United States District Court, D. Kansas
MEMORANDUM AND ORDER
Kathryn H. Vratil United States District Judge.
December 14, 2017, plaintiff - an inmate at United States
Penitentiary in Leavenworth, Kansas - filed suit against the
United States Marshals Service and Ron Miller - a United
States Marshal. Notice Of Removal (Doc. #1) filed
January 4, 2018, ¶ 2. Plaintiff alleged that he had
“surrendered a certified copy of a final judgment to
the defendants, to foreclose the mortgage” on his
person and that he had satisfied his criminal judgment with a
monetary payment. Civil Action Under 28 U.S.C. §
2410 (Doc. #1-1) at 1 (citing 28 U.S.C. § 2410
(causes of action against United States concerning property
on which it has lien)). On January 5, 2018, defendants filed
Defendants' Motion To Dismiss (Doc. #4) for lack
of subject matter jurisdiction or, in the alternative,
failure to state a cognizable claim. Memorandum In
Support Of United States' Motion To Dismiss (Doc.
#5) filed January 5, 2018 at 2. On January 17, 2018,
plaintiff filed a motion, which the Court construed as his
response. See Doc. #7 (motion not
titled). On March 14, 2018, the Court sustained
defendants' motion to dismiss. See Memorandum And
Order (Doc. #17); Judgment In A Civil Case
(Doc. #18) filed March 14, 2018. This matter is before the
Court on plaintiff's Demand For Relief Under FRCVP
[sic] 60(b) (Doc. #20) filed March 28, 2018, and
Mandamus 28 USC [sic] § 1361 (Doc. #25) filed
May 4, 2018. For reasons stated below, the Court overrules
Demand For Relief (Doc. #20)
Court first addresses how to construe plaintiff's motion
seeking relief from judgment. While plaintiff titled his
motion Demand For Relief Under FRCVP [sic] 60(b)
(Doc. #20), a motion's title does not control how the
Court construes it. See Livernois v. Med. Disposables,
Inc., 837 F.2d 1018, 1020 (11th Cir. 1988) (nomenclature
not controlling of interpretation of post-trial motion);
see Aird v. United States, 339 F.Supp.2d 1305, 1307
n.2 (S.D. Ala. 2004) (same). Whether the Court analyzes the
motion under Rule 59(e), Fed. R. Civ. P., or Rule 60(b), Fed.
R. Civ. P., depends on when plaintiff filed the motion.
See Hawkins v. Evans, 64 F.3d 543, 546 (10th Cir.
1995) (time of service controls whether motion challenging
judgment is under 60(b) or 59(e)); see also Van Skiver v.
United States, 952 F.2d 1241, 1243 (10th Cir. 1991)
(same); Helm v. Resolution Trust Corp., 43 F.3d
1163, 1166 (7th Cir. 1995) (same). A Rule 59(e) motion to
alter or amend judgment must be filed within 28 days after
the entry of judgment. Fed.R.Civ.P. 59(e). A Rule 60(b)
motion, on the other hand, “must be made within a
reasonable time, ” and if the motion is brought under
subsections (b)(1), (2) or (3), no more than a year after the
entry of the judgment or order. Fed.R.Civ.P. 60(b).
plaintiff filed his motion within 28 days of entry of
judgment, the Court treats it as a Rule 59(e) motion to alter
or amend the judgment. Hawkins, 64 F.3d at 546.
Under Rule 59(e), a judgment can be altered or amended
because of (1) a change in law; (2) new evidence; and/or (3)
clear error or manifest injustice. See Servants Of The
Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)
(listing Rule 59(e) factors). A Rule 59(e) motion is also
proper when the Court has obviously misapprehended a
party's position or decided issues beyond those
presented. Id.; Anderson v. United Auto
Workers, 738 F.Supp. 441, 442 (D. Kan. 1990). Whether to
grant a motion for reconsideration is committed to the
Court's discretion. See Hancock v. Okla. City,
857 F.2d 1394, 1395 (10th Cir. 1988).
asks the Court to reconsider its order of dismissal and
judgment because he did not receive defendants' motion to
dismiss or memorandum in support of it. Demand For
Relief (Doc. #20) at 1. He asserts that because he did
not have a sufficient opportunity to refute defendants'
arguments, the Court misapprehended his claim and mistakenly
analyzed it as a challenge to his sentence and conviction.
plaintiff's post-judgment insistence, this action sought
his immediate release from prison and thus, challenged his
sentence. In his complaint, plaintiff alleged that he had
“surrendered a certified copy of a final [criminal]
judgment to the defendants, to foreclose the mortgage and
recover the exempt property covered thereby.” Civil
Action Under 28 U.S.C. § 2410 (Doc. #1-1) at 1. Two
documents attached to his complaint identified the
“exempt property” as himself, stating that
defendants should “effect the forthwith release of the
subject of: Tommie Perris Crawford.” See Id.
at 2, 7. Further, even if the Court assumes that plaintiff
did not challenge his conviction or sentence or receive
service of defendants' motion and memorandum, plaintiff
fails to demonstrate how the Court erred in sustaining
defendants' motion to dismiss. The Court dismissed
plaintiff's claim on multiple grounds. Among other
things, the Court held that (1) his argument had no basis in
the law - i.e. he cannot buy his release from
prison; (2) it lacked subject matter jurisdiction; and (3)
due to sovereign immunities, defendants could not be sued in
their official capacity. See Memorandum And Order
(Doc. #17) at 2. Plaintiff's motion for reconsideration
and numerous other filings do not refute these grounds for
dismissal. Thus, the Court overrules plaintiff's
Mandamus (Doc. #25)
4, 2018, plaintiff filed a motion for mandamus to compel the
undersigned judge to “do her ministerial duty and honor
and enter the entitlement order (Doc. 21).”
Mandamus 28 USC § 1361 (Doc. #25). Plaintiff
filed his petition for mandamus under 28 U.S.C. § 1361
which grants district courts jurisdiction over actions
“to compel an officer or employee of the United States
or any agency thereof to perform a duty owed to the
plaintiff.” The Tenth Circuit and other courts have
held that when a plaintiff seeks to compel judicial action,
district courts lack jurisdiction under Section 1361.
Trackwell v. United States Gov't, 472 F.3d 1242,
1243, 1247 (10th Cir. 2007); see also Liberation News
Serv. v. Eastland, 426 F.2d 1379, 1384 (2d Cir. 1970)
(Section 1361 applies only to executive branch); see also
Klayman v. Kollar-Kotelly, 892 F.Supp.2d 261, 264
(D.D.C. 2012). Accordingly, the Court lacks jurisdiction to
decide plaintiff's Mandamus 28 USC § 1361
urge the Court to impose reasonable sanctions on plaintiff
for filing frivolous motions. Defendants' Response To
Crawford's “Motion For Relief”  (Doc.
#22) filed March 28, 2018 at 7; Defendants' Response
To Crawford's “Mandamus”  (Doc. #26)
filed May 9, 2018 at 3. Rule 11(c)(2), Fed. R. Civ. P., sets
forth procedural requirements for parties seeking sanctions.
The moving party must submit the motion for sanctions
separately from other motions or requests; specifically
describe the conduct which allegedly violates Rule 11(b); and
serve the motion on the opposing party. See id. If
the offending party does not withdraw the challenged document
or conduct after 21 days, the moving party may file its
motion for sanctions with the Court. See Id. The
plain language of the rule indicates that this procedure is
mandatory. See Rubio ex re. Z.R. v. Turner Sch. Dist. No.
202, 475 F.Supp.2d 1092, 1101 (D. Kan. 2007). Because
defendants failed to follow this procedure, the Court need
not respond to defendants' requests for sanctions.
IS THEREFORE ORDERED that plaintiff's Demand
For Relief Under FRCVP [sic] 60(b) (Doc. #20) filed
March 28, 2018 is OVERRULED.
IS FURTHER ORDERED that plaintiff's
Mandamus 28 USC [sic] § 1361 (Doc. #25) filed
May 4, 2018 is DISMISSED without prejudice for lack
IS FURTHER ORDERED that pursuant to Rule 60(a), Fed.
R. Civ. P., the Clerk is directed to enter an amended
judgment which dismisses plaintiff's claim set forth in
Civil Action Under 28 U.S.C. ...