United States District Court, D. Kansas
WILLIAM R. HOLT, Plaintiff,
JOE NORWOOD, et al., Defendants.
MEMORANDUM AND ORDER
CROW, U.S. SENIOR DISTRICT JUDGE
a state prisoner appearing pro se and in forma pauperis,
filed this civil rights complaint pursuant to 42 U.S.C.
§ 1983. 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).
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 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.
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.
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.
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).
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); a Motion for
Leave to Add Documentary Evidence to the Record (Doc. 23); a
Response (Doc. 24) and Motion to Appoint Counsel (Doc.
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
Motion to Amend Motion for Preliminary
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.
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.)
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.)
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).
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.) 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 ...