United States District Court, D. Kansas
MEMORANDUM AND ORDER
Crow, U.S. Senior District Judge
proceeds pro se and in forma pauperis in this prisoner civil
rights action under 42 U.S.C. § 1983. At the time of
filing, Plaintiff was in custody at the El Dorado
Correctional Facility in El Dorado, Kansas. Plaintiff alleges
that Defendants censored and banned his authored books
without good cause and in violation of his First Amendment
rights. The Court entered a Memorandum and Order and Order to
Show Cause (Doc. 6) (“MOSC”), granting Plaintiff
the opportunity to either show good cause why his Complaint
should not be dismissed or to file a proper amended
complaint. Plaintiff filed an Amended Complaint (Doc. 7). On
August 16, 2019, the Court entered a Memorandum and Order
(Doc. 9) finding that the Amended Complaint failed to cure
the deficiencies discussed in the MOSC and dismissing this
matter for failure to state a claim. This matter is before
the Court on Plaintiff's Motion to Alter or Amend (Doc.
Court found in the MOSC that the governmental objectives
underlying K.A.R. § 44-12-313 have been found to be
legitimate and neutral and the regulation has been found to
rationally relate to those objectives. See Sperry v.
Werholtz, 413 Fed.Appx. 31, 40 (10th Cir. 2011)
(unpublished). The Court also found that Plaintiff fails to
even identify or describe what was contained in the banned
materials, stating that:
Plaintiff alleges that his authored book or book cover were
withheld as sexually explicit and that the book contained no
“sexually explicit gestures, no penetration or anything
considered vulgar in nature.” However, the regulation
prohibits more than these categories, and Plaintiff fails to
even identify or describe what was contained on the book
cover. Plaintiff does not state a federal constitutional
violation by alleging that his materials were withheld as
sexually explicit without more. See Meredith v.
Roberts, No. 12-3027-SAC, 2012 WL 1380330, at *5 (D.
Kan. April 20, 2012). As the Tenth Circuit has noted:
[S]uch restrictions are sufficiently commonplace in the
prison setting, see, e.g., Thornburgh, 490 U.S. at
415-19, 109 S.Ct. 1874 (upholding restrictions on
prisoners' incoming mail); Smith, 899 F.2d at
944 (complaint about undelivered catalogues did not raise a
constitutional issue), that his claim is not plausible absent
allegations showing that the restrictions were imposed in
violation of prison regulations or that the regulations
invoked were unconstitutional in the circumstances.
Id. (quoting Gee v. Pacheco, 627 F.3d 1178,
1190 (10th Cir. 2010)).
(Doc. 6, at 6.)
dismissing this matter, the Court found that: Plaintiff's
Amended Complaint fails to address the deficiencies discussed
in the MOSC; Plaintiff continues to allege that the censored
items were not sexually explicit without any factual support
or allegations regarding the content of the banned items; and
Plaintiff fails to state a claim for a violation of his First
argues in his motion to alter or amend judgment that
Defendants censored and banned his authored books without
good cause and in violation of his First Amendment rights.
Plaintiff alleges that K.A.R. § 44-12-313 has not been
violated and the Court cannot conclude otherwise
“without a review of exhibits which has not yet
occurred.” (Doc. 13, at 1-2.) Plaintiff alleges that
the rules were made to regulate and facilitate the
rehabilitation of sex offenders, and because Plaintiff is not
a sex offender he should not be subjected to “cruel and
unusual atypical conditions due to the facilities need to
regulate sex offenders.” Id. at 2. Plaintiff
makes the bald allegation that his books are not a security
risk and do not promote sexual harassment. Id.
Rule 7.3 provides that “[p]arties seeking
reconsideration of dispositive orders or judgments must file
a motion pursuant to Fed.R.Civ.P. 59(e) or 60.” D. Kan.
Rule 7.3(a). Because Plaintiff's motion was filed within
28 days after the entry of the order, the Court will treat it
as a motion under Rule 59. See Fed. R. Civ. P. 59(e)
(“A motion to alter or amend a judgment must be filed
no later than 28 days after the entry of the
motion to alter or amend judgment pursuant to Rule 59(e) may
be granted only if the moving party can establish: (1) an
intervening change in the controlling law; (2) the
availability of new evidence that could not have been
obtained previously through the exercise of due diligence; or
(3) the need to correct clear error or prevent manifest
injustice. Servants of the Paraclete v. Does, 204
F.3d 1005, 1012 (10th Cir. 2000). A motion under Rule 59(e)
is not to be used to rehash arguments that have been
addressed or to present supporting facts that could have been
presented in earlier filings. Id. Reconsideration of
a judgment after its entry is an extraordinary remedy that
should be used sparingly. See Templet v. HydroChem,
Inc., 367 F.3d 473, 479 (5th Cir. 2004); Allender v.
Raytheon Aircraft Co., 439 F.3d 1236, 1242 (10th Cir.
2006); Zucker v. City of Farmington Hills, 643
Fed.Appx. 555, 562 (6th Cir. 2016) (relief under R. 59(e) is
has failed to show that he is entitled to relief from the
Court's judgment dismissing this matter. Plaintiff
alleges that the Court needs to consider exhibits which
allegedly “has not yet occurred.” However, there
are no exhibits attached to Plaintiff's Complaint or
Amended Complaint or Supplement. (Docs. 1, 7, 8.)
Furthermore, Plaintiff continues to make bald allegations
that his authored materials were censored without good cause,
without any factual support. Plaintiff's allegations are
completely conclusory. See Ysais v. Richardson, 603
F.3d 1175, 1180 (10th Cir. 2010) (sating that district court
did not abuse its discretion in denying a motion under Rule
59(e) based only on conclusory statements).
does not meet the exacting standard for relief under
Fed.R.Civ.P. 59(e). In sum, Plaintiff has failed to meet the
standard required for this Court to alter or amend its August
16, 2019 Order and Judgment, and that ruling stands.
filed a Motion to Appoint Counsel (Doc. 12), arguing that he
is indigent and is in segregation with limited access to
legal materials. The Court has considered Plaintiff's
motion for appointment of counsel. There is no constitutional
right to appointment of counsel in a civil case. Durre v.
Dempsey, 869 F.2d 543, 547 (10th Cir. 1989); Carper
v. DeLand, 54 F.3d 613, 616 (10th Cir. 1995). The
decision whether to appoint counsel in a civil matter lies in
the discretion of the district court. Williams v.
Meese, 926 F.2d 994, 996 (10th Cir. 1991). “The
burden is on the applicant to convince the court that there
is sufficient merit to his claim to warrant the appointment
of counsel.” Steffey v. Orman, 461 F.3d 1218,
1223 (10th Cir. 2006) (quoting Hill v. SmithKline Beecham
Corp., 393 F.3d 1111, 1115 (10th Cir. 2004)). It is not
enough “that having ...