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dismissing suit because plaintiff failed to specify exactly how he was prejudiced by the lack of legal materials
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Case No. 04-CV-3043-JAR.
March 11, 2005
ORDER DENYING MOTION FOR RECONSIDERATION
On December 22, 2004, the Court issued an order dismissing the suit filed by plaintiffs Kenneth Williams, Earl L. Wallace, Jr and Domingo Calderon (Doc. 30). In its prior order, the Court concluded that plaintiffs had failed to timely respond to defendants' motion to dismiss, and that defendants' motion could be treated as an uncontested motion pursuant to District of Kansas local rule 7.4. The Court concluded, however, that dismissal on the merits was "proper under Federal Rule [of] Civil Procedure 12(b)(6) for substantially the same reasons set forth in defendants' motion to dismiss." Plaintiff Calderon has filed with the Court a one page pleading stating that he is "opposed to this dismissal" (Doc. 33), which the Court treats as a motion for reconsideration. For the reasons stated below, plaintiff's motion for reconsideration is denied.
Plaintiffs Williams and Wallace, Jr. do not seek reconsideration of the Court's order of dismissal.
I. Rule 59(e) Standards
Plaintiff Calderon seeks reconsideration of the Court's order dismissing his case pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. A 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. A losing party should not use a motion for reconsideration as a vehicle to rehash arguments previously considered and rejected. Nor does a party's failure to present its strongest case in the first instance entitle it to a second chance in the form of a motion for reconsideration.
Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
Voelkel v. Gen. Motors Corp., 846 F. Supp. 1482, 1483 (D. Kan. 1994).
Sac Fox Nation of Missouri v. LaFaver, 993 F. Supp. 1374, 1375-76 (D. Kan. 1998).
II. Discussion
Plaintiff Calderon does not state on what basis he seeks reconsideration. His request for reconsideration states in toto:
I am writing in response to the Defendants [sic] Motion to Dismiss. Signed by Julie A. Robinson on 12/22/04.
I am opposed to this Dismissal, on the grounds. [sic] We still have insuffecent [sic] time, or Kansas Legal material to properly research, or draft our legal work. [sic] Which conflicks [sic] with our 1st Amendment right to access the courts.
This is due to being housed out of state at. [sic] Limeston [sic], County, Detention Center.
The Court construes plaintiff's pleading as seeking reconsideration to correct clear error or prevent manifest injustice. The Court will discuss both its conclusion that defendants' motion to dismiss was unopposed and could have been treated as an uncontested motion pursuant to local rule 7.4, along with its conclusion that dismissal was appropriate on the merits of defendants' Rule 12(b)(6) motion.
A. Local Rule 7.4
The Court previously noted that plaintiffs had not timely responded to defendants' motion to dismiss, and that pursuant to local rule 7.4, an unopposed motion is "considered and decided as an uncontested motion, and ordinarily will be granted without further notice." In Murray v. Archambo, the Tenth Circuit held that when dismissing a case pursuant to local rule 7.4, and not on the merits, a Court must consider three factors: "(1) the degree of actual prejudice to the defendants; (2) the amount of interference with the judicial process; and (3) the culpability of the litigant[s]." The court stated that "[o]nly when these aggravating factors outweigh the judicial system's strong predisposition to resolve cases on their merits is outright dismissal with prejudice an appropriate sanction." This Court did not discuss the three Murray v. Archambo factors in its order of dismissal, as the Court concluded that dismissal was appropriate on the merits of defendants' motion.
132 F.3d 609 (10th Cir. 1998).
Id. at 611.
Id.
Nevertheless, the Court notes that it could have dismissed plaintiffs' case as a sanction. All three factors weigh in favor of dismissal. First, plaintiffs' ongoing dereliction prejudices defendants, who have taken the time to research plaintiffs' claims and prepare a well-reasoned motion to dismiss. Second, plaintiffs are interfering in the judicial process by filing a frivolous lawsuit and then failing to prosecute the suit. Finally, the Court deems plaintiffs highly culpable. Plaintiffs' only excuse for their failure to respond to defendants' motion is that, as of January 18, 2005, they "still have insufficient time, or Kansas legal material to properly research, or draft our Legal work." The availability of Kansas legal authorities is wholly immaterial to the instant suit, in which plaintiffs allege a violation of 42 U.S.C. § 1983 for lack of access to the courts. Such a claim is based on federal law, not Kansas law. Plaintiffs also claim that they have not had enough time to prepare a response. The Court finds this claim incredible, considering that defendants filed their dismissal motion on October 27, 2004. Moreover, plaintiffs never filed a motion for extension of time with the Court, or otherwise indicated that they needed additional time to prepare a response, until after the Court dismissed their case. Thus, the Court concludes that, although it did not grant defendants' motion to dismiss as an uncontested motion pursuant to local rule 7.4, such a dismissal would have been appropriate under the circumstances.
The Court notes that this communication from plaintiff Calderon is the only communication received from any plaintiff since defendants filed their motion to dismiss.
See McKenzie v. Am. Family Publishers, No. 99-2498, 2001 WL 950952, at *1 (D. Kan. July 18, 2001) (treating motion to dismiss as an uncontested motion under similar circumstances).
B. Defendants' Motion to Dismiss
In their motion to dismiss, defendants argued that plaintiffs' § 1983 claim for denial of access to the courts should be dismissed because (1) plaintiffs' conclusory allegations failed to state a claim; (2) plaintiffs failed to exhaust their administrative remedies; and (3) defendant Kansas Department of Corrections (KDOC) was entitled to Eleventh Amendment immunity. The Court stated in its order dismissing plaintiffs' case that dismissal was appropriate "for substantially the same reasons set forth in defendants' motion to dismiss." Because the Court did not analyze each of defendants' arguments in detail in its prior order of dismissal, the Court now engages in such detailed analysis. The Court addresses each of plaintiffs' arguments for dismissal in turn.
1. Plaintiff's Conclusory Allegations Fail to State a Claim
The court will dismiss a cause of action for failure to state a claim only when it appears beyond a doubt that the plaintiff can prove no set of facts in support of the theory of recovery that would entitle him or her to relief, or when an issue of law is dispositive. The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, and all reasonable inferences from those facts are viewed in favor of the plaintiff.
Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998).
Neitzke v. Williams, 490 U.S. 319, 326 (1989).
Maher, 144 F.3d at 1304.
Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984).
The issue in resolving a motion such as this is not whether the plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support the claims. It is not the court's function "to weigh potential evidence that the parties might present at trial." The court construes the allegations in the light most favorable to the plaintiff. These deferential rules, however, do not allow the court to assume that a plaintiff "can prove facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Dismissal is a harsh remedy to be used cautiously so as to promote the liberal rules of pleading while protecting the interests of justice. However, as the Tenth Circuit has held, conclusory allegations are insufficient to state a claim for which relief may be granted under § 1983.
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).
Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).
Hall v. Bellmon, 935 F. 2d at 1109.
Associated Gen. Contractors v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983) (footnote omitted).
Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1359 (10th Cir. 1989).
Wise v. Bravo, 666 F.2d 1328, 1333 (10th Cir. 1981); see generally, Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 532 (10th Cir. 1998) (reversing district court's denial of a motion to dismiss based upon qualified immunity where plaintiff had advanced only conclusory allegations that defendants denied him equal protection).
Defendants argue that plaintiffs have failed to adequately plead their claim that they have been denied access to the courts. It is long-settled that a prison inmate has a constitutional right of access to the courts. To state a claim for denial of access to the courts, a plaintiff must show not merely the inadequacy of the legal materials available to the plaintiff, but also that the "alleged shortcomings in the library . . . hindered his efforts to pursue a legal claim." In other words, a plaintiff must allege an actual injury. The Court must be mindful that, "[although] pro se complaints, like the one involved here, are held to less stringent standards than formal pleadings drafted by lawyers, the pleading hurdle is not automatically overcome." Halpin v. Simmons, a Tenth Circuit case considering the availability of out of state legal materials to an inmate, is instructive. In Halpin, the plaintiff, who had been transferred from the Florida Department of Corrections to the Kansas Department of Corrections, brought suit against prison officials in both Florida and Kansas. The plaintiff alleged that the defendants unconstitutionally infringed upon his right of access to the courts by refusing to provide him with Florida case authorities necessary to prepare an appellate brief in support of his then-pending habeas petition before the Eleventh Circuit. The plaintiff alleged that he ultimately filed the brief in the case, but was obliged to do so "without the benefit of any new Florida case authority on the . . . law concerning the issues raised in his initial appellate brief." In addition, the plaintiff alleged that the prison officials failed to provide him with sections of the Florida Statutes Annotated and Florida court rules and regulations needed to properly prepare his suit.
Bounds v. Smith, 430 U.S. 817, 821-22, (1977).
Lewis v. Casey, 518 U.S. 343, 351 (1996).
Id. at 351-52.
McBride v. Deer, 240 F.3d 1287, 1290 (10th Cir. 2001) (internal citation omitted).
33 Fed. Appx. 961, No. 01-3391, 2002 WL 700936 (10th Cir. April 24, 2002) (unpublished opinion).
Id. at *3.
Id.
Id.
Id.
The Tenth Circuit concluded that the plaintiff's allegations were insufficient to survive a motion to dismiss because although the plaintiff had specifically described the legal materials that he was denied, he did not allege that the existing legal resources were insufficient, nor that his Eleventh Circuit claims were nonfrivolous. Notably the Tenth Circuit found "it significant that [the plaintiff] failed to allege, even in the broadest terms, that the issues raised in the Eleventh Circuit appeal were issues to which state cases, statutes, or rules — as opposed to the federal authorities that were available to him — would have been relevant."
Id. at *4.
Id. (emphasis in original).
Similarly, in McBride v. Deer, the Tenth Circuit concluded that the plaintiff failed to allege sufficient facts to satisfy the actual injury requirement. The plaintiff alleged that prison officials violated his constitutional rights by failing to act on his requests to have checks issued to the Oklahoma County court clerk and law library so as to obtain legal materials. He alleged that he had suffered an actual injury in that "[he] had no way of knowing how to file a pre trial motion, nor how to file an appeal after [he] was convicted, [he] lost [his] appeal because of this denial, and could not file illegal search and seizour [sic] motions." The Tenth Circuit held, however, that plaintiff had not properly pled that he was actually injured because he did not describe sufficiently the legal materials he was seeking; he did not clarify that the Oklahoma Department of Corrections library and its resources were inadequate for his needs; and he did not explain that his legal claim was nonfrivolous.
Id. at 1290.
Id.
Id.
Id. (internal citations omitted).
As in Halpin and McBride, here, plaintiffs have failed to adequately plead an actual injury as a result of defendants' actions. Plaintiffs generally state that they have been denied access to "Kansas law books" and aid from other Kansas inmates while incarcerated in Texas, but plaintiffs do not specify what Kansas legal authorities they seek. Plaintiffs also mention habeas corpus actions, stating that such actions must be prepared without the aid of a lawyer. Plaintiffs do not allege, however, that the lack of Kansas legal materials in Texas has prohibited them from filing writs of habeas corpus. Indeed, plaintiffs do not even plead that they have attempted to file habeas actions. Nor do plaintiffs plead that the issues raised in any contemplated habeas actions would be issues to which Kansas law, as opposed to the federal authorities that are available to them, would be relevant. Plaintiffs also fail to allege that they are even entitled to file habeas actions and, if so, that these contemplated actions are nonfrivolous. In sum, plaintiffs' allegations fall short of those deemed inadequate by the Tenth Circuit in Halpin and McBride.
The Court thus concludes that plaintiffs have failed to allege that the alleged shortcomings in the legal materials available in Texas hindered their efforts to bring suit, such that dismissal of this claim is appropriate.
2. Plaintiffs Failed to Exhaust Administrative Remedies
In addition to a dismissal for failure to state a claim, defendants urge that plaintiffs' complaint should be dismissed for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act (PLRA). Pursuant to the PLRA, "no action shall be brought with respect to prison conditions" until a prisoner exhausts his available administrative remedies. Exhaustion is mandatory, such that "[r]esort to a prison grievance process must precede resort to a court."
Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1207 (10th Cir. 2003).
A complaint that fails to allege the requisite exhaustion of remedies is tantamount to one that fails to state a claim upon which relief may be granted. To avoid dismissal, "[a] prisoner must: (1) plead his claims with a short and plain statement . . . showing that [he] is entitled to relief . . . and (2) attach a copy administrative dispositions to the complaint, or, in the absence of written documentation, describe with specificity the administrative proceedings and its outcome."
Id. at 1210.
Id. (internal quotations omitted).
Plaintiffs have not attached any grievance forms to their complaint, therefore, the Court must determine whether they have described with particularity the administrative proceedings and its outcome. In their complaint, plaintiffs state: "Was only given two days of notice of violation but did file grievance to unit team; but did not get response in time . . ." This statement does not describe with specificity the administrative proceedings and its outcome; rather, the statement seems to indicate that plaintiffs did not exhaust their administrative remedies, and, instead, commenced suit. In any event, the statement is wholly inadequate to demonstrate exhaustion, and provides another basis for dismissal of plaintiffs' complaint. 3. Defendant KDOC is Entitled to Eleventh Amendment Immunity
The Court notes that ordinarily a dismissal for failure to exhaust administrative remedies is without prejudice. Ross v. County of Bernalillo, 365 F.3d 1181, 1189 (10th Cir. 2004). Nevertheless, an action may be dismissed with prejudice where a district court determines, after an examination on the merits, that absent exhaustion a party would nonetheless be unsuccessful in his case. Id. at 1188. The Court has already determined that dismissal of plaintiffs' complaint is appropriate for failure to adequately allege an actual injury; thus, the dismissal in this case is with prejudice.
Lastly, defendant KDOC urges that it is immune from plaintiffs' § 1983 suit.
The Court agrees. The Eleventh Amendment bars civil suits against the State of Kansas and its agencies. A state agency is entitled to immunity regardless of whether the plaintiff seeks monetary or injunctive relief. The KDOC is a state entity shielded by Eleventh Amendment immunity. The Court additionally notes that the KDOC is not a "person" subject to suit under § 1983. For these reasons, dismissal of defendant KDOC is proper.
Lee v. McManus, 589 F. Supp. 633, 637 (D. Kan. 1984) ("This district has long held that civil rights suits against the state of Kansas or one of its agencies are absolutely barred by the Eleventh Amendment.").
See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 58 (1996); Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1196 (10th Cir. 1998).
Love v. Hayden, 757 F. Supp. 1209, 1212 (D. Kan. 1991).
See Will v. Mich. Dep't of State Police, 491 U.S. 58, 64 (1989); McManus, 589 F. Supp. at 638 ("Actions commenced pursuant to 42 U.S.C. § 1983 cannot be brought against the State of Kansas or any state agencies since the state is not a person within the meaning of the Eleventh Amendment to the United States Constitution.").
Turning now to plaintiff Calderon's Motion for Reconsideration of the Court's order of dismissal, and bearing in mind the Court's detailed analysis of defendants' motion to dismiss, the Court concludes that it did not commit clear error in dismissing plaintiffs' case. Nor is reconsideration of the Court's order dismissing plaintiffs' case necessary to prevent manifest injustice. This is especially so as plaintiffs have yet to provide any response to defendants' motion to dismiss. The Court therefore denies plaintiff Calderon's request to reconsider its order.
IT IS THEREFORE ORDERED BY THE COURT that plaintiff's Motion to Reconsider (Doc. 33) is DENIED.
IT IS SO ORDERED.