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Blaurock v. State

United States District Court, D. Kansas

November 18, 2014

STATE OF KANSAS, et al., Defendants.


SAM A. CROW, Senior District Judge.

This pro se civil action was filed pursuant to 42 U.S.C. § 1983 by Mr. Blaurock while he was confined at the Hutchinson Correctional Facility, Hutchinson, Kansas (HCF).[1] Because plaintiff is a prisoner suing government officials, the court was required by federal statute to screen his original complaint. 28 U.S.C. § 1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(B). D.Kan. Rule 9.1 requires that pro se prisoner pleadings be submitted upon court-approved forms. Upon initial review of plaintiff's filings and motions, the court entered an Order requiring plaintiff to submit his "first amended complaint" upon court-approved forms in compliance with court rules.

This matter is before the court upon plaintiff's "Objection to Ruling or Order" (Doc. 12), plaintiff's First Amended Complaint (Doc. 13), and plaintiff's duplicate "Objection to Ruling and Order" (Doc. 14) submitted again later and docketed as his "Response".[2]


Plaintiff inappropriately relies upon Rule 46 of the Federal Rules of Civil Procedure as the legal authority for his "Objection." Rule 46 generally requires objections during trial proceedings to preserve questions for appeal. This motion is not construed as one to alter or amend a judgment under FRCP Rule 59(e) or as a motion for relief from judgment under FRCP Rule 60(b) because no final judgment has been entered in this case. This motion is construed as seeking reconsideration of a non-dispositive order, which is governed by District of Kansas Rule 7.3(b). The legal standards applicable to a Rule 59(e) motion and/or a motion to reconsider a non-dispositive order under D.Kan. Rule 7.3 are essentially identical. A motion seeking reconsideration "must be based on: (1) an intervening change in controlling law, (2) the availability of new evidence, or (3) the need to correct clear error or prevent manifest injustice." D. Kan. Rule 7.3(b); see also Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Relief under Rule 59(e) is "extraordinary and may be granted only in exceptional circumstances." Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1242 (10th Cir. 2006). Rule 59(e) does not permit a losing party to rehash or restate arguments previously addressed or to present supporting facts that could have been included in plaintiff's earlier filings. Servants, 204 F.3d at 1012. The party seeking relief from a judgment bears the burden of demonstrating that he satisfies the prerequisites for such relief. Van Skiver v. U.S., 952 F.2d 1241, 1243-44 (10th Cir. 1991), cert. denied, 506 U.S. 828 (1992).

Mr. Blaurock does not allege an intervening change in the law or present new evidence. Nor does he show a need to correct clear error. Instead, he argues that he has "more than adequately" stated his claims, reargues some of those claims, expresses his objection to the findings and rulings of the court, and complains regarding the screening process and the undersigned judge.[3] The court finds that plaintiff fails to demonstrate the existence of any extraordinary circumstance that would justify alteration of the court's prior rulings.[4]


Because Mr. Blaurock is a prisoner suing government officials, the court is required by federal statute to screen his First Amended Complaint and to dismiss the complaint or any portion thereof that is frivolous, fails to state a claim on which relief may be granted, or seeks relief from a defendant immune from such relief. 28 U.S.C. § 1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(B). Plaintiff's objections to the statutorily-mandated screening process that has applied in federal courts nationwide for 18 years are without factual or legal basis. Local court rule requires that pro se prisoner pleadings be submitted upon court-approved forms, and this too is the practice in most if not all federal courts. These rules are in place for very good reasons. Mr. Blaurock's filings in this case exemplify the necessity for these rules.

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a "short and plain statement of the claim showing that the pleader is entitled to relief...." Mr. Blaurock initiated this action by filing a 34-page pro se civil rights complaint that is not on forms together with a 42-page Brief in Support (Doc. 2), both single-spaced. Next he filed 183 pages of exhibits.[5] He also filed motions containing 38 pages. Plaintiff alleges in his response that he presents 9 or 10 counts. By no stretch of the imagination are 260 pages of initial filings a "short and plain statement" of 10 counts. Thus, the complaint is substantially noncompliant with Rule 8.

As noted, local rules of this court require that the complaint be submitted upon forms, and plaintiff was ordered by this court to submit his complaint upon court-provided forms. Plaintiff objects that the forms lack enough space. The civil rights forms provided by the court permit pages to be attached when space is inadequate for the number of defendants and the number of counts. Furthermore, the complaint forms provide a format that requires a pro se plaintiff to present each claim separately followed by the factual allegations supporting that particular claim. A distinct section is provided for discussion of exhaustion of administrative remedies.

Had Mr. Blaurock utilized the forms and followed the directions for their completion, this court would not be faced with the same morass of often repetitive, irrelevant or conclusory statements regarding myriad claims, factual allegations, exhaustion, and exhibits all jumbled together. It is not the responsibility of the court to parse a running account of an inmate's daily observations and activities over the course of a year or more[6] together with his legal memorandum[7] and a ream of grievances[8] in order to ascertain what claims and supporting facts he may be attempting to present. When a litigant refuses to proceed in the proper manner, as Mr. Blaurock does here, the court has a responsibility to protect its own docket and take action that allows equitable time and fair consideration for all litigants. The time that it would take the court to deconstruct and then reconstruct plaintiff's 260 pages of initial filings is neither his to demand nor the court's to give.

Normally, a pro se litigant is given the opportunity to cure deficiencies in his complaint. However, Mr. Blaurock's refusal to comply with the simple initial order of this court and his own descriptions of the filings he submitted in state courts engender no confidence that he would comply with further detailed orders to cure the numerous deficiencies in his amended complaint. Thus, the court concludes that it would be futile to provide plaintiff with a second opportunity to amend.

Mr. Blaurock was expressly ordered to file his amended complaint "in compliance with court rules" including that it be submitted upon court-approved forms. He made no effort to comply with the court's rules or order. Instead, he submitted a 34-page single-spaced First Amended Complaint that is a duplicate of the original complaint, save for the change of a couple of the 23 defendants. He also prematurely sought reconsideration of court rulings without legal basis. The court finds that plaintiff simply refused to submit his amended complaint upon the court-provided forms and, as a result, the first amended complaint does not comply with the court's prior Order. Accordingly, this action is dismissed for failure to comply with the court's order and rules.


If the court were compelled to carefully screen the allegations on each page of the initial pleadings filed in this case, it would find that the complaint is subject to dismissal pursuant to 28 U.S.C. § 1915A(b)(1) and 42 U.S.C. 1997e(c)(1) for failure to state a claim. Numerous defects are readily apparent from even a cursory examination of plaintiff's filings.[9] Many defendants and claims appear to be improperly joined.[10] Facts are not alleged to show the personal participation of each defendant in every allegedly unconstitutional incident.[11] Facts are not alleged to establish physical or other injury that would entitle plaintiff to the monetary relief he seeks. See 42 U.S.C. § 1997e(e). Plaintiff was informed in his last § 1983 action that "claims for damages against KDOC" and "any state official in their official capacity, are barred by the Eleventh Amendment." Judicial immunity bars plaintiff's claims against Judge McCarville. Plaintiff's main claims may be summarized as: challenges to prison disciplinary proceedings, confiscation of his legal materials, loss of non-legal property, and state court proceedings; as well as denial of access to the courts and retaliation.[12]

Plaintiff's challenges to several separate disciplinary proceedings indicate that the sanctions imposed did not include loss of good time. The minimal due process protections afforded by Wolff v. McDonnell, 418 U.S. 539, 556 (1974) apply only to disciplinary proceedings that result in loss of good time and thus "inevitably affect the duration" of confinement. Sandin v. Conner, 515 U.S. 472, 485-87 (1995). Thus, even if plaintiff's allegations of false charges, lack of notice, denial of witnesses, and insufficient evidence are true, he states no claim. Moreover, plaintiff indicates that the disciplinary charges were eventually dismissed. In addition, it is settled that short term placement in segregation does not implicate due process because such confinement does not impose "an atypical and significant hardship" in relation to the ordinary incidents of prison life. Id. at 485. Thus, plaintiff's two limited stints in segregation do not entitle him to money damages.

Plaintiff's allegations that his legal research materials [13] were confiscated fail to establish that this "taking" was illegal. The confiscation occurred during a pack-up of plaintiff's property as he was being moved out of his cell, and defendant Armstrong wrote "over the limit" as his reason for confiscating the materials.[14] Prison officials may reasonably limit the amount and kinds of legal materials and other property that an inmate can possess in his cell. Plaintiff voices strong disagreement with Armstrong's reason, but his allegation that his materials were in compliance with prison regulations is completely conclusory. Plaintiff's own allegations regarding his papers appear to confirm rather than refute the finding that he had excess materials in his cell. The removal of excess materials from an inmate's cell does not, standing alone, amount to a constitutional violation.

Plaintiff complains regarding procedures and rulings in cases that he litigated in Wyandotte County District Court and Reno County District Court. This court does not sit as a super appeals court with respect to a prison conditions complaint dismissed in state court.[15] Furthermore, challenges to procedures in state post-conviction proceedings present no constitutional claim in federal court.[16]

Plaintiff's allegations made to support his claim of denial of access to the courts are mostly formulaic and conclusory.[17] He repeatedly claims that all his legal materials were confiscated[18] and state court proceedings were impeded as a result. However, nothing in plaintiff's allegations or exhibits establishes that any case filed by him was dismissed as a direct result of his lack of access to particular legal materials or a restriction on his time in the law library. He does not adequately describe or exhibit an order or official letter from a court showing that his cases were dismissed because he was unable to file a specific motion or lacked access to a certain court document or was unable to present a legally researched pleading. There is no indication of dismissal on account of plaintiff's inability to prosecute or to file a timely response. Plaintiff never describes a particular confiscated motion or document and then explains how its absence actually impeded his state court litigation. His specific allegations that he was prevented from filing two or three additional motions, which are not shown to have been either essential or proper, are not sufficient to establish actual injury. His repeated bald allegations that confiscated items were essential are nothing but conclusory statements. Plaintiff also fails to show that the state court cases filed by him and cited throughout his complaint were non-frivolous. His repetitive remarks that the appeal of his criminal conviction was adversely impacted are simply incorrect, since his direct criminal appeal was final in early 2010. See State v. Blaurock, 201 P.3d 728 (Kan.App.), review denied (Kan. Nov. 5, 2009). Finally, the court notes that the volume of materials filed in this case and in plaintiff's cited state court cases "completely undermine" any claim that he has been denied access to the courts. See Lynn v. Anderson-Varella, 257 Fed.Appx. 80, 86 (10th Cir. 2007).

Plaintiff's claims that defendants retaliated against him with false disciplinary reports, cell searches, and intraprison transfers are also formulaic and conclusory.[19] A prisoner claiming retaliation must "allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights." Frazier v. Dubois, 922 F.2d 560, 562 n. 1 (10th Cir. 1990); Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998). In addition, he "must prove that but for' the retaliatory motive, incidents to which he refers, " such as disciplinary actions and transfers, "would not have taken place." Smith v. Maschner, 899 F.2d 940, 949-50 (1990); see also Fogle v. Pierson, 435 F.3d 1252, 1263-64 (10th Cir. 2006). The amended complaint does not allege facts establishing all "three elements of a retaliation claim." Nor does plaintiff demonstrate that the actions of which he complains would not have occurred but for the retaliatory motive of defendants.

The dismissal of this action is without prejudice, which leaves plaintiff free to file a new civil action. However, Mr. Blaurock is cautioned that any new complaint filed by him that fails to comply with court rules or orders or fails to eliminate the numerous deficiencies discussed herein will be subject to dismissal.[20]

IT IS THEREFORE BY THE COURT ORDERED that this action is dismissed, without prejudice, due to plaintiff's refusal to comply with the court's orders and rule.

IT IS FURTHER ORDERED that to the extent plaintiff's objections (Docs. 12, 14) amount to motions for reconsideration, they are denied.


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