litigatio n 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 corre ct 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 considerati ons we granted review, allowed both parties to file additional briefing , and placed t he case on another docket for simultaneous consideration of all issues. Both the petition and cross

- petition are now ready for decision.14 A NALYSIS

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 s hould 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)

. A nd, 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 S perry'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 argue s the exhaustion requirements of K.S.A. 75

- 52,138 are not jurisdictional and he should have had a chan ce to correct any filing errors. Then, as with his federal cla im, he should be allowed to present evidence of waiver. He suggests the Court of Appeals inconsistently applied equitable doctrines to his federal a nd state claims and that equity should excuse both his failure to timely exhaust administrative remedies and his i nitial 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 e xamin e : (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 administrativ e remedies; (3 ) the specifics of what Sperry needed to do to exhaust those requirements

— that is, the requirements of KDOC regulations15

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, 11 17, 289 P.3d 1173 (2012).

W hen considering the well

- pleaded facts of the petition, K.S.A. 75

- 52,138 adds a wrinkle to the usual consideration s because it requires an inmate to file proof of exhaustion with a petition initiating suit against any of the KDOC defendant s; 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." ). T his 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 A gainst 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.16

Instead, the y 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 a ll 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 fa ct to be set out in separately numbered paragraphs, with documentation and record citations to support the factual
statement s . Supreme Court Rule 141(a). The opposing party may then controvert the facts, again with documentation and record citations. Supre me 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 fac t and that the movant is entitled to judgment as a matter of law. "17

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 gen uine 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 a nd Federal Law Requir e Inmates to Exhaust Administrative Remedies

.
The Kansas L egislature defined an inmate's burden regarding exhaustion in K.S.A. 75

- 52,138

. It s tates, 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 e xhausted 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 Ac t (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 othe r18

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 pr oof that the administrative remedies have been exhausted ." ( E mphasis 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, 1 66 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 C lause of the United States Constitution preempts any
stat e laws or rules that inhibit prosecution of such a claim in a manner different from what would be re quired in federal court . See Prager v. Kansas Dept

. of Revenue , 2 71 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 state s 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.

Th is means that , under both federal and state law , Sperry must have exhausted his administrative remedies

— those remedies made available by the prison system in which19

he is housed . B ut 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 requir es 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 ex haustion

. T o 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

- 101 a(d)(1). An article 15 grievance must be fi led 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

— app lies 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 (personal20

injury). A personal injury claim must be present ed 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 legisl ative joint committee on special claims against the state."

Both the district court and the Court of Appeals concluded th ese 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 pri son. 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 o f 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 f iled 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
- p etition for review, S perry 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 conside rations should be considered as a basis for explain ing 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

n ext to the legal basis for the district court's and Court of Appeals' consideration of equity.

4. Equitable Considerations

As we have discussed, b oth 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 possibility22

that principles of equity could excuse an inmate's failure to exhaust administrative remedies. T he 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 Supre me 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 Cour t interpreting the PLRA suggest s courts should not create judicial exceptions to the exhaustion requirement of statutes such as K. S.A. 75

- 52,138 . S ee 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 ame nable to judge

- made exceptions.

. . . But a statutory exhaustion provision stands on a different footing. There, Congress sets the rules

— and courts have a role in23

creating exceptions only if Congress wants them to. For that reason, mandatory exhaustion statutes like the PLRA establish mandator y 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. Correct ions Corp. of Am erica , 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 F ed

. 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 decisi on 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 n or discussed Ross or its implications on Sperry's federal claim or on the Chelf analysis

. See Suprem e Court Rule 8.03(a)(4)(C) (2015 Kan. Ct. R. Annot. 7 9 ) (" The court will not consider issues not presented or fairly includ ed in the petition [for review]

. " ). And, second, we need not resolve the questions because procedural issues require us to remand this case . On remand, t he 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. Applic ation of the Appropriate Standard

As our discussion of the law indicates, Sperry had to e xhaust 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 clai ms. Facts critical to an exhaustion determination under Chelf include: (1) W hen did the incident giving rise to a grievance or claim occur ? (2) Was a grievance or claim filed ? (3) W hen was the grievance or claim filed ? (4) Was the correct process or grievance filed and appealed to all administrative levels ? and (5) W ere 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 mad e b ecause 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 lea rned of his e xpos ure to contaminants in January 2010 and was denied medical treatment in March 20 10 ) ; (2) whether a grievance was filed ( Sperry filed several grievan ces ) ; (3) when a grievance or claim was filed ( Sperry filed an internal grievance25

and a claim with the Joint Committee on Special Claims A gainst the State in March 2010) ; ( 4 ) what procedure was used and appealed through the various administrative steps ( th e March grievance was not ex hausted 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 particular ly focus on these facts, either by arguing (1) the statements established the claim was untimely or (2) the statements w ere too vague or legally insufficient to meet the requirements of K.S.A. 75

- 52,138 or to raise an issue under Chelf

.
Instead, t he 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, t hey filed the affidavit of the LCF Grievance/ Property C laims O fficer . 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

sa me finding in its second motion. Hence, under K.S.A. 2015 Supp. 60

- 212 (d) , the KDOC defendants' motions should ha ve been treated as motions for summary judgment.

Ironically, it is the Warden and Secretary who argue the Court of Appeals erred when i t 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 C o
. v. Prairie C en t e r 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 exhaus t 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 arguin g 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 err or arises from an improper application of the rules regarding summary judgment and the summary judgment standard. B oth courts consider ed facts argued by the litigants even though the factual statements did not cite to " the pleadings, depositions, answers t o 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 w e 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 lack s the clarity necessary for ruling on a motion for summary jud gment. This court27

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 mat erial 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 10 4

- 0 5 . 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 a nd 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 th ey "didn't relinquish a known right28

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 Proper ty Investments v. CTP , 286 Kan. 597, 610, 186 P.3d 766 (2008) . In this case, w e are unable to tell what facts the district court relied on in finding that KDOC did not relinquish a k n own right and we are similarly unable to tell whether those facts were disputed.

O ur inability to determine the facts on which the district court's ruling was based creates problems because t he 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, t his 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
cont rovert 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 , a29

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 fact s 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. Cons equently , 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 grant ing the KDOC defendants' motion to dismiss because it was based, at least in part, on facts not properly before the court.

C ONCLUSION

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 controver ted

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 Cou rt 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

r emanding is reversed on the issues subject t o review . Judgment of the dis trict court is reversed on the issue s subject to review and remanded with directions.