United States District Court, D. Kansas
ROLAND D. ROSS, Plaintiff,
FNU LNU DIRECTOR, BUTLER COUNTY DETENTION CENTER, et al., Defendants.
MEMORANDUM AND ORDER
Murguia United States District Judge.
plaintiff Roland D. Ross filed this civil rights action,
claiming that defendants, employees of the Butler County
Detention Center, violated his rights to free exercise of
religion and equal treatment under the Constitution and the
Religious Freedom Restoration Act (“RFRA”).
Defendants filed a motion to dismiss (Doc. 15), alleging
plaintiff failed to state a valid claim for relief. The court
granted defendants' motion, and the clerk of court
entered judgment on April 11, 2017. On May 4, 2017, plaintiff
mailed his motion for reconsideration (Doc. 22), and
alternatively moved to amend his pleadings. The court
received plaintiff's filings on May 16, 2017. For the
reasons below, the court denies plaintiff's motions.
Standard of Review
motion for reconsideration is not recognized by the Federal
Rules of Civil Procedure, but may be construed as either a
motion to alter or amend the judgment pursuant to Rule 59(e),
or as a motion seeking relief pursuant to Rule 60(b).
Price v. Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir.
1991). Which rule applies depends on how much time has passed
between the entry of judgment and the filing of the motion.
Id. The granting or denial of a motion to reconsider
is within the court's discretion. Hayes Family Trust
v. State Farm Fire & Cas. Co., 845 F.3d 997, 1004
(10th Cir. 2017)
court will construe a pro se plaintiff's filings
liberally, but will not go beyond the reasonable reading of a
motion to assume the role of advocate. Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A
plaintiff's pro se status does not relieve him from
complying with this court's procedural requirements.
Barnes v. United States, 173 F. App'x 695, 697
(10th Cir. 2006) (citations omitted); see also
Santistevan v. Colo. Sch. of Mines, 150 F. App'x
927, 931 (10th Cir. 2005) (holding that a pro se litigant
must follow the same rules of procedure as other litigants).
motion to reconsider, plaintiff asks the court to alter or
amend the judgment pursuant to Federal Rule of Civil
Procedure 59(e). (Doc. 22, at 1.) Motions to alter or amend
are due within twenty-eight days of entry of judgment, and a
motion received after this window is ordinarily not timely.
Fed.R.Civ.P. 59(e). Because plaintiff is an inmate, the
“prison mailbox rule” applies, and his motion is
deemed filed at the time it was delivered to prison
authorities. Houston v. Lack, 487 U.S. 266, 270
(1988); see Price, 420 F.3d at 1163-64.
Plaintiff's signed motion was executed on May 4, 2017,
fewer than twenty-eight days after the entry of judgment, so
his motion is timely filed with the court.
under Rule 59(e) is only available if a party can show one of
three reasons: (1) there is an intervening change in
controlling law; (2) there is new evidence which was
previously unavailable; or (3) there is a need to correct
clear error or prevent manifest injustice. See
Hayes, 845 F.3d at 1004. A motion to alter or amend
pursuant to Rule 59(e) is appropriate where the “court
has misapprehended the facts, a party's position, or the
controlling law.” Servants of Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000). A party may
reargue positions in a Rule 59(e) motion in order to correct
clear legal error. Hayes, 845 F.3d at 1005.
construed, plaintiff's suggestions that the court made a
“misapprehension” and “clearly lacked any
factual bases to deny [plaintiff] tribunal review” will
be treated as a request for relief from an error of law.
(Doc. 22, at 1.) Without addressing whether plaintiff's
attached documents are new evidence which was previously
unavailable, plaintiff appears to attach these documents in
support of his argument on the issue of administrative
exhaustion. (Id.) This court dismissed
plaintiff's claims under Section 1983 for (1) failure to
adequately allege personal participation by any defendant;
and (2) failure to state a claim. Ross v. FNU LNU Dir.,
Butler Cty. Det. Ctr., No. 16-3133-CM, 2017 WL 1332717,
at *2-4 (D. Kan. Apr. 10, 2017). This court did not dismiss
plaintiff's claims for failure to exhaust administrative
remedies. Id. at *2. A 59(e) motion alleging mistake
on the issue of administrative exhaustion would-as a
result-be moot, so the court will reasonably read
plaintiff's motion as a general request for relief from
an error of law.
noted above, in the underlying order dismissing
plaintiff's claims, this court dismissed all defendants
and claims because plaintiff either (1) failed to
sufficiently allege personal participation by the defendant;
or (2) failed to sufficiently state a claim for relief.
First, defendants FNU LNU Director, Corporal, Captain, and
Chaplain were dismissed for failure to adequately allege
personal participation in plaintiff's claim that he was
denied the right to peaceably assemble. Ross, 2017
WL 1332717, at *2-3. Second, plaintiff's claim for
violation of the right to free exercise of religion was
dismissed for failure to adequately allege that his
sincerely-held religious beliefs were substantially burdened
by defendants' delay in accommodating plaintiff's
religion. Id. at *3. Third, plaintiff's claim
for freedom to assemble was dismissed for failure to show
that any prison regulation infringing on this freedom was not
“reasonably related to legitimate penological
interests.” O'Lone v. Estate of
Shabazz, 482 U.S. 342, 349 (1987); see
Ross, 2017 WL 1332717, at *3. Finally, plaintiff's
RFRA claims were dismissed because RFRA does not apply to the
defendants. Ross, 2017 WL 1332717, at *3. The court
will review each of these decisions briefly under the Rule
the court made no error in relying on Gallagher v.
Shelton and Lowery v. Edmondson to dismiss
defendants FNU LNU Director, Corporal, Captain, and Chaplain
for lack of personal participation. Id. at *2.
Plaintiff did not mention or make allegations against the
Director, and plaintiff alleged only that the Corporal and
Captain did not timely resolve his grievances. The absence of
allegations cannot maintain an action, so no mistake was made
dismissing the Director. Gallagher states that
“denial of a grievance, by itself without any
connection to the violation of constitutional rights alleged
by plaintiff, does not establish personal participation under
§ 1983.” 587 F.3d at 1069. Because a mere delay in
resolving a grievance does not rise to the level of a denial,
no mistake was made in relying on Gallagher to
dismiss the Corporal and Captain. See Ross, 2017 WL
1332717, at *2. As for the Chaplain, Lowery states
that a plaintiff challenging prison policy must “name
and explain” a defendant's involvement.
528 F. App'x 789, 792 (10th Cir. 2013) (emphasis added).
Plaintiff did not explain the Chaplain's involvement for
his claim that he was denied the right to peaceably assemble,
so the court made no mistake in dismissing the Chaplain.
the court made no error relying again on Gallagher
to dismiss plaintiff's claim for violation of the right
to free exercise of religion. Ross, 2017 WL 1332717,
at *3. Gallagher involved similarly delayed
responses to requests for meal accommodations for Hanukkah
and fasting, and the court found that these delays were not
sufficient to meet the threshold of “substantially
burden[ing] [the plaintiff's] sincerely-held religious
beliefs, ” despite the plaintiff not receiving
accommodation until after Hanukkah and the days of fasting
had passed. 587 F.3d at 1069-70. This court concluded that
plaintiff's claim failed as a matter of law because his
delay was shorter than in Gallagher, and his request
was resolved before Ramadan ended. Ross, 2017 WL
1332717, at *3. Plaintiff presents no arguments to
distinguish his circumstances from Gallagher, and
the court's conclusions are consistent with the case. The
court made no mistake in dismissing plaintiff's claim for
violation of the right to free exercise of religion.
the court made no error by relying on O'Lone to
dismiss plaintiff's claim for violation of freedom to
assemble. Id. at *3. Plaintiff made and makes no
arguments why any prison regulation that infringed this right
was not “reasonably related to legitimate penological
interests.” See id.; O'Lone, 482
U.S. at 349. The court will not construct these arguments
where plaintiff offers no ...