United States District Court, D. Kansas
MEMORANDUM AND ORDER
Crow U.S. Senior District Judge.
matter is a Bivens-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
of the Complaint
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.
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.
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.
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.
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.
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.
March 6, 2006, plaintiff filed a motion for leave to amend
the complaint, and on April 3, 2006, he filed a supplement to
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.
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.
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.
motion for reconsideration
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).
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.
R. Civ. P. 12(b)(1) Standard
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
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).