United States District Court, D. Kansas
DANNY E. BEAUCLAIR, Plaintiff,
RAY ROBERTS, et al., Defendants.
MEMORANDUM AND ORDER
SAM A. CROW, Senior District Judge.
This pro se civil rights complaint was filed pursuant to 42 U.S.C. § 1983 by a state prison inmate. Mr. Beauclair claims that defendants are denying him access to the courts by refusing to provide free photocopies of legal documents. The court finds that this action is subject to dismissal for failure to state a federal constitutional claim.
PLAINTIFF'S LITIGATION HISTORY
The court takes judicial notice of the appellate court docket in State v. Beauclair, Shawnee Co. Dist.Ct. Case No. 99CR4640, which is also Kan.App. Case No. 91999 that is referred to by plaintiff herein, and other cases filed by Mr. Beauclair for which written opinions are available.
In 2001, Danny Beauclair pled no contest to one count of rape and one count of aggravated criminal sodomy, each of a child under 14 years of age, in exchange for the state dismissing a second count of rape. State v. Beauclair, 130 P.3d 40, 41-42 (Kan. 2006). He was sentenced in 2002, to "concurrent minimum terms of 184 months for the rape charge and 136 months for the aggravated sodomy charge." Id. at 43.
In 2003, Mr. Beauclair filed a Motion to Withdraw Plea. The trial court denied the motion, and Beauclair timely appealed. The Kansas Court of Appeals (KCA) reversed in State v. Beauclair, 116 P.3d 55 (July 29, 2005). However, the State appealed, and the Kansas Supreme Court (KSC) reversed the KCA and affirmed the trial court's denial of Beauclair's motion to withdraw. State v. Beauclair, 130 P.3d 40 (Kan. Mar. 17, 2006). The KSC then remanded in Case No. 91999 to the KCA for consideration of "claims not considered" in the KCA's prior opinion. The KCA considered Beauclair's claims and this time affirmed the lower court's denial of relief. State v. Beauclair, 146 P.3d 709, 2006 WL 3409225 (Kan.App. Nov. 22, 2006). The KSC denied review on March 29, 2007. Id.
Mr. Beauclair challenged his sentence by way of state post-conviction motions. In 2007, he filed a motion to correct illegal sentence and another motion to withdraw his plea. Both were summarily denied by the trial court. See State v. Beauclair, 223 P.3d 837 (Kan.App. Feb. 12, 2010). He timely appealed, the KCA affirmed, and the KSC denied review on June 2, 2010. Id.
In 2007 and 2010, Mr. Beauclair also filed habeas petitions in federal court challenging his state convictions that were unsuccessful. See e.g., Beauclair v. Goddard, 2012 WL 763103 (D.Kan. Mar. 6, 2012), COA denied, 530 Fed.Appx. 781 (10th Cir. Mar. 13, 2013).
With respect to civil actions in federal court, Mr. Beauclair has been designated a three-strikes litigant pursuant to 28 U.S.C. § 1915(g). His third strike was assessed in November 2013. Beauclair v. Dowd, Case No. 13-3169-RDR (D.Kan. Nov. 22, 2013), aff'd, App.Case No. 14-3036 (October 23, 2014). After being notified that he had accumulated his third strike, Mr. Beauclair proceeded to file six new civil actions in this court. When the Tenth Circuit affirmed the judgment of the district court in Beauclair v. DowdI, it imposed an additional strike upon Mr. Beauclair "for his wholly meritless claim in district court and his frivolous appeal." Mr. Beauclair currently has seven civil cases pending in this court alone. In addition, five civil cases previously filed by him in this court have been dismissed.
ALLEGATIONS AND CLAIMS
In this lawsuit, plaintiff names as defendants Ray Roberts, Secretary of Corrections; and James Heimgartner, Warden, El Dorado Correctional Facility-Oswego (OSC). The factual background alleged by plaintiff for this complaint is difficult to follow and contains far more conclusory than factual allegations. Plaintiff alleges the following facts. On November 5, 2013, more than three years after his state post-conviction proceedings were concluded, he filed a "Motion to Recall Mandate" in App.Case No. 91999. This motion was denied on December 12, 2013. He alleges that he had 30 days from the filing of the denial Order in which to appeal by filing a "Petition for Review" in the KSC per Rule 8.03. However, he did not receive the denial order until 19 days after it was filed on "XX-XX-XXXX, in the U.S. Mail." The only subsequent entry on the docket sheet is dated two weeks after the motion was denied: "CERT/REG MAIL RETURNED BY POST OFFICE/Reg Mail Returned-Not at Address" and "Resent Reg Mail 12/26-Beauclair." Plaintiff was "forced to send" his one set of "documents" home to his 71-year old mother to have photocopies made to comply with the copy requirements of Kansas Supreme Court Rule 8.03. On January 24, 2014, his mother mailed the required sets of photocopies to the appellate court by U.S. Mail. Mr. Beauclair mailed his "Petition for Review" to the KSC on an undisclosed date. On January 30, 2014, plaintiff received an envelope from the Clerk "returning his Petition for Review stating they could not file the Petition for Review Briefs." The "Clerk of the Appeals Courts" refused to file his documents because it was "beyond the time limits of Rule 8.03."
Plaintiff claims that he was "not allowed to file his Petition for Review because of defendant(s)' actions and/or inactions" and that defendants violated his rights and caused him actual injury "by refusing to provide photocopies of documents dealing with plaintiff's criminal conviction" by "using IMPP 12-127." He further claims that he was "unable to file his Petition for Review... within the time limits" because he was forced to send it home to have photocopies made, that this delay denied him "access to the court with due process, " and that "defendant's delay" was "for the express purpose of destroying" plaintiff's access. He asserts that defendants violated his "lst Amendment right to access to the courts and/or to the 14th Amendment right with due process of law." He also claims that "IMPP 12-127.II.C(1), (2)(a), (b)(3) is unconstitutional as applied in this case."
Plaintiff seeks a declaration that defendants violated his federal constitutional rights, a preliminary and permanent injunction ordering defendants "to provide plaintiff indigent legal photocopies as needed" to comply with court copy requirements, "compensatory damages in the amount of the cost of the action against each defendant, " "nominal damages in the ...