United States District Court, D. Kansas
KEVIN D. LOGGINS, SR., Plaintiff,
JOSEPH NORWOOD, et al., Defendants.
CROW U.S. SENIOR DISTRICT JUDGE.
brings this pro se civil rights action pursuant to
42 U.S.C. § 1983. This matter is before the Court on
Plaintiff's Motion to Change Venue (Doc. 28),
Plaintiff's Motion to Impeach the Judgment of Conviction
for the Charge of Aggravated Sexual Battery in No. 95CR1859
(Doc. 29), Plaintiff's Motion to Consolidate (Doc. 30),
and Defendants' Motion for Extension of Time (Doc. 32).
March 4, 2019, Defendants Joseph Norwood, Shannon Meyer and
Dan Schnurr filed their motion for extension of time, seeking
a 30-day extension of time to answer or otherwise respond to
Plaintiff's Complaint. Defendants have previously
received a clerk's 14-day extension of time, extending
the deadline to March 4, 2019. Defendants state that an
extension is needed due to delays in the receipt of necessary
documents for the filing of a response. Plaintiff has filed
an Objection (Doc. 33), arguing that Defendants did not
comply with the March 4, 2019 deadline to file their answer.
Plaintiff asks the Court to deny the extension of time and to
enter a default judgment.
of the Federal Rules of Civil Procedure provides that
“[w]hen an act may or must be done within a specified
time, the court may, for good cause, extend the time: (A)
with or without motion or notice if the court acts, or if a
request is made, before the original time or its extension
expires.” Fed.R.Civ.P. 6(b)(1)(A). Defendants filed
their motion on March 4, 2019, before the deadline expired.
The Court finds that the extension should be granted for good
cause shown, and a default judgment is not warranted.
has filed a “Motion for Change of Venue” (Doc.
28) asking the Court to transfer this case to the Wichita
division to make transportation of Plaintiff from the prison
to court less burdensome. The Court denies the motion without
prejudice as premature. If Plaintiff's case survives
dispositive motions he may refile his request.
has also filed a “Motion to Impeach the Judgment of
Conviction for the Charge of Aggravated Sexual Battery in No.
95CR1859” (Doc. 29). Plaintiff argues that the judgment
in his state criminal case in Sedgwick County District Court
is void and a “legal nullity” because it was
rendered without subject matter jurisdiction “and in
contradiction to the due process of law clause of the 14th
Amendment of the U.S.C.A.” To the extent Plaintiff
seeks release from imprisonment, such a challenge must be
brought in a habeas action.
§ 1983 action is a proper remedy for a state prisoner
who is making a constitutional challenge to the conditions of
his prison life, but not to the fact or length of his
custody.” Preiser v. Rodriguez, 411 U.S.
475, 499 (1973) (emphasis added). When the legality of a
confinement is challenged so that the remedy would be release
or a speedier release, the case must be filed as a habeas
corpus proceeding rather than under 42 U.S.C. § 1983,
and the plaintiff must comply with the exhaustion of state
court remedies requirement. Heck v. Humphrey, 512
U.S. 477, 482 (1994); see also Montez v. McKinna,
208 F.3d 862, 866 (10th Cir. 2000) (exhaustion of state court
remedies is required by prisoner seeking habeas corpus
relief). “Before a federal court may grant habeas
relief to a state prisoner, the prisoner must exhaust his
remedies in state court. In other words, the state prisoner
must give the state courts an opportunity to act on his
claims before he presents those claims to a federal court in
a habeas petition.” O'Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999); see Woodford v.
Ngo, 548 U.S. 81, 92 (2006); Rose v. Lundy, 455
U.S. 509, 518- 19 (1982). Therefore, any claim seeking
release from imprisonment is not cognizable in a § 1983
Court notes that Plaintiff has previously attempted to bring
similar claims regarding his state court No. 95cr1859 in a
habeas petition before this Court. In Loggins v.
Kansas Dep't of Corr., the Court found that
the action was an attempt by Plaintiff to file a successive
federal habeas corpus petition. No. 11-3106-SAC, Doc. 3 (D.
Kan. June 22, 2011) (citing Gray v. Mullin, 171
Fed.Appx. 741, 743, 745 n. 1 (10th Cir. 2006), cert.
denied 549 U.S. 905 (2006)). The Court took judicial
notice of Loggins v. Hannigan, No. 99-3102-DES, a
prior § 2254 habeas corpus petition filed by Plaintiff
in 1999, challenging his convictions in Case No. 95cr1859.
The Court noted:
That first federal petition was denied on the merits on
September 11, 2001. In addition, petitioner filed a Motion
for Reconsideration of the denial of his first habeas
petition, and that motion was denied on October 5, 2001. He
appealed to the Tenth Circuit Court of Appeals, which denied
a certificate of appealability and dismissed the appeal. In
his motion for reconsideration, Mr. Loggins sought a stay
while he exhausted additional arguments in state court.
However, the district court found, and the Tenth Circuit
cited its finding, that “any issues petitioner seeks to
exhaust are already foreclosed as untimely under 28 U.S.C.
§ 2244(d)(1), and petitioner cannot possibly show that
he exercised due diligence in raising his claims.” The
court finds that the instant application is a second and
successive petition. Woodward v. Williams, 263 F.3d
1135, 1142 (10th Cir. 2001), cert. denied, 535 U.S.
Loggins v. Kansas Dep't of Corr., No.
11-3106-SAC, Doc. 3, at 2-3 (D. Kan. June 22, 2011). The
Court also noted that Plaintiff must obtain authorization
from the appropriate court of appeals before filing a second
or successive petition for writ of habeas corpus.
Id. at 3; see also Loggins v. Kansas Supreme
Court, No. 10-3060-RDR, Doc. 3, at 2 (D. Kan. April 14,
2010) (finding that plaintiff's challenge to his 1996
state court convictions of Aggravated Kidnaping and
Aggravated Sexual Battery are not properly brought in a
petition for writ of mandamus and petition is an improper
attempt to file a second and successive habeas petition).
Plaintiff's request to set aside his criminal conviction
is not cognizable in this § 1983 action and
Plaintiff's motion is denied.
filed a Motion to Consolidate (Doc. 30), asking the Court to
consolidate this case with No. 18-3254. The Court previously
denied Plaintiff's motion to consolidate at Doc. 16. For
the same reasons set forth in the order denying his previous
motion to consolidate, the Court denies his current request.
See Order at Doc. 19.
IS THEREFORE ORDERED BY THE COURT that
Defendants' Motion for Extension of Time (Doc. 32) is
IS FURTHER ORDERED that Defendants Joseph Norwood,
Shannon Meyer and Dan Schnurr shall answer or otherwise
respond to Plaintiff's Complaint by April 3,
IS FURTHER ORDERED that Plaintiff's Motion to
Change Venue (Doc. 28) ...