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.

Vann v. Ash

United States District Court, D. Kansas

February 20, 2019

DURAYL TYREE VANN, Plaintiff,
v.
DONALD ASH, ET AL., Defendants.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON CHIEF UNITED STATES DISTRICT JUDGE.

         Before the Court is Plaintiff Durayl Tyree Vann's Motion for Reconsideration (Doc. 53), and Motion for Copies (Doc. 55). The Court has considered the motions, along with Plaintiff's supplemental filing (Doc. 54), and is prepared to rule. As described more fully below, the Court denies Plaintiff's motions.

         I. Motion for Reconsideration

         Plaintiff is a prisoner who filed this action pro se on August 3, 2015, against several prison officials at the Wyandotte County Detention Facility in their individual and official capacities. He alleged claims of excessive force, denial of his right to practice religion, lack of due process, and retaliation. Several defendants were dismissed on April 7, 2015. On July 22, 2016, the remaining defendants moved to dismiss on the basis that Plaintiff failed to administratively exhaust his claims, and otherwise failed to state a claim upon which relief may be granted.

         Plaintiff sought several extensions of time to respond to the motion to dismiss; the Court granted each request. He also submitted several changes of address while the motion was pending. But each time Plaintiff inquired about the case and submitted a change of address notice, this Court ensured that a copy of the motion, and of any court orders extending his time to respond, were promptly sent to his new address.[1] Finally, after Plaintiff's extended response time of October 21, 2016 elapsed, this Court ruled on the motion. On November 14, 2016- more than two years ago-the Court granted the remaining Defendants' motion to dismiss without prejudice for failure to respond. The Court also explained that the motion was properly granted because it appeared that Plaintiff failed to exhaust his administrative remedies. Judgment was entered on November 15, 2016.

         Now, Plaintiff seeks reconsideration of the dismissal order, stating that new instances of excessive force have occurred since Judgment was entered, and challenging the Court's alternative ruling that he failed to exhaust his administrative remedies. He asks the Court to reopen his case and consider the arguments in his filing that the case should not have been dismissed for failure to exhaust.

         Under D. Kan. Rule 7.3(a), a party seeking reconsideration of a dispositive order must file a motion under either Fed.R.Civ.P. 59(e), or 60. This motion was filed more than 28 days of the Order dismissing his claims, so the Court will construe it as a motion for relief from judgment under Rule 60. Because Plaintiff proceeds pro se, the Court is mindful that it must construe his pleadings liberally and apply a less stringent standard than that which is applicable to attorneys.[2] The Court therefore liberally construes Plaintiff's motion as a motion under Fed.R.Civ.P. 60(b), which provides that the Court may relieve a party from a final judgment for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.[3]

         Such a motion does not permit a losing party to rehash arguments previously addressed or to present new legal theories or ...


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.