Opinion
No. 98-3230-KHV
November 17, 2000
MEMORANDUM AND ORDER
Kenneth Jackson brings suit under 42 U.S.C. § 1983 alleging that Charles Simmons, David R. McCune, Cindy Derrick, Kurt Holthaus, Terry Smith and Charlene Jackson violated his constitutional rights by withholding good time credits and reducing his inmate incentive level because he refused to participate in the Sex Abuse Treatment Program ("SATP") at the Lansing Correctional Facility. This matter comes before the Court on defendants' amended arguments regarding qualified immunity with respect to Defendants' Motion For Summary Judgment (Doc. #28) filed September 16, 1999, and the Motion To File Out Of Time Plaintiff's Plaintiff's [sic] Motion For Reargument (Doc. #57) which plaintiff filed October 6, 2000.
I. Qualified Immunity
On September 22, 2000, the Court entered an order which, inter alia, sustained defendants' motion for leave to amend their summary judgment motion to include arguments regarding qualified immunity on plaintiff's Fifth Amendment claim. See Memorandum and Order (Doc. #56) filed September 22, 2000, at 18. It allowed plaintiff 30 days to respond. See id. Plaintiff responds that the Court should not allow defendants to amend their motion because they have not demonstrated excusable neglect. See Plaintiff's Response In Opposition To Defendant's Motion To Amend Their Motion For Summary Judgment ("Plaintiff's Response") (Doc. #59) filed October 12, 2000, at 2-4. Because the Court has already granted defendants leave to amend, it will construe plaintiff's response as a request to reconsider its ruling.
The Court has discretion whether to grant or deny a motion to reconsider. See Hancock v. City of Okla. City, 857 F.2d 1394, 1395 (10th Cir. 1988). The Court may recognize any one of three grounds justifying reconsideration: an intervening change in controlling law, availability of new evidence, or a need to correct clear error or prevent manifest injustice. See Major v. Benton, 647 F.2d 110, 112 (10th Cir. 1981); Burnett v. Western Res., Inc., 929 F. Supp. 1349, 1360 (D.Kan. 1996). A motion to reconsider is not a second opportunity for the losing party to make its strongest case, to rehash arguments or to dress up arguments that previously failed. See Voelkel v. Gen. Motors Corp., 846 F. Supp. 1482, 1483 (D.Kan.), aff'd, 43 F.3d 1484 (10th Cir. 1994). Such motions are not appropriate if the movant only wants the Court to revisit issues already addressed or to hear new arguments or supporting facts that could have been presented originally. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991).
D. Kan. Rule 7.3(b) governs motions seeking reconsideration of non-dispositive orders.
Plaintiff has not demonstrated grounds which warrant reconsideration. At most, he argues that defense counsel should have made the qualified immunity argument in the initial motion and that inadvertence or mistake is not sufficient to allow the amendment. See Plaintiff's Response at 2-4. The Court notes, however, that defendants affirmatively set forth the qualified immunity defense in their answer pursuant to Rule 8(c), Fed.R.Civ.P. See Answer (Doc. #24) filed August 5, 1999, at 5. Thus plaintiff cannot claim prejudice or unfair surprise by the amended argument. See, e.g., Howes v. Hitchcock, 66 F. Supp.2d 203, 210 (D.Mass. 1999) (critical inquiry in deciding waiver of qualified immunity defense is whether defendants' timing in raising defense prejudices plaintiff by depriving him of sufficient notice of the argument). Moreover, because the Court has not yet set a deadline for dispositive motions, nothing would prevent defendants from filing a second motion for summary judgment based on qualified immunity at this time. See, e.g., English v. Dyke, 23 F.3d 1086, 1090 (6th Cir. 1994) (finding no waiver of qualified immunity defense where defendants did not make post-answer motion after court imposed deadline and court did not find any undue delay by defendants). Accordingly, the Court will not alter its order allowing the amendment.
Plaintiff also argues that defendants are not entitled to qualified immunity. See Plaintiff's Response at 4-10. In order to defeat the qualified immunity claim, plaintiff must "come forward with facts or allegations sufficient to show both that the defendants' alleged conduct violated the law and that that law was clearly established when the alleged violation occurred." Pueblo Neighborhood Health Ctrs, Inc. v. Losavio, 847 F.2d 642, 646 (10th Cir. 1988); see also Dixon v. Richer, 922 F.2d 1456, 1460 (10th Cir. 1991). Ordinarily, in order for plaintiff to demonstrate that a law is clearly established, "there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Medina v. City County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992); see also Anderson v. Creighton, 483 U.S. 635, 640 (1987) (right is clearly established if the contours of right are sufficiently clear so that reasonable official would understand that what he is doing violates that right).
Plaintiff asserts that the law was clearly established at the time of defendants' alleged conduct. The Court disagrees. Prior to the recent Tenth Circuit decision in Lile v. McKune, 224 F.3d 1175 (10th Cir. Sept. 5, 2000), no Tenth Circuit or Supreme Court decisions addressed the issue presented: whether the SATP or a similar sexual offender treatment program violates an inmate's right against self-incrimination under the Fifth Amendment. Furthermore, the weight of authority from other courts had not clearly established the law as plaintiff maintains. Indeed, the courts in the District of Kansas had reached differing conclusions regarding whether the SATP violated the Fifth Amendment. Compare Lile v. McKune, 24 F. Supp.2d 1152, 1160 (D.Kan. 1998) (SATP violates Fifth Amendment) with Searcy v. Simmons, 97 F. Supp.2d 1055, 1058-59 (D.Kan. 2000) (SATP does not violate Fifth Amendment) and Reed v. McKune, No. 98-3418-JWL, 2000 WL 1278488, at **7-8 (D.Kan. July 17, 2000) (same). The Court is therefore convinced that the law was not clearly established at the time of defendants' alleged conduct. Plaintiff has not shown otherwise. Defendants are therefore entitled to qualified immunity on plaintiff's Fifth Amendment claim against them in their individual capacities.
Defendants' alleged conduct occurred from 1997 through 1999.
In its previous order, the Court found that plaintiff's prior state court action precluded him from re-litigating issues against defendants in their official capacities. Upon further reflection, the Court finds that the Tenth Circuit decision in Lile constitutes a significant intervening change in the law which merits an exception to the usual application of issue preclusion. See, e.g., Montana v. United States, 440 U.S. 147, 160 (1979) (prior state judgment precluded suit where there was no significant change in legal climate) (citing Comm'r of Internal Revenue v. Sunnen, 333 U.S. 591, 606 (1948)); Spradling v. City of Tulsa, 198 F.3d 1219, 1223 (10th Cir. 2000) (claim and issue preclusion inapplicable where intervening change in law occurs). Thus the Court concludes that the prior state court action does not preclude plaintiff from seeking prospective injunctive relief on his Fifth Amendment claim against defendants in their official capacities.
The Court also entered summary judgment in favor of defendants on plaintiff's First, Fourth and Fourteenth Amendment claims and his claim that Internal Management Policy and Procedure 11-101 ("IMPP 11-101") is invalid under Kansas law. See Memorandum and Order (Doc. #56) at 4-18. Defendant's motion did not address plaintiff's claims for property conversion and ex post facto application of K.A.R. § 44-6-146(6), so those claims remain in the case along with the Fifth Amendment claim. See id. at 3 n. 5, 17.
II. Plaintiff's Motion For Reargument
The Court is unable to discern the purpose of the Motion To File Out Of Time Plaintiff's Plaintiff's [sic] Motion For Reargument ("Motion To File Out Of Time") (Doc. #57) which plaintiff filed October 6, 2000. Although his motion is captioned as a motion for leave to file a "motion for reargument," it appears that he requests leave to file a response to defendants' answer. Plaintiff states that he inadvertently failed to file his "answer" to defendants' answer and that his "response to defendants [sic] answer included the required denials along with exhibits to bolster plaintiff's answer that would have satisfied the court's questions [in its summary judgment ruling] and included the necessary laws that were in effect at the time of defendant's violations." Motion To File Out Of Time at 1-2. On the very day on which he filed the motion, plaintiff filed a response to defendants' answer. See Plaintiff's Response To Defendant's Answer (Doc. # 58) filed October 6, 2000. Rule 7(a), Fed.R.Civ.P., allows the following pleadings in a case: complaint, answer, reply to counterclaim, answer to cross-claim, third-party complaint and third-party answer. The rule provides that "[n]o other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer." Rule 7(a), Fed.R.Civ.P. The Court has not ordered plaintiff to reply to defendants' answer. Thus it is unnecessary for plaintiff to file a response to the answer and the Court will strike the superfluous pleading.
Plaintiff has not submitted or filed a proposed "motion for reargument."
To the extent plaintiff asks the Court to treat his response to the answer as a motion to reconsider its summary judgment ruling, the Court declines the request. At most, plaintiff repeats arguments which he made or could have made in his opposition to the summary judgment motion. He has not shown an intervening change in controlling law, availability of new evidence or the need to correct clear error or prevent manifest injustice. See Major, 647 F.2d at 112; Burnett, 929 F. Supp. at 1360.
Finally, the Court observes plaintiff's statement that "[i]n the alternative the plaintiff could lable [sic] and file his answer to the defendant's answer as a motion for summary judgment." Motion To File Out Of Time at 3. Plaintiff, however, has now filed a motion for summary judgment. See Plaintiff's Motion For Summary Judgment (Doc. #60) filed October 31, 2000. The Court assumes that he has included the relevant arguments and evidence in that motion. Accordingly, the Court will overrule plaintiff's Motion To File Out Of Time.
IT IS THEREFORE ORDERED that defendants' amended arguments to Defendants' Motion For Summary Judgment (Doc. #28) filed September 16, 1999 regarding qualified immunity on plaintiff's Fifth Amendment claim be and hereby are SUSTAINED. The Court enters judgment in favor of defendants in their individual capacities on plaintiff's claim that defendants violated his rights under the Fifth Amendment.
IT IS FURTHER ORDERED that the state court ruling in Jackson v. Simmons, Case No. 9903CV126, does not preclude plaintiff from seeking prospective injunctive relief on his Fifth Amendment claim against defendants in their official capacities.
IT IS FURTHER ORDERED that the Motion To File Out Of Time Plaintiff's Plaintiff's [sic] Motion For Reargument (Doc. #57) which plaintiff filed October 6, 2000 be and hereby is OVERRULED.
IT IS FURTHER ORDERED that Plaintiff's Response To Defendant's Answer (Doc. # 58) filed October 6, 2000 be and hereby is STRICKEN. The Court directs the Clerk to strike the pleading from the Court record.
NOTE: In Lile, the Tenth Circuit found that plaintiff's Fourth Amendment claim was moot in light of its ruling on the Fifth Amendment claim. Likewise, in Johnston v. Simmons, Case No. 99-3193, 2000 WL 1629971, *5 (10th Cir. 2000), the appellate court found that its ruling on the Fifth Amendment claim rendered it unnecessary to reach plaintiff's claims of ex post facto violation, freedom of speech; deprivation of liberty, and denial of due process. See id. at *6 (vacating the portion of the district court's judgment relating to those issues and remanding to the district court with instructions to dismiss as moot all but the Fifth Amendment claim). I do not understand the Tenth Circuit's rationale in this regard. To some extent, I suppose if the SATP is unconstitutional on one ground, defendants must stop the practice regardless whether it is unconstitutional on other grounds. On the other hand, the Lile court found that the State can fix the Fifth Amendment problem by granting immunity to the inmates' statements or making the statements privileged. If the State makes those changes ( which is hypothetical at this point), we still do not know whether the SATP is constitutional on other grounds. More importantly, though, I think the decision does not make sense from the standpoint of damages. Wouldn't plaintiff in theory be entitled to damages for each constitutional violation. Also, defendants may be entitled to qualified immunity on some of the claims, but not others.
It appears that plaintiff in Johnston sought only injunctive and declaratory relief. I cannot determine the relief sought in Lile, but perhaps that is the distinction there as well. Since our plaintiff requests damages, perhaps that is the distinguishing factor.
In our case, I am concerned whether the Tenth Circuit decisions require us to dismiss plaintiff's ex post fact claim as moot. (We found in our previous ruling that defendant's motion for summary judgment did not address this claim). In addition, maybe we should not have made the previous summary judgment rulings on plaintiff's First, Fourth and Fourteenth Amendment claims and just dismissed them as moot. Perhaps we should discuss this further?