Opinion
CIVIL ACTION NO. 02-2223-KHV
August 15, 2003
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 For The Court's Reconsideration Of The Court's Order dated June 18th, 2003 — In Favor Of The Defendant(s) "The Crawford County Attorney's Office Motion To Dismiss" (Doc. #159) filed June 24, 2003. For reasons set forth below, the Court overrules plaintiff's motion.
Factual Background
The Court has previously set forth the factual background which the Court incorporates by reference. See Memorandum And Order (Doc. #155) filed June 18, 2003.
Procedural Background
On May 14, 2002, plaintiff filed his complaint under 42 U.S.C. § 1983. 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, thus violating 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, thus violating 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 December 17, 2002, the Court dismissed Counts I through IV against the State of Kansas, the Crawford County Court Services Office, Glines and Pratt; it also 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.
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. Plaintiff also sought reconsideration of the Court's prior rulings and sanctions. On May 2, 2003, the County Attorney filed a motion to dismiss. On June 18, 2003, the Court sustained the County Attorney's motion to dismiss and overruled plaintiff's motions to enter default, to reconsider and for sanctions. See Memorandum And Order (Doc. #155).
On numerous grounds, plaintiff now seeks reconsideration of the Court's order of June 18.
Legal Standards
The Court has discretion whether to grant 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 the need to correct clear error or prevent manifest injustice. See Major v. Benton, 647 F.2d 110, 112 (10th Cir. 1981); Burnett v. W. 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), cert. denied, 506 U.S. 828 (1992).
The Court affords a pro se plaintiff some leniency and must liberally construe the complaint. See Oltremari v. Kan. Soc. Rehab. Serv., 871 F. Supp. 1331, 1333 (D.Kan. 1994). While pro se complaints are held to less stringent standards than pleadings drafted by lawyers, pro se litigants must follow the same procedural rules as other litigants. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992), cert. denied, 507 U.S. 940 (1993). The Court may not assume the role of advocate for a pro se litigant. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Analysis
On December 17, 2002, the Court noted that under D. Kan. Rule 7.1(c), plaintiff is entitled to only one opposition brief. See Memorandum And Order (Doc. #90) filed December 17, 2002 at 7 n. 5. In addition, on April 11, 2003, the Court noted that plaintiff had filed multiple briefs in opposition to defendant's motions and multiple reply briefs on his motions. The Court therefore directed that
[a]s to any future motions, plaintiff shall strictly comply with D. Kan. Rule 7.1(c), i.e. if he is the movant, he may file one memorandum in support of the motion and one reply brief; if he is opposing a motion, he may file one opposition brief. The Court will disregard any unauthorized briefs which are filed in the future without leave of court.
Memorandum And Order (Doc. #139) filed April 11, 2003.
As to his motion for reconsideration, plaintiff filed the following briefs: Plaintiff's Motion For The Court's Reconsideration Of The Court's Order Dated June 18th, 2003 — In Favor Of The Defendant(s) "The Crawford County Attorney's Office Motion To Dismiss" [And Supporting Memorandum] (Doc. #159) filed June 24, 2003; Plaintiff's Supporting Evidences (Doc. #160) filed June 24, 2003; Plaintiff's Supplimental [sic] Response To Defendant "The County Attorney's Office et. al's Untimely Motion To Dismiss Or Further Request To Answer Out Of Time" (Doc. #161) filed June 25, 2003; Plaintiff Clelland's Supplimental [sic] Filing In Support Of His Motion For the Court's Reconsideration Of Its Dismissal Order Of June 18th, 2003 (Doc. #162) filed June 30, 2003; Plaintiff's Supplimental [sic] Filing For Court Reconsideration in Case 02-2223-KHV — "Excusable Neglect Meritorious Defense(s) New Evidence" (Doc. #164) filed July 7, 2003; Plaintiff Clelland's Response To Defendant(s) Opposition To Reconsideration Filings (Doc. #167) filed July 18, 2003; and Plaintiff's Supplimental [sic] Filing For Reconsideration Further Based Upon "The Availability Of New Evidence(s)" (Doc. #169) filed July 18, 2003. The Court has reviewed all of these documents and finds that plaintiff's arguments either are without merit or are not material to the Court's order of June 18, 2003. Consistent with D. Kan. Rule 7.1(c) and the Court's prior instructions on the number of briefs, however, the Court will address only the arguments raised in plaintiff's original motion and supporting memorandum (Doc. #159) with attachments (Doc. #160) and his reply to defendant's opposition brief (Doc. #167). The Court summarily denies the arguments in plaintiff's remaining filings for failure to comply with D. Kan. Rule 7.1(c) and the Court's order of April 11, 2003.
I. Plaintiff's Additional Filings Not Addressed In The Court's Order Of June 18, 2003
Plaintiff argues that the Court's order of June 18 did not address several of his filings including (1) his motion for reconsideration of Judge O'Hara's order which overruled his request for appointment of counsel (Doc. #154 filed June 16, 2003); (2) his notification of misconduct by the attorney for Glines (Doc. #153 filed June 13, 2003); (3) his certificate of service dated June 18, 2003; and (4) his notification of document manipulations dated June 16, 2003.
A. Plaintiff's Motion For Reconsideration (Doc. #154)
On January 15, 2003, Magistrate Judge James P. O'Hara overruled plaintiff's request for appointment of counsel. See Order (Doc. #104). On June 16, 2003, two days before the Court ruled on the motion to dismiss of the County Attorney (the last remaining defendant), plaintiff filed a motion for reconsideration. Plaintiff's motion to reconsider was untimely. See D. Kan. Rule 7.3(b) (motion to reconsider non-dispositive order must be filed within 10 days of order). In addition, even if the Court had immediately appointed counsel when plaintiff filed his motion on June 16, 2003, the Court would have reached the same result on the motion to dismiss of the Crawford County Attorney. That motion was fully briefed by June 16. The Court did not err by failing to address plaintiff's motion to reconsider, which was not yet at issue, in its order of June 18, 2003.
B. Plaintiff's Notification Of Misconduct By The Attorney For Glines (Doc. #153)
On June 13, 2003, plaintiff filed a notification of misconduct by the legal representative of Glines. The alleged misconduct apparently relates to a comment by the assistant attorney general who has represented Glines in this case. The assistant attorney general apparently told the County Court Services Office that no employee should speak with plaintiff or deal directly with him but should instead refer plaintiff to counsel. Plaintiff's notification of misconduct (Doc. #153) is unsigned and should be disregarded on that ground alone. See Fed.R.Civ.P. 11(a). Moreover, the filing is unrelated to the flaws which the Court identified in plaintiff's complaint, i.e. as to Counts I and IV, he has not alleged personal participation of Glines and as to Counts II and III, he has not alleged a basis for federal subject matter jurisdiction. See Memorandum And Order (Doc. #155) at 8. Finally, based on the information which plaintiff has presented, the Court does not find any misconduct.
C. Plaintiff's Certificate Of Service Notification Of Document Manipulations
In his motion to reconsider, plaintiff argues that in its order of June 18, 2003, the Court should have considered his certificate of service dated June 18, 2003 and his notification of document manipulations dated June 16, 2003. The record does not reflect that plaintiff filed either document with the Court and plaintiff has not included them in his attachments to his motion for reconsideration. Because plaintiff has not shown that he filed either document or that the contents of such documents would justify reconsideration of the Court's order of June 18, the Court overrules plaintiff's motion for reconsideration on this ground.
II. Factual Statements In The Court's Order of June 18, 2003
Plaintiff challenges several of the factual statements which the Court included in its order of June 18. The Court finds that the factual statements are fully supported by the record and — to the extent any statement is incorrect or incomplete — the difference is not material to the Court's rulings.
For example, the Court stated by way of background that 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." Memorandum And Order (Doc. #155) at 6 n. 6. Plaintiff argues that the Court's statement was incorrect because he mailed his amended complaint to the "`County Attorney's Office — New Judicial Building — Pittsburg, Kansas' with specific directions [to] `authorized individuals.'" Plaintiff's Motion To Reconsider (Doc. #159) at 15.
Plaintiff argues that the factual inaccuracies are evidence of the Court's bias and prejudice in favor of defendants. See Plaintiff's Motion To Reconsider (Doc. #159) at 4. The Court liberally treats plaintiff's argument as a request for recusal under 28 U.S.C. § 144 and 455(a).
The Court exercises discretion in deciding whether to recuse. See Weatherhead v. Globe Int'l, Inc., 832 F.2d 1226, 1227 (10th Cir. 1987). Section 144 provides that
[w]henever a party to any proceeding in district court makes and files a timely affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceedings.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.28 U.S.C. § 144. Plaintiff has not filed an affidavit in compliance with Section 144. In addition, plaintiff's allegation of bias is based purely on his disagreement with the Court's rulings. The unsworn allegations in plaintiff's motion to reconsider are insufficient to require recusal under Section 144. See Glass v. Pfeffer, 849 F.2d 1261, 1267-68 (10th Cir. 1988).
Likewise, plaintiff has not shown a proper basis for recusal under Section 455(a). That statute requires a judge to recuse "in any proceeding in which [her] impartiality might reasonably be questioned." 28 U.S.C. § 455(a). The judge's subjective state of mind is irrelevant. See United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993). The test is objective: "whether a reasonable person, knowing all the relevant facts, would harbor doubts about the judge's impartiality." Id. (further quotations omitted). Here, plaintiff essentially argues that adverse rulings demonstrate bias. Adverse rulings, however, are not a sufficient basis for recusal. See id. at 994; see also Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987) (judge should not recuse on unsupported, irrational or highly tenuous speculation). Plaintiff alleges no facts which suggest that a reasonable person would question the impartiality of the undersigned judge. Recusal under Section 455(a) is therefore inappropriate.
III. New Evidence
Plaintiff argues that he has new evidence based on statements by the acting county attorney, John Gutierrez. Plaintiff maintains that Gutierrez told him that "numerous issues concerning Clelland were `wrong' and he would personally investigate the matters" — including this case. Plaintiff's Motion To Reconsider (Doc. #159) at 5. Initially, the Court rejects plaintiff's request for reconsideration because the alleged statements are hearsay. More importantly, plaintiff has not shown how the alleged statements relate to the Court's rulings in its order of June 18, 2003.
Plaintiff also argues that Gutierrez, not the former county attorney, must file an answer in this case. See id. Plaintiff's argument is without merit. On May 2, 2003, Gutierrez filed a motion to dismiss which the Court sustained in its order of June 18, 2003.
IV. Default
Plaintiff argues that the Court erred by excusing the county attorney's failure to timely answer and his subsequent failure to file a proposed answer by the Court's deadline of April 21, 2003. Plaintiff maintains that the Court should have viewed defendant's failure to comply "in a light most favorable to the plaintiff." Plaintiff's Motion To Reconsider (Doc. #159) at 7. Plaintiff has cited the standard for a summary judgment motion filed by a defendant. In a prior order, the Court cited the relevant legal standards for setting aside an entry of default. See Memorandum And Order (Doc. #139) filed April 11, 2003 at 6-8; see also Memorandum And Order (Doc. #155) at 7 n. 7. Plaintiff has not shown that the Court erred in applying these standards to his case.
Plaintiff also complains that the Clerk had a mandatory duty to enter default based on the County Attorney's failure to answer or respond by the Court-imposed deadline of April 21, 2003. In its previous order, the Court explained that even if the Clerk had done so, the Court would have set aside the default. See Memorandum And Order (Doc. #155) at 6-7. Accordingly, the Clerk's alleged failure to immediately enter default did not prejudice plaintiff and does not justify reconsideration of the Court's order of June 18.
V. Plaintiff's Response to Defendant's Motion To Dismiss
Plaintiff argues that the Court should not have considered defendant's motion to dismiss as uncontested because he filed a response on May 14, 2003. The official court file does not reflect that plaintiff filed any such response. Plaintiff has produced a document with a file stamp dated May 14, 2003, but he does not fully explain who stamped the document and under what circumstances. Furthermore, even if the Court considered the response which plaintiff purportedly filed on May 14, the Court would reach the same result. As explained in the order of June 18, the Court sustained defendant's motion to dismiss because it was uncontested "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." Memorandum And Order (Doc. #155) at 8. The Court therefore overrules plaintiff's motion to reconsider on this ground.
VI. Ruling On Plaintiff's Motion To Reconsider
Plaintiff argues that the Court erred by failing to sustain his prior motion to reconsider. On June 18, 2003, the Court ruled as follows:
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 County Attorney's Office.
Memorandum And Order (Doc. #155) at 8. Plaintiff argues that despite the date on his new criminal history report, he did not receive it until shortly before he filed his motion for reconsideration. Even if the Court assumes that plaintiff's statement is correct, he has not shown how the new criminal history report cures the defect in his amended complaint or establishes personal participation by Glines or the County Attorney's Office. Accordingly, plaintiff's motion to reconsider the Court's ruling on his prior motion to reconsider is overruled.
VII. Ruling On Plaintiff's Motion For Sanctions
Plaintiff argues that the Court erred by overruling his motion for sanctions. For reasons stated in the order of June 18, the Court disagrees and overrules plaintiff's motion to reconsider on this ground. See Memorandum And Order (Doc. #155) at 9.
IT IS THEREFORE ORDERED that Plaintiff's Motion For The Court's Reconsideration Of The Court's Order dated June 18th, 2003 — In Favor Of The Defendant(s) "The Crawford County Attorney's Office Motion To Dismiss" (Doc. #159) filed June 24, 2003 be and hereby is OVERRULED.