United States District Court, D. Kansas
SHANTELL D. LEWIS, Plaintiff,
TROY J. CARRELL, Defendant.
MEMORANDUM AND ORDER
DANIEL D. CRABTREE, District Judge.
This matter comes before the Court on defendant's Motion to Reconsider (Doc. 53) seeking partial reconsideration of the Court's Memorandum Opinion and Order granting in part and denying in part defendant's Motion for Summary Judgment (Doc. 51). After considering the arguments presented by defendant, the Court denies the Motion to Reconsider.
Plaintiff brings this lawsuit pro se against Special Security Team Officer Troy J. Carrell asserting a claim under 42 U.S.C. § 1983 for violation of his federal constitutional rights while housed as an inmate at the Kansas Department of Corrections' El Dorado Correctional Facility.
On August 8, 2013, defendant filed a Motion for Summary Judgment seeking dismissal of this lawsuit because plaintiff failed to exhaust all available administrative remedies, as the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a) requires. On September 10, 2014, the Court entered a Memorandum Opinion and Order granting in part and denying in part defendant's summary judgment motion (Doc. 51; hereinafter the "September 10, 2014 Order"). As explained in the September 10, 2014 Order, the Court granted summary judgment against any personal injury claim asserted by plaintiff because plaintiff had failed to exhaust his administrative remedies by filing the personal injury claim required by Kan. Admin. Regs. § 44-16-104a. ( Id. at 21) The Court, however, denied summary judgment as it applied to plaintiff's § 1983 claim (in which plaintiff asserts that defendant violated plaintiff's constitutional rights) because a genuine issue of fact existed whether plaintiff had satisfied the administrative exhaustion requirements under Kan. Admin. Regs. § 44-15-101 before filing his lawsuit asserting the § 1983 claim. ( Id. at 20)
Defendant now asks the Court to reconsider part of the September 10, 2014 Order. Specifically, defendant seeks reconsideration of the Court's holding that plaintiff may proceed with his § 1983 claim despite failing to exhaust administrative remedies for a personal injury claim under Kan. Admin. Regs. § 44-16-104a. Defendant argues that because the PLRA requires plaintiff to exhaust all available administrative remedies, his failure to exhaust administrative remedies under Kan. Admin. Regs. § 44-16-104a bars not only his personal injury claim but also his constitutional claim under § 1983. The Court disagrees for reasons explained below.
II. Legal Standard
Plaintiff seeks reconsideration of the Court's September 10, 2014 Order under Fed.R.Civ.P. 54(b) and D. Kan. Rule 7.3(b). D. Kan. Rule 7.3(b) states that a motion to reconsider "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 to prevent manifest injustice." "A motion to reconsider is appropriate where the court has obviously misapprehended a party's position or the facts or applicable law, or where the party produces new evidence that could not have been obtained through the exercise of due diligence." Comeau v. Rupp, 810 F.Supp. 1172, 1174-75 (D. Kan. 1992) (citations omitted). A party seeking reconsideration may not revisit issues already addressed or assert new arguments or supporting facts that otherwise were available for presentation when the party filed the original motion. Id. (citing Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.), cert. denied, 506 U.S. 828 (1992)). A court has discretion when deciding to grant a motion to reconsider. Hancock v. Okla. City, 857 F.2d 1394, 1395 (10th Cir. 1988); Shannon v. P. Rail Servs., 70 F.Supp.2d 1243, 1251 (D. Kan. 1999) (citing Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997)).
The Court notes that plaintiff has not filed a response to defendant's Motion to Reconsider. Under D. Kan. Rule 7.4(b), if a non-movant fails to file a timely response to a motion, the Court "will consider and decide the motion as an uncontested motion. Ordinarily, the court will grant the motion without further notice." Where, as here, a plaintiff brings a lawsuit pro se, the Court construes his filings liberally and holds them to a less stringent standard than formal pleadings drafted by lawyers, but does not assume the role of the pro se litigant's advocate. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (citation omitted). Also, a plaintiff's pro se status does not excuse him from complying with the rules of the court or facing the consequences of noncompliance. Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994) (citing Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994)). Because plaintiff failed to respond timely to defendant's Motion to Reconsider, the Court may consider and decide defendant's motion as uncontested under D. Kan. Rule 7.4(b). Nevertheless, the Court also has considered defendant's motion on the merits. See Jones v. Corr. Corp. of Am., No. 10-3167-JTM, 2012 WL 3238190, at *3 (D. Kan. Aug. 7, 2012) ("Even while acknowledging its authority to grant uncontested motions pursuant to D. Kan. R. 7.4, a court may evaluate the merits of a motion."). After considering the arguments presented in defendant's motion, the Court concludes that it did not err in its September 10, 2014 Order and thus denies defendant's Motion to Reconsider.
Although the allegations in his Complaint are less than clear, the Court has construed plaintiff's Complaint to assert a § 1983 claim for violating plaintiff's Eighth Amendment rights based on injuries plaintiff sustained when defendant allegedly assaulted him by squeezing his genitals during a pat-down search. Before bringing suit on this claim, the PRLA mandates plaintiff to exhaust "[a]ll available' remedies." Porter v. Nussle, 534 U.S. 516, 524 (2002) (citation omitted). Specifically, the PLRA requires: "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a).
Defendant argues here that regardless of whether plaintiff asserts a federal claim under § 1983 or a state law claim for personal injury, the PRLA requires plaintiff to exhaust administrative remedies under Article 16 of chapter 44 of the Kansas Administrative Regulations before bringing suit. Because plaintiff failed to exhaust administrative remedies under Article 16, defendant argues, the Court must dismiss his § 1983 claim. However, as the Court explained in its September 10, 2014 Order, there are two distinct avenues of administrative exhaustion established in Kansas law.
The first avenue is found in the regulations codified by Article 15 of chapter 44 of the Kansas Administrative Regulations. These regulations govern inmate grievances covering "a broad range of matters that directly affect the inmate, including" complaints about policies and conditions of imprisonment, actions of employees and other inmates, and incidents occurring within the facility. Kan. Admin. Regs. § 44-15-101a(d)(1)(A)-(B). As the Court previously determined, this regulation applies to a constitutional claim such as the one asserted here, where the conduct complained of stems from "actions by employees" of the prison facility. Id. § 44-15-101a(d)(1)(B). The Court also concluded in its September 10, 2014 Order that genuine issues of fact exist about whether plaintiff exhausted his remedies under Article 15. Defendant does not seek reconsideration of the Court's conclusion that issues of fact exist about plaintiff's exhaustion under Article 15.
The second avenue is governed by the regulations in Article 16 of chapter 44 of the Kansas Administrative Regulations. Kan. Admin. Regs. § 44-16-104a applies to claims for personal injury and provides: "(a) Each inmate claim for personal injury shall be submitted to the [prison] facility and [the] secretary of corrections within 10 calendar days of the claimed personal injury." The Court determined in the September 10, 2014 Order that the summary judgment facts established that plaintiff failed to exhaust ...