Opinion
CIVIL ACTION No. 02-2223-KHV
April 11, 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 the Motion Of Crawford County Attorney Julie Richey To: (1) Set Aside Default And (2) Answer Out Of Time[;] And Supporting Memorandum (Doc. #114) filed February 12, 2003; Plaintiff's Motion For Default Judgment (Doc. #113) filed February 10, 2003; and Plaintiff's Motion To Reconsider Dismissing Plaintiff's Claims Against Defendant(s) Pratt And/Or Glines (Doc. #115) filed February 13, 2003. For reasons set forth below, the Crawford County Attorney's motion to set aside default and answer out of time is sustained and plaintiff's motions are overruled.
Plaintiff filed multiple briefs in opposition to the motion to set aside default and answer out of time. As best the Court can ascertain, all or part of the following documents consist of plaintiff's opposition: Docs. #119, 120 (in part), 122, 125, 131 (in part), 133, 135, 137 (in part) and 138. Plaintiff also filed multiple reply briefs in support of his motion to reconsider. See Docs. #120 (in part), 130, 131 (in part) and 137 (in part). The Court previously 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. As 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.
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 get back the results before his hearing on May 22, 2000. 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. Glines had asked someone at the doctor's office to withhold plaintiff's negative test results until after the probation revocation hearing on May 22, 2000.
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 his probation revocation hearing in May of 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. The Court has further considered Plaintiff's Further Notification To The Court Of Available "New Evidence" In Support Of Plaintiff's Complaint And Motion For Scheduling-Planning (Doc. #78) filed October 8, 2002, which provides additional information as to Pratt. In this filing, plaintiff alleges that Pratt may have had personal ties with someone at the County Attorney's Office and that Pratt failed to perform his function as special prosecutor. See id. at 2-3. Plaintiff states that an unknown individual at the County Attorney's Office "privately" retained and compensated Pratt to handle the case, and did not hire Pratt as a special prosecutor for the State of Kansas. See id. at 2. Because the amended complaint alleges wrongful conduct as to actions by Pratt after he was appointed special prosecutor, the circumstances surrounding Pratt's initial hiring are immaterial to the motions to dismiss.
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 asserts that it never received service of process. It argues that the individual who signed the certified mail receipt 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. Plaintiff asserts that service was proper and that the Court should enter default judgment. Plaintiff also seeks reconsideration of the Court's prior rulings as to Glines and Pratt.
Analysis
I. Defendant's Motion To Set Aside Entry Of Default
The Court applies the same considerations when deciding whether to set aside either an entry of default or a default judgment, but they are applied more liberally when reviewing an entry of default. See Berthelsen v. Kane, 907 F.2d 617, 620 (6th Cir. 1990). The good cause required by Rule 55(c), Fed.R.Civ.P., for setting aside an entry of default poses a lesser standard for the defaulting party than the excusable neglect which must be shown for relief from judgment under Rule 60(b). See Dennis Garberg Assocs., Inc. v. Pack-Tech Int'l Corp., 115 F.3d 767, 775 n. 6 (10th Cir. 1997) (citing Meehan v. Snow, 652 F.2d 274, 276 (2d Cir. 1981)). Thus, while the Court may set aside the entry of default under Rule 55(c) for "good cause," the principal factors in determining whether defendant has met the good cause standard are (1) whether the default resulted from culpable conduct by defendant, (2) whether plaintiff would be prejudiced if the default should be set aside, and (3) whether defendant has presented a meritorious defense. Hunt v. Ford Motor Co., 65 F.3d 178, 1995 WL 523646, at *3 (10th Cir. 1995); In re Dierschke, 975 F.2d 181, 183 (5th Cir. 1992). These factors are not "talismanic" and the Court may consider other factors. Id. at 184. The standard for setting aside an entry of default under Rule 55(c) is fairly liberal because "[t]he preferred disposition of any case is upon its merits and not by default judgment." Gomes v. Williams, 420 F.2d 1364, 1366 (10th Cir. 1970).
The County Attorney's Office asserts that it did not file an answer because it never received service of the summons or complaint. Julie Richey, the acting County Attorney of Crawford County, states that she did not answer or otherwise respond because she had never received a copy of the summons or complaint and she was not aware until February 5, 2003 that plaintiff claimed that he had properly served the County Attorney's Office. See Affidavit Of Julie Richey ¶¶ 10, 14, attached as Exhibit 1 to Motion Of Crawford County Attorney Julie Richey To: (1) Set Aside Default And To (2) Answer Out Of Time And Supporting Memorandum (Doc. #114) filed February 12, 2003. Richey knew that plaintiff had filed this suit against Pratt, a former special prosecutor, but until February 5, 2003, she did not know that plaintiff had attempted service on the County Attorney's Office. See id. ¶¶ 4, 7, 8.
On February 20, 2003, Richey resigned her position as county attorney. Plaintiff asserts that Richey therefore may not have authority to file the motion to vacate the entry of default. At the time defendant filed the motion, however, Richey was the county attorney. Moreover, she was the county attorney when plaintiff alleged that he served the County Attorney's Office with the summons and the complaint in this action.
A good faith mistaken belief regarding procedural questions generally is not culpable conduct. See 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). Service by certified mail is permitted under Kansas law, see K.S.A. § 60-303(c), and therefore also under the federal rules, see Fed.R.Civ.P. 4(e)(1) (allowing service in same manner as allowed under law of state where district court is located). Under Kansas law, service upon an individual must be made "by serving the individual or by serving an agent authorized by appointment or by law to receive service of process." K.S.A. § 60-304(a). Service upon a county must be made "by serving one of the county commissioners or the county clerk or the county treasurer." K.S.A. § 60-304(d)(1). Service upon a public corporation, body politic, district or authority not otherwise specified must be made "by serving the clerk or secretary or, if not to be found, any officer, director or manager thereof." K.S.A. § 60-304(d)(4).
Here, 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. Polly Bruce, a part-time employee of the County Court Clerk's Office, 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. Plaintiff claims that service was proper because the County Court Clerk's Office and the County Attorney's Office are close together, but he cites no statutory provision which authorizes service by neighborhood. To contest Richey's sworn affidavit that she did not know that plaintiff had attempted to serve the County Attorney's Office, plaintiff offers only speculation. Even if the Court assumes that Richey knew of plaintiff's attempt, the Court finds that the County Attorney's Office had a good faith belief that it had not been properly served. Cf. Bethley v. City of Spencer, Okla., 37 F.3d 1509, 1994 WL 573765, at *4 (10th Cir. Oct. 19, 1994) (actual notice of suit insufficient to satisfy service of process requirements); Oltremari v. Kan. Social Rehab. Serv., 871 F. Supp. 1331, 1353 (D.Kan. 1994) (actual notice of suit does not confer personal jurisdiction over defendant). Accordingly, defendant's failure to timely answer did not result from culpable conduct.
Plaintiff apparently contests the date that the County Attorney's Office filed the affidavits of Bruce and the County Court Clerk. See Plaintiff's Challenge to Defendants' Assertion That The Defendants Filed Their Motion To Set Aside The Default Entry On February 12th 2003 And Plaintiff's Response to The Defendants' Affidavits Credibility (Doc. #122) filed February 21, 2003; see also Notice of Filing Affidavit Of Pamela Hicks And Polly Bruce (Doc. #116) filed February 12, 2003. Plaintiff does not explain why the exact date defendant filed the affidavits is relevant to the instant case.
Plaintiff also alleges that Bruce and the County Court Clerk "harmonized" their affidavits to state that they do not recall receiving the summons and complaint addressed to the County Attorney's Office. Plaintiff offers no support for his contention. Accordingly, the Court must accept as true the sworn statements of Bruce and the County Court Clerk.
As to service on Glines (a Court Services Officer), plaintiff states that an employee of the County Court Clerk's Office signed the certified mail receipt. See Plaintiff's Further Notification Of New Evidence Concerning Process Service And The Defendant's Supporting Affidavits Filings (Doc. #133) filed March 21, 2003. Plaintiff apparently concludes that the Clerk's Office is therefore authorized to accept service of process for other entities and individuals. The issue whether service of process on Glines was proper is not before the Court. The fact that an employee of the County Court Clerk's Office accepted certified mail to Glines does not establish that that employee was authorized to receive service of process on behalf of the County Attorney's Office.
For purposes of the motion to vacate the default, the Court need not resolve whether service in this case actually satisfied Kansas law. Defendant's good faith belief that service had not been accomplished is sufficient. See Fink, 185 F.R.D. at 357; Freeze-Dry, 160 F.R.D. 156.
Plaintiff asserts that he will suffer prejudice because he has already expended legal costs and substantial personal effort. Any prejudice to plaintiff has been minimal, however, because most of his cost and effort has related to other defendants. The Court finds that plaintiff will not be materially prejudiced if the default is set aside.
Finally, defendant has presented a meritorious defense to plaintiff's claims. Defendant asserts that (1) it lacks capacity to be sued, (2) Count I is barred by the statute of limitations, (3) Counts I and IV do not allege personal participation, (4) the county attorney is entitled to Eleventh Amendment immunity and absolute prosecutorial immunity, and (5) the Court lacks personal jurisdiction over the County Attorney's Office. Defendant does not need to demonstrate a likelihood of success on the merits. Defendant's averments need only plausibly suggest the existence of facts which, if proven, would constitute a cognizable defense. See Jetcraft Corp. v. Banpais, S.A. De C.V., 166 F.R.D. 483, 486 (D.Kan. 1996) (citing Coon v. Grenier, 867 F.2d 73 (1st Cir. 1989)). In In re Stone, 588 F.2d 1316 (10th Cir. 1978), the Tenth Circuit outlined what defendant must do to demonstrate a meritorious defense in this context, as follows:
The parties do not litigate the truth of the claimed defense in the motion hearing. Rather, the court examines the allegations contained in the moving papers to determine whether the movant's version of the factual circumstances surrounding the dispute, if true, would constitute a defense to the action. For purposes of this part of the motion, the movant's version of the facts and circumstances supporting his defense will be deemed to be true.
The allegations may be satisfactorily presented in the written motion itself, in an appended proposed answer, or in attached affidavits. * * *
Thus the focus is on the sufficiency of the factual statement contained in the moving papers.
Id. at 1319-20 (citations omitted). Assuming defendant's allegations to be true, they are sufficient to defeat plaintiff's claims.
After considering the above factors, the Court elects to set aside its entry of default. Accordingly, the Court overrules as moot plaintiff's motion for default judgment.
II. Plaintiff's Motion To Reconsider
Based on newly discovered evidence that Glines and Pratt have insurance coverage, plaintiff asks the Court to reconsider its decision to dismiss them from the case. On December 17, 2002, the Court sustained the motions to dismiss of Glines and Pratt because Count I does not allege their personal participation or a factual basis for tolling the applicable statute of limitations; Counts II and III do not allege a basis for federal subject matter jurisdiction; and Count IV does not allege personal participation by Glines or Pratt. Insurance coverage is not relevant to these issues. For this reason and substantially the reasons stated in Defendant Pratt's Response to Plaintiff's Second Motion To Reconsider (Doc. #123) filed February 20, 2003 and State Defendants' Response In Opposition To Plaintiff's Second Motion For Reconsideration (Doc. #121) filed February 18, 2003, plaintiff's motion to reconsider is overruled.
Plaintiff seeks a judicial inquiry into the process server which served Glines and Pratt because, in part, it delayed service for approximately six weeks. See Plaintiff Clelland's Arguments And Authorities And Related Legal Issues For Consideration And Supporting Evidences (Doc. #120) filed February 19, 2003 at 3-5; Plaintiff's Notification Of Defendant's Misconduct(s) Concerning Process Service(s) In Case 02-2223-KHV/Sheldon Woulf Process Service (Doc. #131) filed March 12, 2003. Plaintiff has not shown why the circumstances surrounding service on Glines and Pratt is relevant to this case. If plaintiff has an independent claim against the process server or his former attorney, he must raise that claim in a separate lawsuit.
IT IS THEREFORE ORDERED that the Motion Of Crawford County Attorney Julie Richey To: (1) Set Aside Default And (2) Answer Out Of Time[;] And Supporting Memorandum (Doc. #114) filed February 12, 2003 be and hereby is SUSTAINED. On or before April 21, 2003, the Crawford County Attorney's Office shall file its answer to plaintiff's amended complaint.
IT IS FURTHER ORDERED that Plaintiff's Motion For Default Judgment (Doc. #113) filed February 10, 2003 be and hereby is OVERRULED.
IT IS FURTHER ORDERED that Plaintiff's Motion To Reconsider Dismissing Plaintiff's Claims Against Defendant(s) Pratt And/Or Glines (Doc. #115) filed February 13, 2003 be and hereby is OVERRULED.
IT IS FURTHER ORDERED that the parties shall review and comply with D. Kan. Rule 7.1(c) as to all further motions and briefing in this case.