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Queen v. Mildner

United States District Court, D. Kansas

September 24, 2019

SAMUEL ROBERT QUEEN, Plaintiff,
v.
MILDNER, FNU, et al., Defendants.

          MEMORANDUM AND ORDER

          Sam A. Crow U.S. Senior District Judge.

         This matter is a Bivens[1]-type civil rights action filed by a prisoner in federal custody. It comes before the Court on defendants’ motion to dismiss, or, in the alternative, motion for summary judgment (Doc. 99). For the reasons that follow, the Court grants the motion and dismisses this matter.

         Nature of the Complaint

         Plaintiff claims that defendants interfered with his access to the courts by removing legal materials from his cell in the Special Housing Unit (SHU), by failing to provide him with administrative remedy forms, by failing to provide him with photocopies, by denying him access to the law library in the SHU, by failing to provide him with financial statements from his institutional account, and by retaliating against him by transferring him to a higher security prison.

         Procedural History

         Plaintiff commenced this action on January 7, 2005. On January 18, before the matter had been screened, he filed a supplement to the complaint. On January 21, 2005, the Court directed him to submit a financial statement that complied with 28 U.S.C. § 1915(b) and a complaint presented on a form pleading.

         Plaintiff filed an amended complaint on February 4, 2005. He alleged a failure to file grievances and provide him with documents needed for access to the courts, including grievances, financial statements, and unspecified copies. He alleged that the defendants now avoided visiting him in segregation, causing him humiliation. As relief, he sought declaratory and injunctive relief and attorney fees.

         On February 28, 2005, plaintiff filed a motion for joinder of parties, which sought to add two defendants, J.D. Crook and Cindy Ashman. On April 26, 2005, he filed a motion to dismiss defendant Goode. On May 3, 2005, he filed a motion to amend the complaint seeking to add defendants Ashman and Crook and to remove defendant Goode. He also filed a second motion on the same day to add defendants Crook and Ashman; that pleading alleged retaliation by Grey and Ashman for filing lawsuits by unreasonable classification and claimed that Crook admonished him for filing over 100 grievances during his 12 years of incarceration. Plaintiff asserted that Crook had aided defendants in their attempts to keep him from filing for redress.

         On May 12, 2005, the Court ordered plaintiff to submit an initial partial filing fee, denied his motion for preliminary injunctive relief, granted his motions to add defendants Ashman and Crook, granted the motion to dismiss defendant Goode, and granted his two motions to amend the complaint.

         Plaintiff submitted the initial partial filing fee in June 2005. On February 2, 2006, the Court granted leave to proceed in forma pauperis and directed the service of process on defendants Mildner, Grey, Childs, Ashman and Crook.

         On March 6, 2006, plaintiff filed a motion for leave to amend the complaint, and on April 3, 2006, he filed a supplement to the motion.

         On July 13, 2006, defendants filed a motion to dismiss the complaint under 28 U.S.C. § 1915(g), asserting that plaintiff was subject to the “three strikes” provision of the federal in forma pauperis statute. On August 3, 2006, the Court directed plaintiff to submit the $50.00 balance owed on the filing fee. Plaintiff failed to do that, and the Court dismissed the matter without prejudice on September 12, 2006.

         Following the dismissal, plaintiff filed two motions for relief from judgment, a motion to modify payments, a motion to return original exhibits, and a motion for relief from judgment in the nature of mandamus. On October 31, 2017, the Court granted the motions for relief from judgment, reopened the action, and requested a status report from the parties.

         In January 2018, plaintiff filed a motion to amend the complaint, and in February 2018, he filed another motion to amend. In May 2018, he filed a motion for judgment on the pleadings, or, in the alternative, for summary judgment. On November 29, 2018, defendants filed a motion to dismiss, or, in the alternative, for summary judgment.

         Plaintiff’s motion for reconsideration

         Plaintiff filed an objection to the Court’s ruling denying his most recent motions to amend, filed in January and February 2018. He asserts the denial of those requests is an abuse of discretion. Generally, there are three grounds that justify the reconsideration of an interlocutory order: “(1) an intervening change in the controlling law; (2) new evidence [that was] previously unavailable; [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); D. Kan. R. 7.3(b).

         As reflected in the procedural history shown above, plaintiff had filed multiple similar motions in this matter and had been advised that he would not be allowed additional amendment except upon a showing of good cause. The Court has reviewed its order rejecting the most recent motions to amend in light of the standards governing a motion for reconsideration and finds no ground to grant relief.

         Legal Standards

         Fed. R. Civ. P. 12(b)(1) Standard

         Dismissal under Rule 12(b)(1) is appropriate if the Court lacks subject matter jurisdiction over claims asserted in the complaint. Dismissal under this provision is not a judgment on the merits of the action but rather a determination that the court lacks authority to adjudicate the matter. See Castanedea v. INS, 23 F.3d 1576, 1580 (10thCir. 1994)(recognizing that the federal courts are courts of limited jurisdiction and may exercise jurisdiction only where they specifically are authorized to do so).

         Motions to dismiss brought under Rule 12(b)(1) “generally take one of two forms: (1) a facial attack on the sufficiency of the complaint’s allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002). If the motion is a facial challenge, the Court accepts the plaintiff’s allegations as true. Id. Where the motion is brought as a factual attack, a court has “wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts.” Holt v. United States, 46 F.3d 1000, 1003 (10thCir. 1995).

         Fed. R. ...


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