Matson v. State

NOT DESIGNATED FOR PUBLICATION

No. 126,020

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

MIKE C. MATSON,

Appellant,

v.

STATE OF KANSAS and PAUL SNYDER, WARDEN, et al.,

Appellees.

MEMORANDUM OPINION

Appeal from Cowley District Court; CHRISTOPHER SMITH, judge. Submitted without oral

argument. Opinion filed September 6, 2024. Reversed and remanded with directions.

Mike C. Matson, appellant pro se.

Fred W. Phelps, Jr., deputy chief legal counsel, of Kansas Department of Corrections, for

appellees.

Before ATCHESON, P.J., ISHERWOOD and HURST, JJ.

HURST, J.: After being incarcerated for almost 30 years, Mike C. Matson was

denied parole which led to him filing a grievance with the Winfield Correctional Facility

(WCF) in which he claimed that prison officials interfered with and hindered his parole

process. Matson alleges that shortly after filing his grievance, prison officials retaliatorily

removed his minimum-security status and transferred him to a higher security facility.

Thereafter, he filed the present suit claiming that the State and various prison personnel

violated his constitutional rights to freedom of speech under 42 U.S.C. § 1983 and

negligently supervised, retained, hired, and trained personnel causing him damages from

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a wrongful transfer in violation of the Kansas Tort Claims Act (KTCA). The district court

dismissed both of Matson's claims finding that the defendants were immune from liability

under the KTCA. Matson appeals.

As Matson correctly argues, the district court erroneously dismissed both of his

claims. The district court failed to address Matson's federal § 1983 claim and wrongly

found that the KTCA police protection immunity shielded the defendants from liability

for his negligence claim. Moreover, at this early stage of litigation, the district court

lacked sufficient information to find that the discretionary authority exception immunized

defendants from KTCA liability. Finally, the prison mailbox rule makes Matson's

response to defendants' motion to dismiss timely. The district court's dismissal of

Matson's § 1983 and KTCA claims is reversed and remanded with instructions to accept

Matson's response to plaintiff's motion to dismiss as timely.

FACTUAL AND PROCEDURAL BACKGROUND

Mike C. Matson is currently incarcerated following his conviction for the first-

degree murder and second-degree murder of two people in 1992. State v. Matson, 260

Kan. 366, 367-69, 921 P.2d 790 (1996). During his incarceration, Matson has continued

to exercise his legal rights through various pro se actions. See, e.g., Matson v. Kansas

Dept. of Corrections, 301 Kan. 654, 346 P.3d 327 (2015); Matson v. State, No. 123,600,

2021 WL 6068711 (Kan. App. 2021) (unpublished opinion) (retaliatory prison transfer

claim under 42 U.S.C. § 1983); Matson v. Electrex Inc., No. 23-1075-JWB-GEB, 2023

WL 5224841 (D. Kan. 2023) (unpublished opinion); Matson v. Kansas, No. 11-3192-

SAC, 2012 WL 1080485 (D. Kan. 2012) (unpublished opinion).

In this matter, Matson petitioned the Cowley County District Court for damages

against the State, the WCF Warden, and several personnel at WCF, alleging the

defendants violated his constitutional right to free speech in violation of 42 U.S.C. § 1983

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and negligently supervised, retained, hired, and trained personnel in violation of the

Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq., causing him damages from

wrongful transfer. Matson asserted that after being denied parole, on November 23, 2020,

he submitted a grievance stating he was "denied basic rights in my parole process."

Matson's grievance alleged that he was denied a copy of his parole decision and denied

the right to have an attorney present for his parole hearing. According to Matson's

petition, the day after filing the grievance, WCF employees retaliated against him by

handcuffing and taking him to segregation; revoking his minimum custody; and

transferring him to Hutchinson Correctional Facility, which he alleged was a maximum-

security prison.

On June 22, 2021, the defendants answered and asserted affirmative defenses

including absolute immunity, qualified immunity, failure to state a claim upon which

relief may be granted, and immunity under the KTCA. They reasserted those defenses in

a November 2021 amended answer and thereafter the parties engaged in various

discovery disputes including motions to compel and related hearings. On August 30,

2022, through new counsel, the defendants filed a motion to dismiss and argued

immunity from Matson's claims under the KTCA, K.S.A. 75-6104(n) and (e), and

immunity from his federal claims. They also argued that Matson's petition failed to

provide a short and plain statement of claims as required by K.S.A. 60-208.

On September 14, 2022, the district court received Matson's response to the

defendants' motion to dismiss. The response stated that it was executed on September 9,

2022.

On September 14, 2022, the district court granted the defendants' motion to

dismiss. The court found that (1) Matson failed to reply to defendants' motion to dismiss

within seven days as required by Kansas Supreme Court Rule 133(b) and (2) the

defendants were immune from liability under the "'Police Protection immunity'" and

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"'Discretionary Immunity'" of the KTCA. The district court did not separately address the

defendants' alleged immunity from liability for Matson's § 1983 federal claim.

On September 30, 2022, the district court received Matson's motion to alter or

amend its order granting the defendants' motion to dismiss and his objections to its

findings of fact and conclusions of law. Matson provided documentation that he hand

delivered his response to the motion to dismiss to prison officials on Friday, September 9,

2022, and it was placed in the mail on Monday, September 12, 2022. Matson argued that

his response to the motion to dismiss was timely under the prison mailbox rule. Matson

alternatively argued that defendants' motion to dismiss should be considered a dispositive

motion and that he was within that filing deadline.

The district court denied Matson's motion to alter or amend judgment and his

objections to its findings and conclusions. Matson appealed the district court's dismissal

of his claims and denial of his motion to alter or amend and denial of his objections to the

district court's findings and conclusions.

DISCUSSION

On appeal, Matson asserts that the prison mailbox rule should apply to his case

and, therefore, his response to the defendants' motion to dismiss was timely filed. He also

argues that the defendants are not entitled to immunity from his state law claims under

the KTCA and that even if KTCA immunity applied, it would not apply to his federal §

1983 claim. For the reasons stated below, this court finds Matson's arguments availing.

I. THE DISTRICT COURT ERRED IN FINDING MATSON'S RESPONSE TO THE

DEFENDANTS' MOTION TO DISMISS UNTIMELY

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Matson claims the district court incorrectly calculated the filing deadline because

it failed to apply the prison mailbox rule, and thus erred in finding that his response to the

defendants' motion to dismiss was untimely. Matson also argues that the district court

applied the wrong filing deadline for his motion to alter or amend and his objections to its

findings and conclusions. This court exercises unlimited review over questions of law,

including statutes and Supreme Court Rules related to filing deadlines. Nauheim v. City

of Topeka, 309 Kan. 145, 149, 432 P.3d 647 (2019); Dawson v. BNSF Railway Co., 309

Kan. 446, 451, 437 P.3d 929 (2019).

Defendants filed their motion to dismiss on August 30, 2022, and certified that a

copy was sent to Matson on the same date. Service of the motion was completed upon

mailing, which triggered Matson's right to respond. See K.S.A. 2023 Supp. 60-

205(b)(2)(C). Pursuant to Supreme Court Rule 133(b) (2024 Kan. S. Ct. R. at 214), "the

response must be filed no later than 7 days after service of the motion or as otherwise

provided by the court." However, because the defendants served Matson by mail, Matson

was entitled to 3 additional days to respond, which extended his response time to 10 days.

K.S.A. 2023 Supp. 60-206(d). Therefore, Matson was required to file his response to the

defendants' motion to dismiss by Friday, September 9, 2022, which Matson asserts he

accomplished by delivering his response to prison officials on that date.

The United States Supreme Court has held that a presently incarcerated inmate

engaging in pro se litigation suffers a unique set of circumstances making it more

difficult to adhere to filing deadlines. See Houston v. Lack, 487 U.S. 266, 271, 108 S. Ct.

2379, 101 L. Ed. 2d 245 (1988). For example, incarcerated litigants proceeding pro se

often lack access to computers, email, and filing systems and have little control over the

timing of their mailings. In Houston, the Court held that certain filings by incarcerated

pro se litigants are deemed filed on the date delivered to prison officials—overcoming

some of the hurdles to timely filing. 487 U.S. at 270-71. The numerous reasons the Court

in Houston identified for why incarcerated pro se litigants have difficulty timely filing in

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habeas corpus cases are applicable to Matson's response to the defendants' motion to

dismiss in this civil litigation. See Houston, 487 U.S. at 270-71. Just as the Court

explained in Houston, Matson could not travel to the courthouse to file his document with

the clerk, had no attorney for that purpose, and had to rely on prison officials to act

without delay in filing his response. See 487 U.S. at 270-71.

Kansas appellate courts have applied this same prison mailbox rule to various

types of civil and criminal litigation and filings. See, e.g., Taylor v. McKune, 25 Kan.

App. 2d 283, 287-88, 962 P.2d 566 (1998) (applying the federal prison mailbox rule to

K.S.A. 60-1501 petitions); see also Sauls v. McKune, 45 Kan. App. 2d 915, 916, 260 P.3d

95 (2011) ("[U]nder the prison mailbox rule, a habeas petition is considered filed when it

is delivered to prison authorities for mailing—not on the date it is eventually filed with

the court clerk—since those prison authorities control what happens after the paper is

delivered to them."); Kansas Dept. of Revenue v. Fletcher, No. 111,631, 2015 WL

3632318, at *2 (Kan. App. 2015) (unpublished opinion) (applying the prison mailbox

rule described in Sauls to inmate's appeal from denial of motion for relief from judgment

under K.S.A. 60-260 in civil matter); State v. Dillingham, No. 99,189, 2008 WL

5428180, at *2-3 (Kan. App. 2008) (unpublished opinion) (applying the federal prison

mailbox rule to an appeal from denial of a motion to withdraw plea); Redford v. State,

No. 94,138, 2006 WL 1816320, at *3 (Kan. App. 2006) (unpublished opinion) (applying

the federal prison mailbox rule to K.S.A. 60-1507 motions). This court finds no reason to

restrict the applicability of the prison mailbox rule to prevent its use here, and finds that

the district court should have applied the prison mailbox rule to Matson's response to the

defendants' motion to dismiss and Matson's motion to alter or amend the judgment.

Matson's response to the defendants' motion to dismiss certified that he hand

delivered it to prison officials on September 9, 2022. Further, in his motion to alter or

amend judgment, Matson provided a copy of his account withdrawal request showing

that he signed the form to pay for postage on September 9, 2022, and that it was received

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in the prison mailroom on September 12, 2022. When applying the prison mailbox rule,

Matson's response to defendants' motion to dismiss was timely.

Matson hand delivered his motion to alter or amend judgment and his motion to

amend or make additional findings to a prison official on September 26, 2022, and the

district court received them on September 30, 2022. In its order denying Matson's

motions, the court erroneously concluded that "K.S.A. 60-259(f) states such motions are

to be filed no later than 10 days after entry of judgment," which was entered on

September 14, 2022.

However, K.S.A. 2023 Supp. 60-259(f) provides that "[a] motion to alter or amend a

judgment must be filed no later than 28 days after the entry of judgment." This means

that the district court made an error of law in applying the incorrect filing deadline.

Matson's motions were timely. See K.S.A. 2023 Supp. 60-259(f); K.S.A. 2023 Supp. 60-

252(b). Even so, the district court addressed Matson's arguments in its order denying

Matson's motions and found them unpersuasive. Given the ultimate findings in this case,

there is no further action necessary regarding Matson's motion to alter or amend or his

objections to the court's findings and conclusions.

II. THE DISTRICT COURT ERRED IN DISMISSING MATSON'S CLAIMS

Matson alleged the defendants deprived him of his First Amendment rights under

the United States Constitution in violation of 42 U.S.C. § 1983 and that the State and

WCF Warden negligently supervised, retained, hired, and trained personnel in violation

of the KTCA. The defendants argued that they were immune from suit under both § 1983

and the KTCA. The district court dismissed both of Matson's claims but only addressed

the defendants' immunity under the KTCA. On appeal, Matson convincingly argues that

the KTCA immunity did not apply to his federal § 1983 claim and that the defendants

failed to establish immunity for his KTCA claim.

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A. The district court failed to address whether the defendants established

qualified immunity supporting dismissal of Matson's § 1983 claim.

The district court dismissed Matson's KTCA claim and his federal § 1983 claim

applying KTCA immunity. The district court's order dismissing Matson's claims explains

what the district court considered and the basis for its decision, stating its "judicial

skepticism toward a Motion to Dismiss" but determined that Matson failed to timely

respond to the motion to dismiss within seven days and "the Defendants, the KDOC and

individual employees of KDOC, are immune from this suit under both the 'Police

Protection Immunity' and the 'Discretionary Immunity' as found in the Kansas Tort

Claims Act." The district court then summarized its decision stating that, "the Defendants

are entitled to a dismissal based upon the two previously stated reasons. The Plaintiff

failed to timely respond to the Defendant[s'] Motion to Dismiss; and the Defendants are

immune from suit in the instant matter." The court left no doubt about the basis for its

decision.

On appeal, the defendants argue that Matson's federal § 1983 claim should have

been dismissed for failure to adequately plead. However, that was not the basis for the

district court's decision, so the defendants essentially ask this court to find that dismissal

was appropriate because the district court was right for the wrong reason. See Rose v. Via

Christi Health System, Inc., 279 Kan. 523, 525, 113 P.3d 241 (2005) ("If a trial court

reaches the right result, its decision will be upheld even though the trial court relied upon

the wrong ground or assigned erroneous reasons for its decision."). This court declines to

make such a finding. The district court accurately set forth the standard for notice

pleading in Kansas, which generally requires merely a "short and plain statement of the

claim showing that the pleader is entitled to relief . . . and . . . a demand for the relief."

K.S.A. 2023 Supp. 60-208(a). Moreover, in Kansas the petition does not require a

detailed legal theory of relief and "'the petition is not intended to govern the entire course

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of the case.'" Williams v. C-U-Out Bail Bonds, 310 Kan. 775, 784, 450 P.3d 330 (2019)

(quoting Berry v. National Medical Services, Inc., 292 Kan. 917, 918, 257 P.3d 287

[2011]). Dismissal for failure to state a claim—as the defendants seek on appeal—

requires the court to find that when all the facts are resolved in favor of the plaintiff the

"allegations in the petition clearly demonstrate that the plaintiff does not have a claim."

310 Kan. at 784. The district court did not make such a finding and actually appears to

have found otherwise. This court agrees that Matson's petition meets the minimum

requirements for stating a claim by adequately providing notice to the defendants of his

claims, including the factual basis and his requested relief.

The defendants also seek dismissal of Matson's § 1983 claim asserting qualified

immunity—which they argued before the district court. This qualified immunity protects

government officials "'from liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable person

would have known.'" Leverington v. City of Colorado Springs, 643 F.3d 719, 732 (10th

Cir. 2011). When a defendant raises qualified immunity in a motion to dismiss, the court

must consider whether (1) the plaintiff alleged facts supporting a constitutional violation;

and (2) that right was clearly established at the time of the defendant's alleged

misconduct. 643 F.3d at 732. Thus, the district court was first required to determine

whether Matson had a clearly established constitutional right to file his grievance. See

Reichle v. Howards, 566 U.S. 658, 664, 132 S. Ct. 2088, 182 L. Ed. 2d 985 (2012) (A

clearly established right is one for which the "'existing precedent must have placed the

statutory or constitutional question beyond debate.'"); see also Gee v. Pacheco, 627 F.3d

1178, 1189 (10th Cir. 2010) (finding that prisoners have a constitutionally protected right

to file grievances). After establishing whether Matson had a constitutionally protected

right, the district court was required to determine whether Matson's petition sufficiently

alleged a violation of that right. See Shero v. City of Grove, Okl., 510 F.3d 1196, 1203

(10th Cir. 2007) (stating the standard for establishing a § 1983 violation); Frazier v.

Dubois, 922 F.2d 560, 561-62 (10th Cir. 1991) ("[P]rison officials do not have the

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discretion to punish an inmate for exercising his first amendment rights by transferring

him to a different institution."). The district court failed to perform this analysis and thus

erroneously dismissed Matson's § 1983 claim.

B. The defendants failed to establish immunity under the KTCA supporting

dismissal of Matson's negligence claim.

Matson alleged the State and the WCF Warden breached their duty to properly

supervise, retain, hire, and train employees resulting in him being wrongly transferred to

a less desirable location in retaliation for filing a grievance. Under the KTCA:

"[E]ach governmental entity shall be liable for damages caused by the negligent or

wrongful act or omission of any of its employees while acting within the scope of their

employment under circumstances where the governmental entity, if a private person,

would be liable under the laws of this state." K.S.A. 75-6103(a).

The State as a governmental entity and the Warden—as an employee of a governmental

entity—are both subject to liability under the KTCA. See K.S.A. 75-6103(a); K.S.A. 75-

6102(d). Under the KTCA, the general rule is liability and immunity is an exception to

that general rule. Therefore, those arguing for immunity carry the burden of

demonstrating such. Thomas v. Board of Shawnee County Comm'rs, 293 Kan. 208, 233,

262 P.3d 336 (2011).

The State and the Warden argue that both the police protection immunity and

discretionary function immunity shield them from liability for Matson's claims. The

police protection immunity provides that "[a] governmental entity or an employee acting

within the scope of the employee's employment shall not be liable for damages resulting

from . . . failure to provide, or the method of providing, police or fire protection."

(Emphasis added.) K.S.A. 75-6104(n). The Kansas Supreme Court has held that "[t]here

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is no question that penal officials and employees have the powers of law enforcement

officers when such powers are necessary for the performance of their duties" and when

housing prison inmates "the State's duty could be classified as custodial and as providing

police protection for the benefit of all Kansans." Cansler v. State, 234 Kan. 554, 571-72,

675 P.2d 57 (1984); see also Keiswetter v. State, 304 Kan. 362, 369, 373 P.3d 803 (2016)

("[T]he KTCA's police protection exception can apply to correctional facilities and their

supervisory personnel."). The defendants argue that the classification of Matson's security

status and decision to transfer him to a different facility were activities within the police

protection immunity.

In Keiswetter, an inmate escaped and assaulted an elderly woman who later died,

and the woman's decedent accused the State of negligent supervision of the inmate. The

court explained that Keiswetter's claim fell under the police protection exception to

liability "because it invokes the State's 'failure to provide, or the method of providing,

police . . . protection.'" 304 Kan. at 372 (quoting K.S.A. 2015 Supp. 75-6104[n]). The act

of moving prisoners between penal institutions for court dates implicates the police

protection activity of "keeping apart from the rest of the population those convicted

felony offenders whose actions have been and perhaps promise to be dangerous and

inimical to society." Cansler, 234 Kan. at 571-72. The immunity applies to how the

governmental entity decides to provide police protection, but it is not an absolute

immunity to all actions within a penal institution or involving prisoners. See, e.g.,

Jackson v. City of Kansas City, 235 Kan. 278, 292, 680 P.2d 877 (1984) (finding no

immunity for negligence allegations against a fire department that are unrelated to fire

protection operations or activities).

Here, unlike the allegations in Keiswetter and Cansler, no one has accused the

defendants of failing to protect society from Matson. See Keiswetter, 304 Kan. 362;

Cansler, 234 Kan. 554. Rather, Matson alleges that the State and the Warden negligently

supervised, retained, hired, and trained employees who violated his constitutional rights

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causing him damages. Matson does not accuse the State or the Warden of failing to

properly exercise their police protection activities. As the court explained in Jackson,

"[s]hould firemen negligently go to the wrong house and chop a hole in the roof thereof,

we do not believe the city has immunity therefor on the basis the negligent act was a part

of the method of fire protection." 235 Kan. at 292. The defendants failed to show that

Matson's claims of liability relate to the State's police protection activities of housing or

protecting society from dangerous individuals. The police protection exception to liability

under the KTCA does not shield the State or the Warden from liability for Matson's

claims for negligent supervision, retention, hiring, or training of employees causing them

to violate his First Amendment rights to free speech. Defendants have not shown how

ensuring that employees do not violate inmates' First Amendment rights involves the

State's police protection activity.

As an alternative or perhaps in addition to the police protection immunity, the

defendants argued—and the district court agreed—that classifying inmates' security level

and inmate housing decisions are a discretionary function entitling the defendants to

immunity under the KTCA. The discretionary function exception provides immunity

from liability under the KTCA for governmental entities and employees from

"any claim based upon the exercise or performance or the failure to exercise or perform a

discretionary function or duty on the part of a governmental entity or employee, whether

or not the discretion is abused and regardless of the level of discretion involved." K.S.A.

75-6104(a)(5).

Kansas courts look to the nature and quality of the discretion exercised to

determine whether a particular function is considered discretionary. Soto v. City of

Bonner Springs, 291 Kan. 73, 79, 238 P.3d 278 (2010). However, "[t]he mere application

of any judgment is not the hallmark of the exception." 291 Kan. at 79. The discretionary

function exception to liability under the KTCA is inapplicable when there is a "'clearly

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defined mandatory duty or guideline'" arising from agency directives, caselaw, or

statutes. Thomas, 293 Kan. at 235. Rather, "[t]he more a judgment involves the making of

policy[,] the more it is of a 'nature and quality' to be recognized as inappropriate for

judicial review" and thus subject to discretionary function immunity. 293 Kan. at 234

(quoting Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249

Kan. 348, 365, 819 P.2d 587 [1991]). Ministerial activities are less likely to fall within

the discretionary function immunity, and the "expertise, whether educational or

experiential," employed in decision making is relevant to determining whether it is a

discretionary function. 293 Kan. at 234-35.

To determine whether the discretionary function immunity applies to how the

defendants hired, supervised, trained, or retained employees to make inmate transfer or

security level decisions, the court must analyze the nature and quality of the decisions

including the expertise and experience the decisionmakers relied on to make the

decisions. See Williams, 310 Kan. at 795-98. Although inmate housing decisions have

been addressed in habeas corpus actions, appellate courts have not addressed whether the

decision to house an inmate at a particular security level or specific facility is a

discretionary function under the KTCA. See Foster v. Maynard, 222 Kan. 506, 507-08,

565 P.2d 285 (1977) (in a habeas corpus claim it is "an administrative classification

decision made in the day-to-day operation and management of a penitentiary" to decide

where to house an inmate); Lynn v. Simmons, 32 Kan. App. 2d 974, 981, 95 P.3d 99

(2003) (finding no protected liberty interest to remain at a particular Kansas prison in a

habeas corpus claim alleging retaliatory transfer). Determining whether the discretionary

function immunity applies requires the court to make a fact-specific analysis of each case.

See, e.g., Williams, 310 Kan. at 798 ("[T]he question of whether discretionary function

immunity arises is highly contextual.").

Under the KTCA liability is the rule and immunity is an exception; thus, the

"governmental entity bears the burden to establish immunity under the exceptions of the

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Kansas Tort Claims Act." Soto, 291 Kan. 73, Syl. ¶ 5. In deciding a motion to dismiss,

the court looks only to the pleadings to determine whether the allegedly negligent

behavior violating the KTCA constitutes a discretionary function. See Keiswetter, 304

Kan. at 367-68 (trial courts considering motions to dismiss are limited to a review of the

pleadings). The defendants failed to present evidence from the pleadings demonstrating

the discretionary, nonmandatory nature of the objectionable conduct. Nor did the

defendants provide information about the expertise or experience necessary. The Kansas

Supreme Court has explained that it is "unwilling to hold that any exercise of

discretion—no matter how minute by however low level an employee—inevitably means

that" discretionary function immunity exists. Williams, 310 Kan. at 798. The facts

asserted in Matson's petition and the district court's findings of fact in its order dismissing

Matson's petition do not demonstrate that the governmental entity's decision to transfer

Matson—or the hiring, training, retention, or supervision of its employees who decided to

transfer Matson—was an exercise of discretion as to be "'of the nature and quality which

the legislature intended to put beyond judicial review.'" See 310 Kan. at 798 (quoting

Bolyard v. Kansas Dept. of SRS, 259 Kan. 447, 452, 912 P.2d 729 [1996]).

Additionally, the discretionary function immunity does not protect decisions that

violate the government entity's legal duty. See, e.g., Barrett v. U.S.D. No. 259, 272 Kan.

250, 263, 32 P.3d 1156 (2001). "[T]he discretionary function exception is not applicable

in those situations where a legal duty exists, either by case law or by statute, which the

government agency must follow." Barrett, 272 Kan. at 263. Likewise, the discretionary

function exception "provides a defense against only ordinary negligence and does not

apply to allegations of willful, gross, or wanton negligence." Barrett, 272 Kan. at 264.

This means that the exception does not provide immunity from a "patently unreasonable

or plainly wrongful course of conduct" that violates legal duties. See Estate of Randolph

v. City of Wichita, 57 Kan. App. 2d 686, 699, 459 P.3d 802 (2020). Matson has alleged

that defendants retaliatorily transferred him the day after he filed a grievance—which is a

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constitutionally protected activity. Defendants cannot use the discretionary function

exception to avoid liability for intentionally violating an inmate's constitutional rights.

Presumably the defendants have many defenses to Matson's claims, despite the

suspect timing, demonstrating that they did not violate his constitutionally protected

rights. However, at this stage in the proceedings that information is unavailable to this

court and "[d]ismissal is justified only when the allegations in the petition clearly

demonstrate plaintiff does not have a claim." Halley v. Barnabe, 271 Kan. 652, 656, 24

P.3d 140 (2001). When reviewing the district court's decision to grant a motion to

dismiss, this court "will assume as true the well-pled facts and any inferences reasonably

drawn from them" and "[i]f those facts and inferences state any claim upon which relief

can be granted, dismissal is improper." Williams, 310 Kan. at 784. As the party carrying

the burden to demonstrate an exception to liability immunizes the defendants from

Matson's claims, the defendants were required to show that the pleadings demonstrated

that the discretionary function exception immunized its actions. The defendants' motion

to dismiss states that "[i]nmate classification, billeting and transfers are discretionary

decision[s] per the [Hopkins v. State, 237 Kan. 601, 610, 702 P.2d 311 (1985)]

definition." The motion to dismiss lacks any factual support for this legal conclusion.

Moreover, the discretionary function exception does not immunize the defendants from

liability for conduct that violates a legal duty.

The defendants failed to meet their burden at this early stage to demonstrate that

the discretionary function exception shields them from liability for Matson's claim under

the KTCA.

CONCLUSION

The district court erred in finding Matson's response to defendants' motion to

dismiss untimely and the court should have considered his arguments therein. The district

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court also erred in dismissing Matson's claims because (1) the defendants failed to show

that the police protection exception to liability under the KTCA applies to Matson's

KTCA claim; (2) there was insufficient evidence to demonstrate that the discretionary

function exception provided immunity for Matson's KTCA claim; and (3) the police

protection and discretionary authority exceptions to immunity under the KTCA do not

provide immunity from liability for Matson's § 1983 claim. The district court's dismissal

is reversed and remanded.

On remand, Maston's KTCA claims must be reinstated for further proceedings,

and the district should consider Matson's response to the motion to dismiss to determine

whether the defendants were immune from liability in his federal § 1983 claim.

Reversed and remanded with directions.

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