Queen v. Mildner et al

Filing 84

MEMORANDUM AND ORDER ENTERED: Plaintiff's motions for relief from judgment 75 & 80 are granted. The Clerk of the Court is directed to reopen this matter. Plaintiff's motion to modify payments 77 is denied. Plaintiff's motion to return original exhibits 83 is denied. The Clerk of the Court is directed to provide plaintiff with a copy of the docket sheet and a copy of the amended complaint 9 . On or before January 31, 2018, the parties shall advise the Court of the status of this case, including whether they contemplate filing a dispositive motion in this matter. Signed by U.S. District Judge Sam A. Crow on 10/31/17. Mailed to pro se party Samuel Robert Queen by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SAMUEL ROBERT QUEEN,
Plaintiff,
v.

CASE NO. 05-3005-SAC

(fnu) MILDNER, et al.,
Defendants.

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motions for relief
from judgment (Docs. #75 and #80), motion to modify payments (Doc.
#77), and motion to return original exhibits (Doc. #83).
This is a civil rights action filed by a prisoner in federal
custody. On May 12, 2005, the Court directed plaintiff to submit an
initial partial filing fee calculated under 28 U.S.C. §1915
(b)(1)(Doc. #18). Plaintiff submitted the initial partial fee in two
payments received on June 21, 2005.
On July 13, 2006, defendants moved to dismiss the complaint
pursuant to 28 U.S.C. § 1915(g), arguing that several dismissals in
filings by the plaintiff in other federal district courts qualified
as strikes. The Court granted that motion and directed petitioner to
submit the remaining balance of the $150.00 filing fee on or before
September 5, 2006.
On September 12, 2006, the Court dismissed the matter without
prejudice and denied plaintiff’s motion for leave to amend the
complaint. The Court also ruled that the $100.00 that had been
collected in this matter would be applied to an outstanding fee
obligation in another action filed by the plaintiff, Case No. 05-3341.

However, approximately two months later, plaintiff submitted the
balance of the filing fee and a motion for relief from judgment.1
Discussion
Motions for relief from judgment
A motion for relief from judgment under Rule 60(b) of the Federal
Rules of Civil Procedure allows a district court to relieve a party
from a judgment for “mistake, inadvertence, surprise or excusable
neglect” or “any other reason that justifies relief.” Fed. R. Civ.
P. 60(b)(1),(6). Such relief is “extraordinary and may only be granted
in exceptional circumstances.” LaFleur v. Teen Help, 342 F.3d 1145,
1153

(10th

Cir.

2003)(citations

and

internal

quotation

marks

omitted). Rule 60(b) balances “the desire to preserve the finality
of judgments” with the requirement “that justice be done in light of
all the facts.” Cessna Fin. Corp. v. Bielenberg Masonry Contracting,
Inc., 715 F.2d 1442, 1444 (10th Cir. 1983)(internal quotation marks
omitted).
The Court has carefully studied the record and concludes that
the interests of justice require the Court to reopen this matter. It
appears that plaintiff submitted the filing fee as directed, and
although that fee was received after the deadline set by the Court,
petitioner notified the Court of a change in address by a notice mailed
shortly before the due date.
Motion to modify payments
Petitioner also moves for an order to cease collection of fees,
arguing, in part, that if the payments are not discontinued, the Court

1

Although these motions were filed by the Clerk of the Court, they did not
immediately appear on reports maintained by the Court.

must order a response. Because the Court has determined this matter
should be reopened, the Court will deny the motion to modify payments.
Motion to return exhibits
Plaintiff seeks the return of the original documents submitted
in this matter (Doc. #83). Because those documents are part of the
official record in this matter, the Court will deny this motion. The
Court will direct the Clerk of the Court to provide plaintiff with
a copy of the docket sheet and a copy of the amended complaint (Doc.
#9).
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motions for
relief from judgment (Docs. #75 and #80) are granted. The Clerk of
the Court is directed to reopen this matter.
IT IS FURTHER ORDERED plaintiff’s motion to modify payments (Doc.
#77) is denied.
IT IS FURTHER ORDERED plaintiff’s motion to return original
exhibits (Doc. #83) is denied. The Clerk of the Court is directed to
provide plaintiff with a copy of the docket sheet and a copy of the
amended complaint (Doc. #9).
IT IS FURTHER ORDERED that on or before January 31, 2018, the
parties shall advise the Court of the status of this case, including
whether they contemplate filing a dispositive motion in this matter.
IT IS SO ORDERED.
DATED:

This 31st day of October, 2017, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge