Snavely v. Kansas Department of Corrections et al

Filing 99

MEMORANDUM AND ORDER ENTERED: Plaintiff's combined motion 52 for reconsideration and motion to divide complaint into two is denied. Plaintiff's motion 97 for reconsideration is denied. Signed by Senior District Judge Sam A. Crow on 9/29/2011. (Mailed to pro se party William H. Snavely, III by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WILLIAM H. SNAVELY, III,
Plaintiff,
CIVIL ACTION
No. 05-3468-SAC

vs.
KANSAS DEPARTMENT OF CORRECTIONS,
et al.,
Defendants.

MEMORANDUM AND ORDER
This matter comes before the court on plaintiff’s combined
motion to reconsider and motion to divide complaint into two
(Doc. 52).

Plaintiff seeks reconsideration of the court’s

earlier order (Doc. 41) in which the court determined that 11 of
the 20 claims and 37 of the 61 defendants identified in plaintiff’s amended complaint were subject to dismissal.
The Federal Rules of Civil Procedure do not recognize a
motion for reconsideration.

Van Skiver v. United States, 952

F.2d 1241, 1243 (10th Cir. 1991).

Instead, a party subject to an

adverse ruling may file a motion to alter or amend the order or
judgment pursuant to Fed.R.Civ.P. 59(e) or a motion seeking
relief from the order or judgment pursuant to Fed.R.Civ.P.
60(b).

See Van Skiver v. United States, id.

Determining which rule applies to a motion to reconsider
depends upon the time such a motion is filed: Rule 59(e) applies
when the motion is filed within 28 days of the order or judgment; Rule 60(b) governs all other motions. See Fed.R.Civ.P.
59(e).

Plaintiff’s motion was filed within thirteen days of the

order, and therefore, it is treated as a motion filed pursuant
to Rule 59(e).
“A motion under Rule 59(e) is warranted when: (1) there has
been an intervening change in the controlling law; (2) there is
newly discovered evidence which was previously unavailable; or
(3) it is necessary to correct clear error or prevent manifest
injustice.”

Servants of Paraclete v. Does, 204 F.3d 1005, 1012

(10th Cir. 2000).

A district court has broad discretion in

ruling on such a motion.
1324 (10th Cir. 1997).

See Phelps v. Hamilton, 122 F.3d 1309,

However, a motion filed pursuant to Rule

59(e) should not be used to rehash arguments that have been
presented or to assert new arguments that could have been raised
earlier.

Servants of Paraclete, id.

The court begins its discussion with the claims which are
included in the present action, namely, Claims 1,2,3,4,6,7,10,
12, and 181.
1

Plaintiff does not seek review of the court’s earlier
rulings concerning Claims 3 and 7.
2

Regarding Claims 1 and 2, plaintiff asserts that every KDOC
employee “above the four listed defendants in the KDOC hierarchy” (Doc. 52, p. 3) should be included.

However, plaintiff has

not specifically identified any defendant by name, identified
any personal participation by any such defendant, nor offered
any support for the bare claim that such unnamed defendants
should have known of or addressed problems with unsafe working
conditions.

This claim is vague and does not warrant relief

under Rule 59(e).
Claim 4: Plaintiff presents a similar assertion, alleging
that this claim should include every person in the chain of
command

for

both

the

Correct Care Services.

Kansas

Department

of

Corrections

and

Again, because plaintiff has identified

no specific defendant and presents only unsupported allegations
of

responsibility,

he

is

not

entitled

to

reconsideration

concerning this claim.
Claim 6: plaintiff seeks the inclusion of Deputy Warden
Winkelbauer as a defendant.

However, neither the statement of

the claim nor the related statements of fact identify this
defendant.

Plaintiff has not identified any part of his amended

complaint

that

alleges

action

by

defendant

Winkelbauer

concerning the alleged failure to forward an emergency grievance
to the warden on one occasion, and the court finds no basis to
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grant relief.
Claim 10: Plaintiff alleges this claim, which is proceeding
against defendants McKune, Werholtz, Medill, and Jones, should
include the Kansas Department of Corrections because it involves
a continuing course of conduct.

The court has reviewed the

portions of the amended complaint cited as the basis for Claim
10 but finds no support for plaintiff’s argument.
Claim 12: Plaintiff seeks to add a claim that the conduct
alleged in this claim, namely, the endorsement of a religious
tract, violated a state statute.

This claim was not asserted in

the amended complaint, and it is not properly presented in a
motion pursuant to Rule 59(e).
Claim 18: Plaintiff asks that the claim of verbal abuse be
reinstated, claiming it is an example of contempt.

Because

there is clear case law that rejects verbal abuse as the basis
for a constitutional claim, the court rejects this request.
Next, the court considers the portion of the motion that
concerns the claims that were dismissed without prejudice by the
court’s earlier order, namely, Claims 5, 8, 9, 11, 13, 14, 15,
16, 17, 19, and 20.

Plaintiff moves for an order dividing the

complaint into two. Because the court dismissed these misjoined
claims

without

prejudice,

the

court

sees

additional order dividing the complaint.
4

no

basis

for

an

Rather, plaintiff may

elect to refile the claims he wishes to pursue.
For the reasons set forth, the court denies plaintiff’s
combined motion to reconsider and to divide the complaint (Doc.
52).

The court notes the defendants’ request for a jury trial

on the claims remaining in this action and will refer this
matter for pretrial proceedings by a separate order.

Plain-

tiff’s motion to appoint counsel (Doc. 96) will be considered
during the pretrial phase of this action.
Also

before

the

court

is

plaintiff’s

motion

for

reconsideration (Doc. 97) filed following the court’s order of
March 30, 2011, in which the court denied plaintiff’s emergency
motion for injunctive relief, granted the motion to dismiss, or
in the alternative, for summary judgment filed by defendants
Dorothy, Bartz, and Jackson, denied plaintiff’s motions for stay
and for summary judgment, denied a second motion for injunctive
relief without prejudice, and denied plaintiff’s motion to
remove the Kansas Attorney General.
Defendants Dorothy, Bartz, and Jackson filed a response
(Doc. 98).
The court has construed this motion as a motion under Rule
59(e) and has considered whether the plaintiff has identified an
intervening change in the controlling law, newly discovered
evidence which was previously unavailable, or clear error in the
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earlier order.

Because the court has not identified any such

grounds in the plaintiff’s motion, the court will deny the
motion for reconsideration.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s combined
motion for reconsideration and motion to divide complaint into
two (Doc. 52) is denied.
IT IS FURTHER ORDERED plaintiff’s motion for reconsideration (Doc. 97) is denied.
Copies of this order shall be transmitted to the parties.
IT IS SO ORDERED.
Dated at Topeka, Kansas, this 29th day of September, 2011.

S/ Sam A. Crow
SAM A. CROW
United States Senior District Judge

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