McCormick v. Roberts et al

Filing 61

MEMORANDUM AND ORDER denying 34 Motion for Order; denying 35 Motion to Alter Judgment; denying 36 Motion for Order; denying 16 Motion to Alter Judgment. Signed by District Judge Monti L. Belot on 4/26/2012. (aa) Modified on 4/26/2012 to reflect that the Plaintiff was notified by NEF, not mailed a copy of the order (aa).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DALE MCCORMICK,

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Plaintiff,
v.
RAY ROBERTS, et al.,
Defendants.

CIVIL ACTION
No.

11-3130-MLB

MEMORANDUM AND ORDER
This case comes before the court on the following motions:
1)

Plaintiff’s motion to appoint a special master (Doc. 34),
defendants’ response (Doc. 37) and plaintiff’s reply (Doc.
50);

2)

Plaintiff’s motion to alter or amend judgment (Doc. 35),
defendants’ response (Doc. 39) and plaintiff’s reply (Doc.
49); and

3)

Plaintiff’s

motion

for

equitable

tolling

(Doc.

36),

defendants’ response (Doc. 38) and plaintiff’s reply (Doc.
48).
I.

Facts and Procedural History
Plaintiff is a prisoner confined in the Lansing Correctional

Facility (LCF).

On July 12, 2011, plaintiff filed his section 1983

complaint against Governor Sam Brownback, the State of Kansas, and
several employees at the prison.

Plaintiff’s allegations concerned

lead poisoning and asbestos contamination in the prison.

Plaintiff

asserted state tort claims as well as a violation of his Eighth
Amendment rights.

Judge Crow dismissed plaintiff’s claims against

Brownback and the State of Kansas for lack of personal participation.
Plaintiff filed his amended complaint against the remaining defendants
and again added Brownback and the State of Kansas.

(Doc. 23).

In addition to his prior claims, plaintiff added a habeas claim.
Defendants moved for dismissal of this claim on the basis that a
habeas claim cannot be brought pursuant to section 1983.

On February

24, 2012, the court entered an order granting defendants’ motion to
dismiss without prejudice.

The court directed the clerk’s office to

attach the appropriate form for plaintiff to file his habeas claim.
In addition, the court dismissed the State of Kansas and Sam Brownback
from the amended complaint.
Plaintiff now moves for reconsideration of this court’s order
and asks that the court allow his claims to proceed against Brownback
and the state.

In addition, plaintiff seeks an order tolling

plaintiff’s habeas claim.

Plaintiff also moves the court to appoint

a special master pursuant to 18 U.S.C. § 3626(f).
II.

Analysis
A.

Motion for Reconsideration (Doc. 35)

First, the Eleventh Amendment bars suits in federal court
against

states,

and

against

capacities for money damages.

state

officers

in

their

official

See Edelman v. Jordan, 415 U.S. 651,

663, 94 S. Ct. 1347 (1974); Opala v. Watt, 454 F.3d 1154, 1157 (10th
Cir. 2006)(Absent a specific waiver of immunity or express abrogation
of the state's immunity by Congress, “[n]onconsenting States may not
be sued by private individuals in federal court” regardless of the
form of relief requested.)

Therefore, plaintiff cannot sue the State

of Kansas as it has not waived its immunity in this case.
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Nor can

plaintiff bring suit against Brownback in his official capacity as the
governor of Kansas.
In order to succeed in a civil rights action against Brownback
in his personal capacity, plaintiff must show that: “(1) [Brownback]
promulgated, created, implemented or possessed responsibility for the
continued operation of a policy that (2) caused the complained of
constitutional harm, and (3) acted with the state of mind required to
establish

the

alleged

constitutional

deprivation.”

Richardson, 614 F.3d 1185, 1199-1200 (10th Cir. 2010).
allegations do not satisfy these requirements.

v.

Plaintiff’s

Therefore, his motion

(Doc. 35)1.

for reconsideration is denied.
B.

Dodds

Motion to Appoint a Special Master

Plaintiff moves to appoint a special master to investigate his
allegations pursuant to 18 U.S.C. § 3626(f).

That section, however,

allows the court to appoint a special master “only upon a finding that
the remedial phase will be sufficiently complex to warrant the
appointment.” 18 U.S.C. § 3626(f)(1)(B).
entered,

and

may

never

enter,

plaintiff’s motion is denied.
C.

the

This case has not yet

remedial

phase.

Therefore,

(Doc. 34).

Equitable Tolling

Plaintiff filed his amended complaint on January 9, 2012, barely
within the one-year statute of limitations period.

Because of this

court’s dismissal of his habeas claim, however, plaintiff’s habeas
claim,

if

refiled,

limitations period.

would

be

filed

outside

of

the

statute

of

See Hall v. Scott, 292 F.3d 1264 (10th Cir.

1

Plaintiff’s motion to amend or alter the judgment filed on
September 9, 2011, is also denied. (Doc. 16).
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2002).

Plaintiff seeks an order of this court tolling his habeas

claim.

Defendants contend that the court cannot toll plaintiff’s

habeas claim because it is not a live controversy before the court.
Defendants are correct.
apply2

will

is

to

be

The issue as to whether equitable tolling
presented

to

the

judge

who

is

assigned

plaintiff’s habeas claim.
Plaintiff’s motion is therefore denied.

(Doc. 36).

III. Conclusion
Plaintiff’s motions before the court are denied.

(Docs. 16, 34,

35, 36).
A motion for reconsideration of this order pursuant to this
court's Rule 7.3 is not encouraged.

Any such motion shall not exceed

three pages and shall strictly comply with the standards enunciated
by this court in Comeau v. Rupp.

The response to any motion for

reconsideration shall not exceed three pages.

No reply shall be

filed.

IT IS SO ORDERED.
2

The Tenth Circuit provides that a plaintiff is entitled to the
benefits of equitable tolling for having “diligently pursue[d] his
claims and demonstrate[d] that the failure to timely file was caused
by extraordinary circumstances beyond his control.” Marsh v. Soares,
223 F.3d 1217, 1220 (10th Cir. 2000), cert. denied, 531 U.S. 1194
(2001). Plaintiff has made no such showing. The court notes that
this is the thirteenth case plaintiff has filed in this court since
2000. His written submissions are well written - indeed, they are
better than those of some lawyers. Although plaintiff is pro se, the
rule of liberal construction does not require this court to be so
gullible as to assume that a state prisoner with plaintiff’s evident
experience and abilities is ignorant of the differences between habeas
corpus and civil rights claims or the applicable statutes of
limitations.
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Dated this

26th

day of April 2012, at Wichita, Kansas.
s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE

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