Opinion
CIVIL ACTION No. 02-2223-KHV
June 18, 2003
MEMORANDUM AND ORDER
Thomas Clelland, pro se, brings suit under 42 U.S.C. § 1983 against the State of Kansas, the Crawford County Court Services Office, the Crawford County Attorney's Office, Jeff Glines and James Pratt. Plaintiff alleges that defendants provided inadequate medical care during his incarceration at the Crawford County jail; that they acted in bad faith in negotiating his plea agreement; that in order to revoke his probation, they intentionally deceived him regarding the results of his urinalysis test; and that they continue to maintain and report inaccurate information on his criminal history. This matter is before the Court on Plaintiff's Motion Request For A Second Default To Be Entered Against The Defendant The Crawford County Attorney's Office For Failure To Answer In Time (Doc. #142) filed April 29, 2003; the Motion To Dismiss (Doc. #144) filed May 2, 2003 by the Crawford County Attorney' Office; Plaintiff's Notification Of New Evidence(s) And Request For Reconsiderations (Doc. #147) filed May 15, 2003; and Plaintiff's Notification Of Further Misconduct(s) Concerning Process Service And Motion For Judicial Action(s) Including Judgment In Favor Of The Plaintiff Clelland (Doc. #149) filed May 29, 2003, which the Court construes as a motion for sanctions. For reasons set forth below, the Crawford County Attorney's motion to dismiss is sustained and plaintiff's motions are overruled.
Factual Background
Plaintiff's amended complaint, as supplemented by his Memorandum In Support Of Amended Complaint (Doc. #33) filed July 31, 2002, alleges the following facts:
To provide context for plaintiff's allegations, the Court has considered the exhibits to defendants' Memorandum In Support Of Motion To Dismiss By Defendant State Of Kansas, Jeff Glines, Court Services Officer, And The Crawford County Kansas Court Services Office ("Defendants' Memorandum") (Doc. #75) filed September 27, 2002. Many of these exhibits are complete copies of excerpts which plaintiff has attached to various filings.
On July 2, 1998, plaintiff was convicted of possession of methamphetamine in the District Court of Crawford County, Kansas. See Crawford County Case No. 97CR379G. The court sentenced plaintiff to probation for 24 months. Less than three months later, on September 25, 1998, plaintiff was arrested for possession of drug paraphernalia, driving under the influence ("DUI") and possession of marijuana. For 80 days, plaintiff was held without bond in the Crawford County jail. During or shortly before his incarceration, plaintiff suffered a heart attack. Defendants did not provide "acceptable medical treatment" for plaintiff's heart condition, and they denied his access to medical records. Plaintiff was released from custody on December 14, 1998.
On June 3, 1999, in exchange for the State's agreement to dismiss the DUI and marijuana possession charges, plaintiff entered a plea of no contest to attempted possession of drug paraphernalia. See Crawford County Case No. 98CR433G. The court sentenced plaintiff to time served (80 days in jail) and 24 months of probation under the supervision of the Crawford County Court Services Office, to run consecutively to his remaining term of probation in Case No. 97CR379G. Plaintiff asserts that the State used non-existent evidence to secure his plea and judicial approval of the plea agreement.
On February 5, 2000, plaintiff was arrested for DUI and assault. Steve Stockard, Assistant Crawford County Attorney, therefore filed a motion to revoke plaintiff's probation in both criminal cases on February 15, 2000. See Exhibit 6 to Defendants' Memorandum (Doc. #75). Stockard's motion included an affidavit of Jeff Glines, a Court Services Officer. The court appointed counsel for plaintiff in March of 2000, and scheduled a probation revocation hearing in both cases for May 22, 2000.
On May 15, 2000, Glines asked plaintiff to undergo a urinalysis test. Plaintiff agreed and Glines informed him that he had tested positive for methamphetamine. Plaintiff tried to have an independent physician test the sample, but he did not receive the results before his hearing on May 22, 2000. Glines had asked someone at the doctor's office to withhold plaintiff's negative test results until after the revocation hearing. Plaintiff asked his attorney to seek a continuance, but his attorney suggested that he stipulate to the test results to avoid significant prison time. Accordingly, on May 22, 2000, plaintiff stipulated that he had tested positive for methamphetamine. Based on the stipulation, the court revoked plaintiff's probation with the Court Services Office and placed plaintiff on 24 months probation with the Community Corrections Office. On May 23 and 24, 2000, plaintiff received negative test results from his doctor.
Plaintiff apparently claims that he had a positive test result because he was taking certain medication, or that factors other than methamphetamine caused his positive test result.
On May 14, 2002, plaintiff filed his complaint under 42 U.S.C. § 1983. In his amended complaint, plaintiff alleges that defendants provided inadequate medical care during his incarceration in 1998 (Count I); that they acted in bad faith in negotiating the plea agreement of June 3, 1999, which violated his rights to equal protection and due process (Count II); that they intentionally deceived him as to the results of his urinalysis on May 15, 2000, which violated his rights to equal protection and due process (Count III); and that they continue to maintain and report inaccurate information on his criminal history (Count IV).
On May 14, 2002, plaintiff sought leave to file his original complaint by fax. The Clerk docketed the complaint (Doc. #1), but Magistrate Judge James P. O'Hara denied without prejudice plaintiff's motion to file by fax. See Order (Doc. #7) filed June 3, 2002. Judge O'Hara ruled that plaintiff could reassert his motion if and when defendants asserted a statute of limitations defense. See id. at 3. On May 15, 2002, plaintiff's counsel, an attorney who was not admitted to practice in the District of Kansas, filed a complaint with her original signature. See Complaint With Jury Demand (Doc. #3). The Court, however, overruled her motion to appear pro hac vice. See Order (Doc. #6) filed May 21, 2002. Plaintiff did not attempt to re-file his complaint in compliance with the local rules. At a telephone conference, plaintiff announced that he wanted to proceed pro se. Accordingly, local counsel for plaintiff, who had filed the motion for counsel to appear pro hac vice but had not signed either the original complaint or the complaint dated May 15 (Docs. #1, 3), moved to withdraw. On July 10, 2002, Judge O'Hara granted the motion. See Order (Doc. #13). Plaintiff did not correct the deficiencies in his original complaint or the complaint dated May 15 until July 31, 2002, when he filed an amended complaint. See Plaintiff's Amended Complaint With Jury Demand (Doc. #32) filed July 31, 2002. Because defendants had filed responsive pleadings and plaintiff had not secured leave to file an amended complaint, Judge O'Hara struck plaintiff's amended complaint pending briefing on his motion to amend. See Order (Doc. #43) filed August 7, 2002. Finally, on September 4, 2002, Judge O'Hara granted plaintiff leave to file an amended complaint and directed the Clerk to re-file the amended complaint dated July 31 which the Court had previously stricken. See Order (Doc. #62).
The caption of the amended complaint names James Pratt as a defendant, but it does not identify his specific involvement in these events. Plaintiff states that Pratt was a state-appointed special prosecutor for the probation revocation hearing in May, 2000. See Plaintiff's Response To Defendant Pratt's Motion To Dismiss Plaintiff's Amended Complaint And Plaintiff's Response To Defendant Pratt's Answer To Plaintiff's Amended Complaint (Doc. #81) filed October 7, 2002 at 4.
On December 17, 2002, the Court dismissed Counts I through IV against the State of Kansas, the Crawford County Court Services Office, Glines and Pratt, and dismissed Counts II and III against the Crawford County Attorney's Office ("County Attorney's Office"). See Memorandum And Order (Doc. #90) at 15. As to Counts I and IV against the County Attorney's Office, the Court ordered plaintiff to show cause why the claims should not be dismissed. See id. at 15-16. On January 29, 2003, the Court found that plaintiff had shown good cause why those claims should not be dismissed. See Memorandum And Order (Doc. #108) at 4-5. The Court ordered plaintiff to (1) file evidence that service by certified mail was completed on the County Attorney's Office or (2) show good cause in writing why service of the summons and complaint had not been made on the County Attorney's Office within 120 days from the filing of the complaint, and further show good cause in writing why plaintiff's claims against the County Attorney's Office should not be dismissed without prejudice. See id. at 5-8. Plaintiff filed a return of service which reflected that the County Attorney's Office was served by certified mail on August 19, 2002. See Plaintiff's Reply To Defendant Pratt's Opposition For Certification (Doc. #107) filed January 28, 2003. Because the County Attorney's Office had failed to plead or otherwise defend, the Court directed the Clerk to enter default against that defendant under Rule 55(a), Fed.R.Civ.P. See Order (Doc. #109) filed January 30, 2003.
On February 12, 2003, the County Attorney's Office filed a motion to set aside the default and for leave to file an answer out of time. The County Attorney's Office asserted that it never received service of process. It argued that the individual who signed the certified mail receipt, Polly Bruce, works part time in the Crawford County District Court Clerk's Office ("County Court Clerk's Office") and that neither that individual nor the County Court Clerk's Office is authorized to accept service of process for the County Attorney. On April 11, 2003, the Court sustained the County Attorney's motion to set aside the default and answer out of time. See Memorandum And Order (Doc. #139). The Court ordered the County Attorney's Office to file an answer on or before April 21, 2003. See id. at 11.
Julie Richey was the County Attorney when plaintiff filed suit. She resigned on February 20, 2003 and John Gutierrez is the current County Attorney. See Notice Of Resignation And Succession In Office (Doc. #127) filed February 28, 2003.
Plaintiff attempted to serve the County Attorney's Office by sending a summons and complaint by certified mail to the "Judicial Building" in Pittsburg, Kansas. Bruce received and signed for that mailing. Bruce is not an employee of Richey or the County Attorney's Office. Neither Bruce nor the County Court Clerk's Office has been appointed to receive service of process for Richey.
The County Attorney did not file an answer by the April 21 deadline. On April 29, 2003, plaintiff filed a motion for the Court to enter default based on the County Attorney's failure to answer. On May 2, 2003, the County Attorney filed a motion to dismiss. Plaintiff also seeks reconsideration of the Court's prior rulings and sanctions.
Analysis
I. Plaintiff's Motion For Entry Of Default (Doc. #142)
Plaintiff asks the Court to enter default based on the County Attorney's failure to answer or respond by the Court-imposed deadline of April 21, 2003. The Clerk did not enter default based on the County Attorney's failure to timely answer and the Court finds that default would not be appropriate against the County Attorney. The County Attorney notes that her motion for leave to file an answer out of time (Doc. #114) filed in February of 2003, included a proposed answer, and counsel therefore believed that the County Attorney had already complied with the Court order to file an answer by April 21, 2003. D. Kan. Rule 15.1(b) previously provided that "[i]f the Court grants the motion for leave to file, the clerk shall detach and file the original proposed pleading, and it will be deemed filed as of the date of the filing of the order granting the motion, unless the order otherwise provides." On March 20, 2003, because electronic filing had been implemented in the District of Kansas, Rule 15.1 was amended to provide that "[i]f the court grants the motion, the moving party shall file and serve the pleading within 10 days of the court's order granting the motion." Despite the Court's order for the County Attorney to file an answer, the County Attorney relied on the previous version of Rule 15.1 which was in effect when she filed her motion for leave to file an answer out of time. In these circumstances, the Court finds that the County Attorney had a good faith mistaken belief that the clerk would file the proposed answer attached to the motion.
In the analogous situation where a party fails to file an answer at all, courts recognize that a good faith mistaken belief regarding procedural questions is not culpable conduct. See Van Deelen v. Ramirez, 2001 WL 789275, at *8-9 (D.Kan. May 1, 2001); Ledbetter v. Kan. Dep't Soc. Rehab. Servs., 2000 WL 206208 (D.Kan. Jan. 3, 2000); Fink v. Swisshelm, 185 F.R.D. 353, 357 (D.Kan. 1999); Freeze-Dry Prods., Inc. v. Metro Park Warehouse, Inc., 160 F.R.D. 156 (D.Kan. 1995).
Plaintiff has not shown any prejudice based on the County Attorney's failure to precisely follow the Court's order. Plaintiff does not dispute that he received a copy of defendant's answer in February of 2003. Moreover, shortly after the Court-imposed deadline, the County Attorney filed a motion to dismiss and a response to plaintiff's motion. The Court finds that plaintiff will not be materially prejudiced if the Court considers the County Attorney's motion to dismiss.
The County Attorney has presented a meritorious defense to plaintiff's complaint. Indeed, the Court finds that the County Attorney's motion to dismiss should be sustained on several independent grounds.
For these reasons, the Court overrules plaintiff's motion for entry of default against the Crawford County Attorney's Office.
II. Crawford County Attorney's Motion To Dismiss (Doc. #144)
The County Attorney filed a motion to dismiss on May 2, 2003. Pursuant to D. Kan. Rule 6.1(e)(2) and Fed.R.Civ.P. 6(a), plaintiff had until May 27, 2003 to file a response. To date, plaintiff has not responded to the merits of the motion to dismiss. Pursuant to D. Kan. Rule 7.4, "[i]f a respondent fails to file a response within the time required by Rule 6.1(e), [or as extended by the court,] the motion will be considered and decided as an uncontested motion, and ordinarily will be granted without further notice." For this reason and for substantially the reasons stated in the Memorandum In Support Of Crawford County Attorney's Motion To Dismiss (Doc. #145) filed May 2, 2003, the Court sustains the Crawford County Attorney's motion to dismiss for lack of subject matter and personal jurisdiction, insufficiency of process and service of process, and failure to state a claim on which relief could be granted.
III. Plaintiff's Motion To Reconsider (Doc. #147)
Based on plaintiff's criminal history report by Gall Gall Company, Inc. on January 21, 2003, plaintiff asks the Court to reconsider its decision to dismiss Count IV against Glines and the County Attorney. On December 17, 2002, the Court sustained the motion to dismiss Glines because Count I did not allege his personal participation or a factual basis for tolling the applicable statute of limitations; because Counts II and III did not allege a basis for federal subject matter jurisdiction; and because Count IV did not allege personal participation by Glines. The new criminal history report does not cure the defect in plaintiff's amended complaint or establish personal participation by Glines or the Crawford County Attorney's Office in reporting any inaccuracy in plaintiff's criminal history. Moreover, plaintiff apparently had the new criminal report in January of 2003 but he waited nearly four months before bringing his motion to reconsider. See D. Kan. Rule 7.3. For these reasons, plaintiff's motion to reconsider is overruled.
At the time plaintiff filed his motion to reconsider, Count IV was still pending against the Crawford County Attorney's Office.
IV. Plaintiff's Motion For Sanctions (Doc. #149)
Plaintiff has submitted a preliminary opinion of a certified forensic document examiner who opines that the signature on the certified mail receipt (for service of the summons and complaint on the Crawford County Attorney's Office) is probably not the genuine signature of Polly Bruce. Even if the Court assumes that Bruce did not sign the certified mail receipt, plaintiff has not shown that he properly accomplished service of process on the County Attorney. In addition, neither plaintiff nor the document examiner explain who actually signed the certified mail receipt or why such an individual would have forged Bruce's signature. Plaintiff's suspicion that someone in the County Attorney's Office was involved is insufficient to warrant sanctions. In sum, plaintiff has not shown that the Court should sanction the Crawford County Attorney's Office for the alleged actions of an unknown individual.
IT IS THEREFORE ORDERED that Plaintiff's Motion Request For A Second Default To Be Entered Against The Defendant The Crawford County Attorney's Office For Failure To Answer In Time (Doc. #142) filed April 29, 2003 be and hereby is OVERRULED.
IT IS FURTHER ORDERED that the Motion To Dismiss (Doc. #144) filed May 2, 2003 by the Crawford County Attorney's Office be and hereby is SUSTAINED.
IT IS FURTHER ORDERED that Plaintiff's Notification Of New Evidence(s) And Request For Reconsiderations (Doc. #147) filed May 15, 2003 be and hereby is OVERRULED.
IT IS FURTHER ORDERED that Plaintiff's Notification Of Further Misconduct(s) Concerning Process Service And Motion For Judicial Action(s) Including Judgment In Favor Of The Plaintiff Clelland (Doc. #149) filed May 29, 2003 be and hereby is OVERRULED.
IT IS FURTHER ORDERED that the Clerk shall enter final judgment as to all defendants.