Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Loggins v. Norwood

United States District Court, D. Kansas

January 15, 2020

KEVIN D. LOGGINS, SR., Plaintiff,
v.
JOSEPH NORWOOD, et al., Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge.

         This matter comes before the court on several of pro se plaintiff[1] Kevin D. Loggins, Sr.'s motions: Motion to Recuse Judge Samuel A. Crow (Doc. 38); Motion for Reconsideration (Doc. 41); Motion for Correction of Judicial Notice and Request for Leave (Doc. 58); and Motion Seeking Joinder to Add Defendant (Doc. 59). Defendants Joseph Norwood, Dan Schnurr, and Shannon Meyer[2] have filed a Motion to Dismiss, or alternatively, a Motion for Summary Judgment (Doc. 43) and a Motion to Stay Discovery (Doc. 45). For reasons explained below, the court grants defendants' Motion to Dismiss (Doc. 43) and denies all other pending motions (Docs. 38, 41, 45, 58, & 59).

         I. Procedural Background

         On February 5, 2018, plaintiff-a prisoner in custody of the Kansas Department of Corrections (“KDOC”)-filed a Complaint under 42 U.S.C. § 1983.[3] Doc. 5. Count I of the Complaint asserts that defendant Norwood violated plaintiff's constitutional rights when the Director of Reentry denied plaintiff's request to discontinue managing him as a sex offender. Id. at 5-6. For relief, plaintiff seeks “to be removed from being housed as a sex offender, released of the requirement to participate in the sex offender treatment program, . . . be removed from the KDOC Kasper web page as a sex offender . . . [and] that $150, 000 be awarded for every year said slander and defamation [have] been posted.” Id. at 8.

         On January 24, 2019, plaintiff filed a “Motion to Impeach the Judg[]ment of Conviction for the Charge of Aggravated Sexual Battery in No. 95CR1859” (Doc. 29). On March 6, 2019, Judge Crow denied plaintiff's motion. Doc. 34 at 2-4. Judge Crow's Order denied plaintiff's request to set aside his criminal conviction because “any claim seeking release from imprisonment is not cognizable in a § 1983 action.” Id. at 2-3 (citing Preiser v. Rodriguez, 411 U.S. 475, 499 (1973)). Also, the Order granted defendants' request for an extension of time to respond to plaintiff's Complaint (Doc. 32) and denied plaintiff's Motion to Change Venue (Doc. 28) and Motion to Consolidate (Doc. 30). See generally Doc. 34.

         On March 13, 2019, plaintiff filed a “Motion to Recuse U.S. Senior District Judge Sam A. Crow” (Doc. 38). On March 19, 2019, the case was reassigned to the undersigned judicial officer.[4] Doc. 40. On March 27, 2019, plaintiff filed a Motion for Reconsideration of Judge Crow's Order (Doc. 41). Defendants then filed a Motion to Dismiss, or alternatively, for Summary Judgment (Doc. 43). Consistent with D. Kan. Rule 56.1(f), defendants sent plaintiff a “Notice to Pro Se Litigant Who Opposes a Summary Judgment Motion” (Doc. 46). This notice advised plaintiff that he “may not oppose summary judgment simply by relying upon the allegations in [his] complaint. Rather, [he] must submit evidence, such as witness statements or documents, countering the facts asserted by the defendants and raising specific facts that support [his] claim.” Id. at 1. Also, consistent with our local rules, defendants attached to their Notice the full text of the rules governing summary judgment: Fed.R.Civ.P. 56 and D. Kan. Rule 56.1. Id. at 3-5. Plaintiff never responded to defendants' motion.

         Defendants also have filed a Motion to Stay Discovery (Doc. 45) pending the court's ruling on its Motion to Dismiss. In response, plaintiff has filed a “Motion for Correction of Judicial Notice and Request for Leave for 30 Days to Respond to Defendants['] Reply in Support of Motion to Stay” (Doc. 58). And, finally, on December 18, 2019, plaintiff filed a “Motion Seeking Joinder to Add Defendant Pursuant to 42 U.S.C. § 1983 for Retali[a]tory Practices” (Doc. 59).

         The court first considers plaintiff's Motion for Reconsideration (Doc. 41), and then his Motion Seeking Joinder to Add Defendant (Doc. 59). Finally, the court considers defendants' Motion to Dismiss, or alternatively, Motion for Summary Judgment (Doc. 43).

         II. Plaintiff's Motion for Correction of Judicial Notice and Request for Leave for 30 Days to Respond to Defendants['] Reply in Support of Motion to Stay (Doc. 58)

         On May 14, 2019, plaintiff requested that the court take judicial notice that his Aggravated Sexual Battery conviction “is a legal nullity and stems from a void judgment.” Doc. 55 at 1. Plaintiff filed a copy of the Preliminary Examination transcript (Doc. 55-1), which he asserts is evidence of the trial judge's “personal interest in the case and bias.” Doc. 55 at 1. On May 21, 2019, plaintiff filed a Motion for Correction of Judicial Notice (Doc. 58).[5] Plaintiff explained that he believed the Preliminary Examination transcript had not been “transmitted or filed by the facility officials, ” so he refiled it with his Motion for Correction of Judicial Notice (Doc. 58). The transcript, however, was filed with plaintiff's first motion, so plaintiff's request for a “correction” was unnecessary. In any event, the court denies plaintiff's motion and declines to take judicial notice that plaintiff's state court conviction is void for two reasons.

         First, the court lacks jurisdiction to invalidate plaintiff's state court conviction. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (“[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment . . . a § 1983 plaintiff must prove that the conviction has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal . . . or called into question by a federal court's issuance of a writ of habeas corpus . . . .”); Martinez v. City of Albuquerque, 184 F.3d 1123, 1125 (10th Cir. 1999) (federal civil rights lawsuit allowed to proceed to the extent it does not challenge the lawfulness of his arrest and conviction).

         Second, Fed.R.Evid. 201 only allows judicial notice of a fact when it “is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” The “fact” that plaintiff nominates for judicial notice in his motion doesn't meet this standard. Defendants dispute plaintiff's allegation (Doc. 57 at 2), and it is not the kind of fact eligible for judicial notice under Fed.R.Evid. 201. See, e.g., Meredith v. Beech Aircraft Corp., 18 F.3d 890, 895 (10th Cir. 1994) (holding that judicial notice would be improper because fact that a candidate is most qualified for position is a disputed fact that must be established through the presentation of evidence, and was not a “universal truth”). The court thus denies plaintiff's motion (Doc. 58).

         III. Plaintiff's Motion for Reconsideration (Doc. 41)

         On March 6, 2019, Judge Samuel A. Crow denied plaintiff's “Motion to Impeach the Judgment of Conviction for the Charge of Aggravated Sexual Battery in No. 95CR1859” (Doc. 29). Judge Crow denied plaintiff's motion because, when the “legality of a confinement is challenged so that the remedy would be release or a speedier release, the case must be filed as a habeas corpus proceeding rather than under 42 U.S.C. § 1983, and the plaintiff must comply with the exhaustion of state court remedies requirement.” Doc. 34 at 2 (citing Heck, 512 U.S. at 482). On March 19, 2019, Judge Crow recused and the case was reassigned to the undersigned judicial officer. Doc. 40. On March 27, 2019, plaintiff filed a Motion for Reconsideration (Doc. 41).[6] Plaintiff's motion argues that the court should reconsider Judge Crow's Order because it was decided by a judge who “has a personal interest in the case and who[ ] resigned himself due to his interest in the case.” Doc. 41 at 1.

         Under D. Kan. Rule 7.3(b), a motion to reconsider “must be based on: (1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct clear error or prevent manifest injustice.” “A motion to reconsider is appropriate where the court has obviously misapprehended a party's position or the facts or applicable law, or where the party produces new evidence that could not have been obtained through the exercise of due diligence.” Comeau v. Rupp, 810 F.Supp. 1172, 1174-75 (D. Kan. 1992) (citations omitted). But, a disappointed litigant may not use reconsideration to revisit issues already addressed or assert new arguments or supporting facts that were available for presentation when the court originally decided the question. Id. (citing Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991)). A court has considerable discretion when deciding a motion to reconsider. Hancock v. Okla. City, 857 F.2d 1394, 1395 (10th Cir. 1988); Shannon v. Pac. Rail Servs., 70 F.Supp.2d 1243, 1251 (D. Kan. 1999) (citing Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997)).

         Plaintiff here has cited no intervening change in law and he has presented no new evidence. He also has failed to show any need to correct clear error or prevent manifest injustice. His unsubstantiated claim of “manifest injustice”-claiming in conclusory fashion about a bias against him-does not meet this standard. Doc. 41 at 1. Plaintiff failed to establish any grounds warranting reconsideration under D. Kan. Rule 7.3(b). And, a motion for reconsideration is not a vehicle “to revisit issues already addressed.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Exercising its discretion, the court denies plaintiff's Motion for Reconsideration (Doc. 41) for all these reasons.

         IV. Plaintiff's Motion Seeking Joinder to Add Defendant (Doc. 59)

         On December 18, 2019, plaintiff filed a “Motion Seeking Joinder to Add Defendant to Suit Pursuant to 42 U.S.C. § 1983 for Retali[a]tory Practices” (Doc. 59). Plaintiff seeks to add Patricia Keen-the “mailroom official/supervisor” at HCF-as a defendant in his lawsuit. Doc. 59 at 2. Plaintiff alleges that Ms. Keen has retaliated against him for filing this § 1983 action by failing to send and deliver his legal mail while in custody at HCF. Id. at 2-4. He alleges that Ms. Keen's conduct in the mailroom resulted in the Tenth Circuit dismissing one of his appeals. Id. at 4. Also, plaintiff claims that defendants have violated his “constitutional right to freedom of religion.” Id. at 1. For reasons explained below, the court denies plaintiff's motion to add a retaliation claim.

         A. Amendment under Rule 15

         The court construes plaintiff's motion as a motion to amend his Complaint under Fed.R.Civ.P. 15. Federal Rule of Civil Procedure 15(a)(1) permits a party to amend its pleadings in one of two ways: (A) first, as a matter of course within 21 days after serving the pleading to be amended, or (B) second, within 21 days of service of a responsive pleading. Fed.R.Civ.P. 15(a)(1)(A)-(B). Outside those periods, any amendment to the pleadings requires leave, and courts should “freely give leave [to amend] when justice so requires.” Fed.R.Civ.P. 15(a)(2); Foman v. Davis, 371 U.S. 178, 182 (1962). In contrast, a court should refuse to grant leave to amend on “a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies . . ., or futility of amendment.” Bylin v. Billings, 568 F.3d 1224, 1229 (10th Cir. 2009) (quoting Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993)).

         Plaintiff filed his motion well after the 21-day limit in Fed.R.Civ.P. 15(a)(1). So, plaintiff may amend his Complaint only if the court grants him leave. The court declines to grant leave because the retaliation claim he aspires to assert against Ms. Keen is futile. “[I]t is well established that an act in retaliation for the exercise of a constitutionally protected right is actionable under [42 U.S.C.] Section 1983 even if the act, when taken for a different reason, would have been proper.” Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990) (citations omitted). The Tenth Circuit has held:

Government retaliation against a plaintiff for exercising his or her First Amendment rights may be shown by proving the following elements: (1) that the plaintiff was engaged in constitutionally protected activity; (2) that the defendant's actions caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the defendant's adverse action was substantially motivated as a response to the plaintiff's exercise of constitutionally protected conduct.

Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007).

         But, an “inmate claiming retaliation must allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights.” Fogle v. Pierson, 435 F.3d 1252, 1264 (10th Cir. 2006) (quotations and citations omitted). Thus, to state a claim on this theory, “it is imperative that plaintiff's pleading be factual and not conclusory. Mere allegations of constitutional retaliation will not suffice.” Frazier v. Dubois, 922 F.2d 560, 562 n.1 (10th Cir. 1990). “To prevail, a prisoner must show that the challenged actions would not have occurred ‘but for' a retaliatory motive.” Baughman v. Saffle, 24 Fed.Appx. 845, 848 (10th Cir. 2001) (first citing Smith v. Maschner, 899 F.2d 940, 949-50 (10th Cir. 1990), then citing Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998)).

         Plaintiff's proposed § 1983 claim fails to state a claim for retaliation. He makes, at best, a bald assertion that Ms. Keen mishandled his mail in September, 2019; he asserts also that she did so as retaliation for a lawsuit plaintiff had filed 20 months earlier against different KDOC employees. But plaintiff alleges no facts capable of supporting a claim that Ms. Keen acted with an illegal retaliatory motive. Also, he fails to allege any facts supporting his claim that Ms. Keen or any other defendant violated his right to religious freedom. The court denies plaintiff's motion for leave to amend because the claim he seeks leave to amend fails to state a claim. The proposed amended Complaint is an exercise in futility.

         B. Joinder Under Rules 18 and 20

         To the extent plaintiff's motion seeks to add an unrelated claim against a new defendant alleging blocked access to the courts-and it appears that is the gist of his motion to add Ms. Keen as a defendant-joinder is not warranted under ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.