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Thomas v. Blake

United States District Court, D. Kansas

April 15, 2019

TONY B. THOMAS, Plaintiff,
C. BLAKE, ET AL., Defendant.



         This matter is before the Court on Plaintiff's Motion for Reconsideration (Doc. 94) and Motion for Relief from Judgment or Order (Doc. 98). Plaintiff Tony B. Thomas, proceeding pro se, seeks reconsideration of the Court's February 14, 2018 order dismissing his claims against Defendants C. Blake and J. Westbrooks (“Defendants”) pursuant to Fed.R.Civ.P. 41(b) for failure to prosecute and entering judgment in the case.[1] Plaintiff also moves for a preliminary injunction (Doc. 92).[2] Defendants have not responded to Plaintiff's motions. For the following reasons, the Court denies Plaintiff's motions.

         I. Background

         Plaintiff brought this action under 42 U.S.C. § 1983 against Defendants and Aaron T. Roberts, Allan Fogleman, and Michael A. Russell, alleging Fourth, Eighth, and Fourteenth Amendment violations. On September 23, 2016, the Court dismissed Fogleman, Roberts, and Russel because Plaintiff failed to show good cause in writing as to why his claims should not be dismissed for failure to state a claim.[3]

         Magistrate Judge K. Gary Sebelius appointed counsel to represent Plaintiff on October 3, 2017.[4] The order appointing counsel was mailed to Plaintiff's last address of record: the Wyandotte County Detention Center, 710 North 7th Street, Kansas City, KS 66101.[5] It was returned as undeliverable, with a note that Plaintiff had left the facility.[6] Plaintiff's appointed counsel was unable to contact him and filed a motion to withdraw on January 4, 2018;[7]according to appointed counsel, the Kansas Adult Supervised Population Electronic Repository stated that Plaintiff was to be supervised by Community Corrections of the Unified Government of Wyandotte County/Kansas City, Kansas and had been on “absconder” status since November 16, 2017.[8] Judge Sebelius granted counsel's motion on January 16, 2018.[9]

         On January 16, 2018, Judge Sebelius also ordered Plaintiff to show cause by February 13, 2018 as to why his case should not be dismissed against Defendants for failure to prosecute.[10]Copies of the order were sent by regular and certified mail to Plaintiff's last address of record, namely, the Wyandotte County Detention Center.[11]

         On January 22, 2018, Judge Sebelius' order to show cause mailings were returned to sender, with a note that Plaintiff had left the facility.[12] Plaintiff did not respond to the show cause order, and on February 14, 2018, the Court dismissed Defendants for failure to prosecute pursuant to Fed.R.Civ.P. 41(b) and entered judgment dismissing the case with prejudice;[13] at the time, Plaintiff had not personally made filings in his case since filing a motion for disclosures on July 31, 2017.[14]

         On October 22, 2018, Plaintiff filed a Change of Address with the Court.[15] On November 15, 2018, Plaintiff filed a Notice of Appeal Out-of-Time as to the dismissal of Defendants; the Tenth Circuit dismissed Plaintiff's appeal as untimely.[16] Subsequently, on March 1, 2019, Plaintiff filed a Motion for Preliminary Injunction, [17] Motion to Appoint Counsel, [18] and the Motion for Reconsideration.[19] On March 4, 2019, Judge Sebelius denied Plaintiff's Motion to Appoint Counsel.[20] On March 20, 2019, Plaintiff filed his Motion for Relief from Judgment or Order.[21] Defendants did not respond to Plaintiff's motions within fourteen days, as permitted by D. Kan. Rule 6.1(d).

         II. Standard

         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. Plaintiff's Motion for Reconsideration was filed more than twenty-eight days after the order dismissing Plaintiff's claims, so the Court construes it as a motion for relief from judgment under Rule 60 and considers it in conjunction with Plaintiff's Motion for Relief from Judgment.[22]

         Because Plaintiff proceeds pro se, the Court is mindful that it must construe his pleadings liberally and apply a less stringent standard than which is applicable to attorneys.[23] The Court therefore liberally construes Plaintiff's motions under Fed.R.Civ.P. 60(b), which provides that the Court may relieve a party from 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.[24]

         Such a motion does not permit a losing party to rehash arguments previously addressed or to present new legal theories or facts that could have been raised earlier.[25]

         The Court has discretion when granting a motion for relief from an order or judgment under Rule 60(b).[26] Motions under Fed.R.Civ.P. 60(b) must be brought “within a reasonable time.”[27] For the first three reasons, a reasonable time is “no more than a year after the entry of the judgment or order, ”[28] and the fourth and fifth reasons for relieving a party from judgment are inapplicable here. Thus, as Plaintiff filed his motion more than one year after judgment was entered, his motion must be considered under Fed.R.Civ.P. 60(b)(6). The Tenth Circuit has described Rule 60(b)(6) as a “grand reservoir of equitable power to do justice in a particular case.”[29] But the rule applies “only in extraordinary circumstances and only when necessary to accomplish justice.”[30] Such extraordinary circumstances have been found to apply where “after entry of judgment, events not contemplated by the moving party render enforcement of the judgment inequitable.”[31]

         III. Discussion

         Plaintiff's primary argument for relief from judgment is that he attempted to notify the Court of his change of address, but these notices were not delivered to the Court, and therefore he never received or responded to Judge Sebelius' January 16, 2018 order to show cause. While Plaintiff asserts ground for relief from judgment as “evidence not previously available has become available, ”[32] as explained above, the Court must consider Plaintiff's motions under Rule 60(b)(6) and must determine whether his circumstances are so extraordinary as to warrant relief from judgment.

         Plaintiff asserts that he “was denied access to the courts on 8-22-2017 by the postal service or Leavenworth Detention Center Leavenworth, Kansas 66048 or on 2-21-2018 by FCI Englewood 9595 W. Quincy Ave. Littleton, Co 80123 which interfere[d] with litigation in violation[] of [P]laintiff['s] First Amendment constitutional right.”[33] He further explains that on August 22, 2017, he sent a Notice of Change of address to the United States District Court for the District of Kansas, and that on February 21, 2018, he sent another Notice of Change of Address from FCI Englewood.

         Pursuant to D. Kan. Rule 5.1(c)(3), a pro se litigant “must notify the clerk in writing of any change of address or telephone number.” Further, under D. Kan. Rule 5.1(c)(3), “[a]ny notice mailed to the last address of record of an attorney or pro se party is sufficient notice.” The local rule mirrors the rule under the Federal Rules of Civil Procedure that service of a court order is complete upon mailing a copy to the last known address of the person served.[34] Indeed, “[i]t would be unreasonable to ...

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