RENDERED: MAY 6, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-1246-MR

ERIC L. GIBSON APPELLANT 

v. 

APPEAL FROM LYON CIRCUIT COURT

HONORABLE C.A. WOODALL, III, JUDGE

ACTION NO. 19-CI-00071

KENTUCKY DEPARTMENT OF 

CORRECTIONS AND DEEDRA 

HART APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: GOODWINE, MAZE, AND MCNEILL, JUDGES.

GOODWINE, JUDGE: Eric L. Gibson (“Gibson”) appeals pro se from the 

judgment of the Lyon Circuit Court dismissing his complaint on the basis that he 

failed to exhaust administrative remedies. We affirm.

Gibson alleges that, on September 9, 2018, while he was an inmate, he 

slipped and broke his right leg in two places on the grounds of the Kentucky State 
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Penitentiary. On June 12, 2019, he filed a complaint against the Kentucky 

Department of Corrections and Warden DeEdra Hart (collectively “Corrections”) 

in the circuit court asserting claims under the Kentucky Constitution and the 

Eighth Amendment of the United States Constitution, as well as alleging 

negligence. No documentation was attached to Gibson’s complaint.

Corrections filed a motion to dismiss Gibson’s complaint under CR1

12.02(f) arguing he failed to exhaust administrative remedies as mandated by KRS2

454.415. The circuit court allowed Gibson to file an amended complaint. His 

amended complaint was virtually identical to his original complaint except that it 

included a statement that he had exhausted administrative remedies by timely filing 

an institutional grievance. Record (“R.”) at 22-23. No documentation was 

attached to the amended complaint.

Corrections again moved to dismiss Gibson’s complaint on the same 

grounds. In response, Gibson filed a motion, which he styled as a motion to show 

cause, regarding his alleged exhaustion of administrative remedies on July 26, 

2019. Therein, he repeated the claim that he exhausted administrative remedies. 

Gibson attached two documents to his motion. The first appears to be a log of 

grievances filed by inmates which shows that he filed a grievance on January 4, 

1 Kentucky Rules of Civil Procedure.

2 Kentucky Revised Statutes.
-3-

2019. R. at 34. The second is a letter dated July 22, 2019, from Gibson addressed 

to the deputy warden of the prison requesting information on the status of his 

grievance. R. at 35. Corrections responded to the motion, maintaining its 

argument that Gibson had not exhausted administrative remedies. Corrections 

attached a copy of Gibson’s grievance and a grievance rejection notice to its 

response.

On August 16, 2019, the circuit court granted Corrections’ motion and 

dismissed Gibson’s complaint. The court determined that neither the complaint 

nor the amended complaint included documentation showing Gibson’s exhaustion 

of administrative remedies. Furthermore, the court found the documents attached 

to Gibson’s July 26, 2019 motion did not “overcome the failure to exhaust 

administrative remedies.” R. at 46. 

On September 3, 2019, Gibson moved to alter, amend, or vacate the 

judgment under CR 59.05. Before the circuit court ruled on his motion, Gibson

filed a notice of appeal on September 13, 2019. In case number 2019-CA-1388-

MR, this Court ordered Gibson’s appeal be held in abeyance for sixty days to allow 

the circuit court to rule on the CR 59.05 motion. Gibson did not seek an extension 

of the period of abatement when the court did not address the motion within the 

sixty days. Because a CR 59.05 motion has the affect of converting a final 
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judgment into an interlocutory one until it is resolved, this Court dismissed 

Gibson’s appeal. 

On August 26, 2020, the circuit court denied Gibson’s CR 59.05 

motion. This appeal followed. 

We review judgments on motions to dismiss under CR 12.02(f) de 

novo. Morgan v. Bird, 289 S.W.3d 222, 226 (Ky. App. 2009) (citation omitted). 

Because such a motion involves a pure question of law, we owe the circuit court’s 

decision no deference. Id. (citation omitted).

On appeal, Gibson argues the circuit court erred in dismissing his 

complaint for failure to exhaust administrative remedies. In part, KRS 454.415 

mandates:

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

inmate . . . until administrative remedies as set forth in 

the policies and procedures of the Department of 

Corrections, county jail, or other local or regional 

correctional facility are exhausted.

(2) Administrative remedies shall be exhausted even if 

the remedy the inmate seeks is unavailable.

(3) The inmate shall attach to any complaint filed 

documents verifying that administrative remedies 

have been exhausted.

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

inmate . . . if the inmate has not exhausted 

administrative remedies[.]
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The burden to provide documentation of exhaustion of administrative 

remedies is placed solely on the inmate by KRS 454.415(3). Herein, Gibson 

attached no documentation to either his complaint or amended complaint, a clear 

violation of the statute. Even the documents attached to his July 26, 2019 motion 

do not show exhaustion of administrative remedies. Instead, the documents show 

only that he filed a grievance. They do not indicate what arguments he made 

therein, nor do they show the outcome or that he exhausted the grievance process. 

Furthermore, prior to filing an action in circuit court, Gibson was 

required to follow the grievance procedures detailed in CPP3 14.6. Therein, an 

inmate must first file a grievance within five business days after the incident. CPP 

14.6(II)(J)1.a.(2). Thereafter, “[t]he Grievance Coordinator may reject a grievance 

that does not comply with the grievance process requirements[,]” including 

timeliness. CPP 14.6(II)(J)1.a.(13). 

Even if we were to consider the documentation provided by 

Corrections in its response to Gibson’s July 26, 2019 motion, his claims would 

ultimately fail. Gibson was injured on September 9, 2018 but did not file his 

grievance until January 4, 2019. As noted in the grievance rejection notice, 

3 Kentucky Corrections Policies and Procedures.
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Gibson’s grievance was filed more than five business days after the incident. R. at 

40. 

Based on the foregoing, we affirm the judgment of the Lyon Circuit 

Court. 

ALL CONCUR.

BRIEF FOR APPELLANT:

Eric L. Gibson, pro se

West Liberty, Kentucky

BRIEF FOR APPELLEES:

Richard D. Lilly

Frankfort, Kentucky