United States District Court, D. Kansas
KEVIN D. LOGGINS, SR., Plaintiff,
JOSEPH NORWOOD, et al., Defendants.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
matter comes before the court on several of pro se
plaintiff 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 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).
February 5, 2018, plaintiff-a prisoner in custody of the
Kansas Department of Corrections (“KDOC”)-filed a
Complaint under 42 U.S.C. § 1983. 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.
January 24, 2019, plaintiff filed a “Motion to Impeach
the Judgment 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.
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. 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
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).
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).
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)
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). 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.
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
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
Plaintiff's Motion for Reconsideration (Doc. 41)
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). 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.
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)).
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.
Plaintiff's Motion Seeking Joinder to Add Defendant (Doc.
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.
Amendment under Rule 15
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)).
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
“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)).
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
Joinder Under Rules 18 and 20
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