United States District Court, D. Kansas
DANNY E. BEAUCLAIR, Plaintiff,
CAROL GREEN, Clerk, Kansas Appellate Courts, 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 who are court clerks deliberately "delay(ed) mailing out a Court Order" in violation of state law and thereby caused the untimeliness of his attempted appeal. 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 (Kan.App. Case No. 91999) that is referred to by plaintiff herein (Shawnee Co. D.Ct. Case No. 99CR4640), 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. See 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 at 40. The KSC then remanded in Case No. 91999 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 generally referred to as Mr. Beauclair's direct appeal, the KSC denied his Petition for Review on March 29, 2007. Id. Mr. Beauclair also 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 his Petition for Review in June 2010 (App.Case No. 100161). Id. In 2007 and 2010, Mr. Beauclair also filed unsuccessful habeas petitions in federal court challenging his state convictions. 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. Dowd 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 Carol Green, Clerk, and Jason Oldham, Chief Deputy Clerk, of the Kansas Courts of Appeal. As the factual background for this complaint, Mr. Beauclair alleges the following. On November 5, 2013, he filed a "Motion to Recall Mandate" in Case No. 91999. Therein, he claimed that "the Kansas Court of Appeals made a void judgment' with its ruling (sic) filed on 7-29-2005 and on 11-22-2006" because that Court's rulings were inconsistent with due process under the 14th Amendment and with K.S.A. 22-3210."
On December 12, 2013, the KCA denied plaintiff's motion to recall mandate. Plaintiff had 14 days from this decision to file a "motion per Rule 7.05." On December 26, 2013, defendant Green and/or Oldham mailed a copy of the decision to Beauclair. Defendants' failure to mail the decision on the date of filing violated Rule 7.03. Defendants deliberately delayed mailing the decision for 14 days, making it impossible for plaintiff to file a timely Rule 7.05 motion. Defendants did not have discretion to delay mailing the decision "to keep plaintiff from filing his motion to reconsider."
Plaintiff received the decision on December 31, 2013. On January 3, 2014, he mailed a "Motion for Rehearing or Modification" to the KCA. His current mailing address was on that motion. On January 15, 2014, he received an envelope from the Clerk's office post-marked December 26, 2013. Inside was a letter from Oldham dated January 10, 2014, stating that he had received Beauclair's motion for rehearing, but it could not be filed and was returned because it must have been filed no later than December 26, 2013, per Rule 7.05.
On January 16, 2014, plaintiff mailed a "Motion to File out of Time due to Manifest Injustice" and another "Motion for Rehearing or Modification" to the KCA for filing in Case No. 91999, both with his current address. On January 30, 2014, he received an envelope from Clerk Green with the statement that she had received his motions but they could not be filed and were returned. Defendants refused to file plaintiff's motions even though they had "caused any delay by not following Rule 7.03." "Carol Green did not address why they waited" 14 days to mail out the denial Order. Plaintiff "suffered actual injury" by being "denied to file a timely motion under Kansas Supreme Court Rule 7.03 and Rule 7.05."
Plaintiff claims that defendants acted with deliberate indifference and/or reckless disregard to frustrate and impede his rights, "cast stumbling blocks in his path" to keep him from filing a Rule 7.05 motion, and delayed mailing the decision for the express purpose of destroying his right of access "with due process and/or equal protection." Plaintiff also claims that defendants "sabotaged" his "motions by the time delays" to "cover the errors of the State Courts."
Plaintiff asserts that defendants violated his federal constitutional rights "when they violated Kansas Supreme Court Rule 7.03." He further asserts that by "not timely mailing out that Order so he could timely file a motion for reconsideration" defendants "violated (his) access to the courts' and/or freedom of speech' under the lst Amendment, denied (his) due process of law' and/or equal protection of law' under the 14th Amendment, " and acted in an arbitrary and capricious manner.
Plaintiff seeks relief in the form of a declaration that defendants violated his constitutional rights, as well as a "preliminary and permanent injunction ordering defendants... to follow Rule 7.03 and mail out the court's order" to the parties "the same day the order was filed." In addition, plaintiff seeks compensatory damages "in the amount of cost of this action against each defendant; nominal damages "in the maximum amount allowed by law, " and punitive damages in the amount of $50, 000.00 against each defendant.
Because Mr. Beauclair is a prisoner suing state officials, the court is required by statute to screen his 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). "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48-49 (1988)(citations omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). A court liberally construes a pro se complaint and applies "less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007). In addition, the court accepts all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006). On the other hand, "when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, " dismissal is appropriate. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007). A pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The complaint must offer "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Twombly, 550 ...