Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Holt v. Norwood

United States District Court, D. Kansas

February 1, 2019

WILLIAM R. HOLT, Plaintiff,
v.
JOE NORWOOD, et al., Defendants.

          MEMORANDUM AND ORDER

          SAM A. CROW, U.S. SENIOR DISTRICT JUDGE

         Plaintiff, a state prisoner appearing pro se and in forma pauperis, filed this civil rights complaint pursuant to 42 U.S.C. § 1983.[1] Plaintiff is an inmate at the El Dorado Correctional Facility-Central in El Dorado, Kansas (“EDCF”). This matter is before the Court on Plaintiff's Motion for Preliminary Injunction/TRO (Doc. 3); Motion to Amend Motion for Preliminary Injunction/TRO (Doc. 22); Motion for Leave to Add Documentary Evidence to Record (Doc. 23); and Motion to Appoint Counsel (Doc. 25).

         I. Nature of the Case

          Plaintiff alleges in his Complaint (Doc. 1) that he was notified on August 13, 2018, that he had a hold or warrant in Clay County, Missouri, Warrant No. 16-CYARW-817, No. 16-CY-CR06976. On August 14, 2018, Plaintiff gave Ms. Gadberry, a mental health provider, a Form-9 to give to Records, requesting that his 180-day writ be filed in Clay County, Missouri, to invoke his speedy trial rights. On August 15, 2018, UTS Fuoss[2] returned the form to Plaintiff, asserting that because his release date was December 3, 2018-before the expiration of the 180-days- Records was not allowing him to file the writ. Plaintiff alleges that UTM Randolph, the Chief Officer of B Cellhouse, refused to order Fuoss or the Records Clerk to file Plaintiff's 180-day writ, violating Plaintiff's right to a speedy trial, equal protection, and due process. Plaintiff alleges that he is being denied equal protection because other inmates are receiving assistance from the staff counselor while he is being denied the same assistance. Plaintiff also alleges that the failure to file his 180-day writ denied him access to the courts, and that staff provided the incorrect mailing address for the Clay County District Court. Plaintiff alleges that he will no longer receive a fair and speedy trial in his Clay County, Missouri case.

         Plaintiff alleges that M. Bos, Classification Administrator at EDCF, allowed Fuoss and the Records Clerk to remove Plaintiff's Form-9 from his grievance and refused to notify Missouri that Plaintiff requested his speedy trial on August 15, 2018. Plaintiff alleges that Defendants intentionally delayed the grievance response and that Defendant Bos responded that Plaintiff had failed to request his 180-day writ. On October 22, 2018, UTM Randolph provided Plaintiff with a copy of his appealed grievance to the Secretary of Corrections, with a sticky note attached that states “we are going to let him submit his 180 day writ. See if he will sign off. If not return to me.” (Doc. 1-1, at 6.) Defendant Randolph asked Plaintiff to refile his 180-day writ showing a date of October 22, 2018. Plaintiff asked Randolph to correct the response given by Bos on October 26, 2018, as Randolph knew that the Form-9 was attached to the grievance when filed, but was removed by him or Fuoss prior to forwarding it to the Warden. Randolph refused to take corrective action and made numerous threats to Plaintiff.

         Plaintiff also alleges that Defendants Jane and John Doe-the Clay County, Missouri Clerk and Judge-refused to order the appointment of legal counsel. Plaintiff names as Defendants: Joe Norwood, Secretary of Correction; UTM Randolph; John Doe, Clay County District Court Judge; Jane Doe, Clay County District Court Clerk; M. Bos, Classification Administrator; Paul Snyder, EDCF Warden; and A. Fuoss, Unit Team. Plaintiff's request for relief seeks an order providing for an August 14, 2018 speedy trial date; a temporary restraining order enjoining Plaintiff's extradition to Missouri; and an order appointing counsel.

         On December 21, 2018, the Court entered a Memorandum and Order (Doc. 13), granting Plaintiff until January 7, 2019, in which to show good cause as to why Defendants Jane and John Doe should not be dismissed for lack of personal jurisdiction. The Court also ordered Defendants to respond to Plaintiff's motion for preliminary injunction and tro at Doc. 3. Defendants have filed their Response (Doc. 17).

         On January 9, 2019, the Court entered an Order (Doc. 20-1) denying Plaintiff's motion for leave to file under seal. The Court granted Plaintiff until January 22, 2019, to notify the Court whether he intends to withdraw the proposed sealed documents at Doc. 19, or to file them unsealed. The Court also granted Plaintiff until January 22, 2019, to further respond to the Court's show cause order or to file a reply to Defendants' Response at Doc. 17. In response, Plaintiff has filed a Reply (Doc. 21) and motion to amend motion for preliminary injunction/tro (Doc. 22)[3]; a Motion for Leave to Add Documentary Evidence to the Record (Doc. 23); a Response (Doc. 24) and Motion to Appoint Counsel (Doc. 25)[4]; a Supplement to Reply at Doc. 21 (Doc. 26); a Notice of State of Witness (Doc. 27); and a Supplement to Reply at Doc. 21 (Doc. 28).

         II. Motion to Amend Motion for Preliminary Injunction/TRO

         Plaintiff's motion at Doc. 3 seeks an order: enjoining his extradition to Missouri; appointing counsel; allowing Plaintiff to serve his post-release in Kansas; and determining that his start date for speedy trial purposes in his Clay County, Missouri case is August 14, 2018. Plaintiff alleges that on December 3, 2018, he was escorted to A&D at EDCF where he held his hand on the food pass, requesting his pain medication. Approximately fifteen minutes later Correctional Officers arrived at Plaintiff's cell, told him he violated his post-release, and issued a Disciplinary Report. On December 10, 2018, the Disciplinary Report was dismissed. Plaintiff refused to sign his post-release agreement for fear his extradition will waive his request for a speedy trial. Plaintiff alleges the post-release violation was assessed to intimidate Plaintiff into signing a new 180-day writ and setting a new speedy trial date. Plaintiff alleges that KDOC's refusal to release him violates his Eighth Amendment right to be free from cruel and unusual punishment. (Doc. 9, at 3.) Plaintiff alleges that he is a protective custody inmate and Fuoss is threatening to release Plaintiff to general population which would place Plaintiff in danger.

         Defendants filed a Response (Doc. 15) to the motion for preliminary injunction and tro, arguing that Plaintiff's request for relief is moot. Defendants' response alleges that Plaintiff was scheduled to be released from KDOC custody on December 3, 2018, but Plaintiff refused to sign the post release paperwork required to leave the facility. On the date of his release, Plaintiff's parole was revoked and he was entered back into KDOC custody. Because Plaintiff was technically released on December 3, 2018, all holds placed on him were withdrawn on that day and Plaintiff currently has no holds placed on him and no extradition requests have ever been made for Plaintiff. (Doc. 17, at 3; Doc. 17-1, at 2; Doc. 17-2, at 2.)

         Plaintiff's motion to amend appears to be a proposed order setting a show cause hearing for his amended motion for preliminary injunction and tro. Plaintiff seeks to have Defendants show cause why a preliminary injunction should not be entered: enjoining Defendants from recharging Plaintiff in Clay County, Missouri, and from placing a hold on Plaintiff to face charges in Clay County, Missouri; directing the Clay County Judge and Clerk to dismiss Clay County No. 16CY-CR06876; providing Plaintiff with legal counsel; ordering the release of Plaintiff from his post release violation; ordering Defendants to start his speedy trial date as of August 14, 2018, for his Clay County, Missouri case; ordering that Plaintiff's right to a fair trial has been violated; and ordering the dismissal of Clay County No. 16CY-CR06876. Plaintiff attaches a memorandum of law, arguing that Defendants have been acting in concert to deprive him of his due process and equal protection rights and to deprive him of his release on December 3, 2018. Plaintiff alleges that Defendants failed to notify him that he was on post release by serving him his post release papers. Plaintiff claims that he did not receive a copy of his post release paperwork until December 21, 2018. (Doc. 26-1, at 3.)

         The Court denies Plaintiff's motion for preliminary injunction and tro (Doc. 3) and amended motion (Doc. 22). To obtain a preliminary injunction, the moving party must demonstrate four things: (1) a likelihood of success on the merits; (2) a likelihood that the movant will suffer irreparable harm in the absence of preliminary relief; (3) that the balance of the equities tip in the movant's favor; and (4) that the injunction is in the public interest. Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010). “[A] showing of probable irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction.” Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1260 (10th Cir. 2004).

         Plaintiff alleges that although Defendants claim that the issue is moot because his hold was lifted, he is “still under the threat of extradition for the untried Complaint and Information in Clay County Missouri No. 16CY-CR06876.” (Doc. 23, at 2.)[5] Plaintiff's allegations do not establish that injury is certain and not theoretical, or more than merely feared as liable to occur in the future. “To constitute irreparable harm, an injury must be certain, great, actual and not theoretical.” Heideman v. S. Salt Lake City,348 F.3d 1182, 1189 (10th Cir. 2003) (internal quotation marks omitted). A preliminary injunction is only appropriate “to prevent existing or presently threatening injuries. One will ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.