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Leiser v. Moore

United States District Court, D. Kansas

September 15, 2017

JOSEPH W. LEISER, Plaintiff,
v.
SHANNON MOORE and RANDY ROGERS, Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         Plaintiff Joseph W. Leiser filed this action pro se[1] in the District Court of Coffey County, Kansas. Defendants Shannon Moore and Randy Rogers removed the case to federal court. Doc. 1. This matter comes before the court on defendants' Motion for Judgment on the Pleadings. Doc. 21. For reasons explained below, the court concludes that plaintiff's federal claims fail to state a claim for relief. The court thus dismisses plaintiff's federal claims under Fed.R.Civ.P. 12(c). The court declines to exercise supplemental jurisdiction over plaintiff's state law claims. So, the court remands the case to the District Court of Coffey County, Kansas.

         I. Defendants' Motion to Strike and Plaintiff's “Motion for Judicial Pardon”

         Before turning to defendants' Motion for Judgment on the Pleadings, the court first addresses two other pending motions-one filed by plaintiff and the other filed by defendants. Defendants have filed a Motion to Strike Plaintiff's Response to Defendants' Motion for Judgement on the Pleadings. Doc. 25. Defendants assert that the court should strike plaintiff's response because it is untimely, redundant, and immaterial. Doc. 25 at 2. Indeed, plaintiff's response was untimely-he served it three days past the deadline for responding.

         Defendants filed their Motion for Judgment on the Pleadings on March 17, 2017. Doc. 21. Under our court's local rules, plaintiff had 21 days to file a response to that Motion. See D. Kan. Rule 6.1(d)(2) (“Responses to . . . motions for judgment on the pleadings must be filed and served within 21 days.”). So, plaintiff's response was due by April 11, 2017. Plaintiff's response time was extended by three additional days under Fed.R.Civ.P. 6(d), because defendants served their motion by mail. See Doc. 21 at 2 (stating in the certificate of service that defendants served plaintiff by “first-class mail, postage prepaid” to plaintiff's address at the Winfield Correctional Facility). So, with these three additional days, plaintiff's response was due on April 14. But, plaintiff did not serve his response until April 17. See Doc. 23 at 5 (certificate of service).

         In response to defendants' Motion to Strike, plaintiff has filed a “Motion for Judicial Pardon for Late Filing.” Doc. 26. This motion explains why plaintiff was unable to file his response in a timely fashion. It also asks the court “to excuse the late filing due to circumstances out of his control.” Id. at 1. The court thus construes plaintiff's “Motion for Judicial Pardon for Late Filing” as a motion for leave to file his response out of time.

         Plaintiff asserts that on March 24, 2017, prison officials transferred him without notice to the El Dorado Correctional Facility (“EDCF”). Plaintiff states that he initially was placed in maximum custody with no library time. But, on April 5, 2017, plaintiff was moved to “low medium custody.” Doc. 26 at 1. Plaintiff says he received defendants' Motion for Judgment on the Pleadings on April 1, 2017, but that he was unable to use the library from April 3 to April 13, after a facility-wide lockdown following a violent stabbing in the prison. Plaintiff asserts that he was unable to write his response until April 14, 2017. He also asserts that April 17, 2017, was the first time that he was able to “e-file” his response with the court. Id.

         Our local rules provide that a party “who fails to file a responsive brief or memorandum within the time specified in D. Kan. Rule 6.1(d) waives the right to later file such brief or memorandum” “[a]bsent a showing of excusable neglect[.]” D. Kan. Rule 7.4(b). Excusable neglect “is a somewhat elastic concept and is not limited strictly to omissions caused by circumstances beyond the control of the movant.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. L.P., 507 U.S. 380, 392 (1993) (citations and internal quotation marks omitted). But, a party's “inadvertence, ignorance of the rules, or mistakes concerning the rules do not usually constitute ‘excusable' neglect.” Id. The determination of whether neglect is excusable “is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission.” Id. at 395. The factors to consider when making this determination include “the danger of prejudice to the [opposing party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Id.

         After considering the relevant factors, the court exercises its discretion to grant plaintiff leave to file his response out of time. The length of delay here is slight. Plaintiff filed his response three days past the deadline. His late filing has had little to no effect on the judicial proceedings because this action is in its early stages. Circumstances outside plaintiff's control appear to have caused the delay-he was transferred to a new prison facility without notice, and he was unable to access the prison library to prepare his response until the day before the response was due. Plaintiff seems to have acted in good faith, and nothing suggests that allowing plaintiff to file a late response would prejudice defendants. These factors favor a finding of excusable neglect, so the court grants plaintiff's request to file his response out of time. The court also denies defendants' Motion to Strike Plaintiff's Response on the basis that it is untimely.

         Defendants also assert that the court should strike plaintiff's response because it contains redundant, immaterial, impertinent, or scandalous matter. Federal Rule of Civil Procedure 12(f) provides that “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). But, courts disfavor striking pleadings and “any doubt as to the utility of the material to be stricken should be resolved against the motion to strike.” Landrith v. Gariglietti, No. 11-2465-KHV, 2012 WL 171339, at *1 (D. Kan. Jan. 19, 2012), aff'd, 505 F. App'x 701 (10th Cir. 2012) (citations omitted).

         Defendants argue that plaintiff's response “contains no factual assertions or relevant case law controverting any of defendants' contentions or arguments.” Doc. 25 at 3. Although plaintiff fails to address all of defendants' arguments in their Motion for Judgment on the Pleadings, plaintiff responds to others, asserting that he has stated a claim for relief under federal and state law. The court resolves any doubts about the utility of plaintiff's response against the motion to strike and concludes that plaintiff's failure to address all the issues raised in defendants' motion does not render his pleading “redundant, immaterial, impertinent, or scandalous.” The court also recognizes that plaintiff has filed his response pro se. So, the court must construe his pleadings liberally. Hall, 935 F.2d at 1110. For these reasons, the court denies defendants' Motion to Strike.

         II. Motion for Judgment on the Pleadings

         The court now turns to defendants' Motion for Judgment on the Pleadings.

         A. Factual Background

         Plaintiff's Petition alleges the following facts. The court accepts them as true and views them in the light most favorable to plaintiff. Ramirez v. Dep't of Corr., 222 F.3d 1238, 1240 (10th Cir. 2000).

         On May 26, 2014, plaintiff was incarcerated in the Jefferson County Detention Center in Mt. Vernon, Illinois. Plaintiff was awaiting extradition to Coffey County, Kansas. Before extradition, Shannon Moore, a Jail Administrator employed by Coffey County, asked the Jefferson County Detention Center to conduct medical tests on plaintiff. Ms. Moore commissioned two medical examinations-a chest x-ray and CT scan-to determine if plaintiff sustained injury when United States Marshals ...


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