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Robertson v. Lee

United States District Court, D. Kansas

July 8, 2019

JOSHUA JAMES ROBERTSON, Plaintiff,
v.
KESHIA LEE, et al., Defendants.

          MEMORANDUM AND ORDER

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

         This matter is a civil rights action filed under 42 U.S.C. § 1983 by a prisoner in state custody. Defendants filed a motion to dismiss, or, in the alternative, for summary judgment, and plaintiff has filed a response. For the reasons that follow, the Court grants the motion for summary judgment.

         Background

         On or about October 26, 2017, officers in the mailroom of the Lansing Correctional Facility (LCF) rejected a letter sent to plaintiff by his mother and marked “Legal Mail.” The return address on the envelope read:

Mother of Joshua James Robertson (John 15:13) Inmate #76205 In Care of [residential address of sender]

         Shortly afterwards, the LCF mailroom received approximately 17 more envelopes from plaintiff's mother marked as legal mail and identifying her as the sender. Each of the envelopes contained copied materials from a book. Defendants Lee, a staff member in the mailroom, and Winkelbauer, the deputy warden, reviewed these materials and determined the multiple mailings were intended to avoid the requirement under Kansas law that books mailed to prisoners be sent from a publisher or vendor.

         The first envelope was returned to the sender marked “Return to Sender” with the stamped notation, “Books, Calendars, Newspapers and Magazines must come from the Publisher or Vendor.”

         Although LCF officials failed to issue a notice of censorship to plaintiff concerning the first letter from his mother, he learned of the rejection from her and filed a grievance. The first response to the grievance stated that the letter “contained copies of a book. The materials were reviewed and determined that they needed to be returned to the sender. Additionally, the envelope weighed more than 1 ounce.”

         Plaintiff appealed to the warden, whose response affirmed the rejection, stated that the envelope explained the reason for the rejection, and added, “Several other 9” x 12” envelopes were also rejected for excess weight and copied book pages.”

         Plaintiff then appealed to the Secretary, who found that, although the institution erred in failing to issue a notice of censorship, plaintiff had challenged the censorship through the grievance procedure. The response upheld the rejection.

         Plaintiff did not file grievances concerning the remaining envelopes.

         Finally, plaintiff presents a claim that defendants substantially burdened his religious exercise by depriving him of the December 2017 and January 2018 issues of Sapphires, a daily devotional published by Hope of the World, a Messianic Jewish Ministry.

         Discussion

         Motions pending before the court

         The Court first addresses the pending non-dispositive motions.

         Plaintiff's motion for court order (Doc. 28)

         Plaintiff seeks an order directing counsel for the Kansas Department of Corrections to include in the Martinez report[1] evidence and contents of a mailing from his mother that was censored on October 5, 2018. Attachments show that plaintiff received a notice of mail censorship on the same day. The notice identified the grounds for the censorship as (1) the publication was not received from a vendor; (2) the weight exceeded the one ounce limit; and (3) the mailing contained legal materials that were not sent from a legal source (Doc. 28, Att. p. 2).

         The Court denies this request. In light of the Court's resolution of this action, the addition sought by plaintiff, concerning another item of mail from his mother identified as legal mail, is futile. Plaintiff's motion to amend complaint (Doc. 33)

         Plaintiff filed a motion to amend which seeks to add a claim arising under state law and alleging a deprivation of property caused by the return of the purported legal mail sent by his mother. The Court finds this claim is legally frivolous and denies the motion to amend the complaint.

         Plaintiff's motion to strike clerk's order extending time and motion to recuse (Doc. 37)

         On January 8, 2019, plaintiff filed a combined motion to recuse and motion to strike the clerk's order extending time to answer. The rules of the District of Kansas allow the clerk of the court to grant certain orders, including orders extending for 14 days the time to answer or otherwise plead to a complaint. D. Kan. R. 77.2(a)(2). The clerk's order in this matter was issued in compliance with that rule, and plaintiff is not entitled to relief.

         Plaintiff also moves for recusal, citing the delay in ruling on his motion to amend. Two statutes govern judicial recusal, 28 U.S.C. §§ 144 and 455. Burleson v. Spring PCS Group, 123 Fed.Appx. 957, 959 (10th Cir. 2005). For recusal under §144, the moving party must submit an affidavit showing bias and prejudice. Id. (citing Glass v. Pfeffer, 849 F.2d 1261, 1267 (10th Cir. 1988)). The bias and prejudice must be personal, extrajudicial, and identified by “facts of time, place, persons, occasions, and circumstances.” Id. at 960 (quoting Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987)). The facts will be accepted as true, but they must be more than conclusions, rumors, beliefs, and opinions. Id. Without an affidavit showing bias or prejudice and proper identification of events indicating a personal and extrajudicial bias, a plaintiff does not support a request for recusal under 28 U.S.C. § 144.

         Under 28 U.S.C. § 455(a) and (b)(1), a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned” or if “he has a personal bias or prejudice concerning a party.” 28 U.S.C. § 455(a) and (b)(1).

         A judge has as strong a duty to preside in a case where there is no legitimate reason for recusal as a duty to recuse when the circumstances require it. Hinman v. Rogers, 831 F.2d 937, 939 (10thCir. 1987). The Court is familiar with the case, has considered the record, and finds plaintiff makes only broad allegations that do not show bias or prejudice. Likewise, the Court finds no reason to recuse on the ground ...


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