United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
Crow U.S. Senior District Judge.
Gary Jordan is hereby required to show good cause, in
writing, to the Honorable Sam A. Crow, United States District
Judge, why this action should not be stayed pending further
order of the Court.
Nature of the Matter before the Court
filed this pro se civil rights case under 28 U.S.C.
§ 1331 on September 10, 2018. On September 12, 2018, the
Court entered a Notice of Deficiency (Doc. 2) granting
Plaintiff until October 12, 2018, in which to submit his
Complaint on court-approved forms. See D. Kan. Rule
9.1(a). The proper forms were provided to Plaintiff with the
Notice of Deficiency. On October 15, 2018, Plaintiff filed a
motion for an extension of time to submit his complaint on
court-approved forms. (Doc. 4.) The Court granted the motion
and extended Plaintiff's deadline to November 19, 2018.
(Doc. 5.) On November 15, 2018, Plaintiff filed another
motion for extension of time (Doc. 6) and the Court granted
him a further extension to December 19, 2018. (Doc. 7.) On
February 22, 2019, the Court entered an Order to Show Cause
(Doc. 10) granting Plaintiff until March 15, 2019, in which
to show good cause why this action should not be dismissed
for failure to comply with court orders. Plaintiff filed
another motion for extension of time (Doc. 11), seeking an
extension of time to respond to the Court's Order to Show
Cause. The Court entered an Order (Doc. 12) granting
Plaintiff an extension of time to March 29, 2019. On April 1,
2019, Plaintiff filed his Complaint on the court-approved
form (Doc. 14). In the Complaint, Plaintiff asserts
“that he will probably be filing an amendment under
Rule 15(c).” (Doc. 14, at 12.) To date, Plaintiff has
not filed an amendment to his Complaint.
alleges in his Complaint that he was arrested around March
10, 2016, and was held as a federal pretrial detainee at
Corrections Corporation of America in Leavenworth, Kansas
(“CCA”), now CoreCivic. Plaintiff alleges that
his defense counsel arranged for visits with Plaintiff based
on an alleged court order for incompetency interviews, and
told Plaintiff that the interviews would be completely
confidential. Plaintiff alleges that he was recently informed
that the interviews were recorded and videotaped in violation
of his constitutional rights. Plaintiff alleges that during
one of his attorney-client visits with defense counsel he
became upset, and out of frustration he threw some documents
from the table onto the floor. Plaintiff then got up from his
seat and turned toward the visiting room door so he could
bang on the door to call staff because he wanted to end the
visit. Plaintiff alleges that before he could even reach the
door, correctional staff were rushing through the doors and
placing handcuffs on Plaintiff. Plaintiff recently discovered
that all of his attorney-client visits were being monitored,
recorded and videotaped, without his knowledge or consent.
Plaintiff believes that the visits occurred between February
20, 2016, and May 16, 2016. Plaintiff alleges that the U.S.
Attorney's Office in Kansas City acquired the videos,
maintained them in the Kansas City office and distributed
them to their agents.
names as defendants multiple attorneys with the U.S.
Attorney's Office and the Public Defender's Office,
arguing that they conspired with state actors.
Plaintiff's request for relief includes declaratory and
injunctive relief. Plaintiff seeks an order directing
defendants to turn over to Plaintiff:
Any statements, affidavits, memorandums/memos, reports, notes
and any other documentations in their possession or the
possession of their agency or any other agencies, such as law
enforcement officer(s), prosecutor(s), etc., that have
knowledge of [sic] should have possession of anything
requested herein surrounding the f/k/a scandal abuse at the
Corecivic, Inc., Corrections.
(Doc. 14, at 12.) Plaintiff states that he “is unable
at this time to determine what type of money damages if any
he should seek because the name Defendant(s) herein are
attempting to continue to keep him completely in the dark
about this critical information that would further support
his civil rights complaint.” Id. Plaintiff
also asserts “that he will probably be filing an
amendment under Rule 15(c).” Id.
Court takes judicial notice that on January 11, 2019,
Plaintiff filed a Motion to Vacate and Discharge with
Prejudice Under 28 U.S.C. § 2255 in his federal criminal
case. See Jordan v. United States, No.
16-cr-20022-JAR-2, Doc. 159 (D. Kan.). Plaintiff is
represented in his § 2255 motion by the Federal Public
Defender and First Assistant Federal Public Defender for the
District of Kansas. The § 2255 motion is based on the
attorney-client recordings while Plaintiff was housed at CCA.
The motion refers to the Black case, where: all
local detention facilities were ordered to cease recording
attorney-client meeting and phone calls; all video and audio
recordings in USAO custody were ordered impounded; and the
government was ordered to preserve its computer hard drives.
Id. (citing United States v. Black, et. al,
Case No. 16-20032-JAR). Plaintiff's § 2255 motion
argues that his Sixth Amendment right to confidential
attorney-client communications was violated, and seeks to
vacate Petitioner's judgment, with immediate discharge
and prejudice to any further prosecution. In the alternative,
Petitioner asks this Court to vacate Petitioner's
sentence, and impose a new sentence of 180 months'
imprisonment. Id. The government's response to
the motion is due July 29, 2019. Id. at Doc. 180.
Court also notes that there is a pending civil case based on
the recordings at CCA. In Huff v. CoreCivic,
plaintiffs are suing CoreCivic, Inc., formerly known as
Corrections Corporation of America, and Securus Technologies,
Inc., individually and on behalf of all others similarly
situated. See Huff v. CoreCivic, No. 17-2320-JAR-JPO
(D. Kan.). A motion for class certification in that case is
currently due August 29, 2019. Id. at Doc. 134, p.2.
Plaintiffs are seeking the benefits provided under the
Federal Wiretap Act, codified at 18 U.S.C. § 2511,
et seq., claiming they are entitled to monetary
damages. Id. at Doc. 1, p. 10.
appears as though the injunctive and declaratory relief
Plaintiff currently seeks in this civil rights action may be
obtained pursuant to his pending § 2255 motion. Although
Plaintiff does not currently seek monetary damages in this
civil rights case, it is unclear at this juncture whether
Plaintiff may be a member of any class that is ultimately
certified in the Huff case. Therefore, Plaintiff is
directed to show good cause why this civil rights action
should not be stayed pending resolution of his § 2255
motion and class certification determinations in the
IS THEREFORE ORDERED THAT Plaintiff is granted until
August 16, 2019, in which to show good
cause, in writing, to the Honorable Sam A. Crow, United
States District Judge, why this action should not be stayed
until further order of the Court for the reasons set forth