Matson v. Kansas, State of et al

Filing 239

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 226 to alter or amend judgment is denied. Plaintiff's amended motions to file additional pages 236 and to file a supplemental exhibit 238 are granted. Signed by Senior District Judge Richard D. Rogers on 05/01/14. (Mailed to pro se party Mike D. Matson by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MIKE D. MATSON,

)
)`
)
)
)
)
)
)
)

Plaintiff,
v.
JOEL HRABE,
Defendant.

Case No. 11-3192-RDR

MEMORANDUM AND ORDER
Plaintiff is a state system inmate who has brought a pro se
civil

rights

illegal

action

pursuant

retaliation.

A

to

42

significant

U.S.C.

§

portion

1983
of

alleging

plaintiff’s

claims concern plaintiff’s transfer from a cell in A-Unit of the
Norton Correctional Facility (NCF) to cell C-3003 in C-Unit at
NCF.

Plaintiff

alleges

retaliatory reasons.
order

granting

Doc. No. 224.

that

the

transfer

was

done

for

On January 23, 2014, this court issued an

summary

judgment

against

plaintiff’s

claims.

The order also denied plaintiff’s motion for

leave to file a second amended complaint and ruled upon some of
plaintiff’s objections to orders issued by the Magistrate Judge
in this case.
This case is now before the court upon plaintiff’s motion
to alter or amend judgment pursuant to FED.R.CIV.P. 59(e).
No. 226.

Doc.

Plaintiff’s motion raises several arguments seeking

modification

of

the

court’s

rulings

in

the

January

23,

2014

order.

After careful review, the motion shall be denied for the

reasons which follow.1
I.

RULE 59(e) STANDARDS AND REPLY BRIEF STANDARDS
Grounds warranting relief under Rule 59(e) include:

intervening

change

in

the

controlling

law;

2)

new

1) an

evidence

previously unavailable, and 3) the need to correct clear error
or prevent manifest injustice.
204

F.3d

1005,

appropriate

1012

where

the

(10th

Servants of Paraclete v. Does,

Cir.

court

has

2000).

Such

misapprehended

a

motion

the

“is

facts,

a

party’s position, or the controlling law,” but it should not
attempt

to

“revisit

issues

already

addressed

or

advance

arguments that could have been raised in prior briefing.”

Id.

It is not intended to provide a second chance for a party to put
forth

a

better

case.

Mellon

v.

Cessna

Aircraft

Co.,

64

F.Supp.2d 1061, 1063 (D.Kan. 1999).
Relief shall be denied to plaintiff because he does not
satisfy the standards of Rule 59(e).

In addition, a few of

plaintiff’s many arguments are presented for the first time in
his reply brief.

This provides an additional reason to reject

some of plaintiff’s arguments.

See Niles v. American Airlines,

Inc., 563 F.Supp.2d 1208, 1213 (D.Kan. 2008).

1

The court shall grant plaintiff’s amended motion for leave to file
additional pages and plaintiff’s amended motion to file a supplement exhibit.
Doc. Nos. 236 and 238.
These motions relate to plaintiff’s submissions in
support of the motion to alter or amend.

2

II.
PLAINTIFF’S MOTION IS TIMELY AS TO THE COURT’S ORDER
GRANTING SUMMARY JUDGMENT, BUT NOT AS TO THE COURT’S ORDERS
RULING ON NONDISPOSTIVE MOTIONS.
Defendant

support

of

additional

made

contends

defendant

has

that

his

Rule

arguments

considered.

two

timeliness

plaintiff’s

59(e)
made

motion

in

that

arguments.

amended
was

First,

memorandum

untimely

memorandum

and

should

in
that

not

be

Given that the court’s order which plaintiff seeks

to alter or amend was mailed by regular mail to plaintiff on
January 23, 2014, plaintiff had 31 days to file his Rule 59(e)
motion.

Plaintiff

deadline.

filed

his

amended

memorandum

before

that

So, the court rejects defendant’s first timeliness

argument.
Defendant’s second timeliness argument concerns plaintiff’s
challenge to the court’s rulings on nondispositive motions.

As

already stated, the court’s order granting summary judgment also
ruled upon some nondispositive motions.

Plaintiff’s motion to

alter or amend objects to or asks for reconsideration of the
court’s

rulings

Defendant

on

asserts

some
that

of

the

plaintiff’s

nondispositive
arguments

as

motions.
to

the

nondispositive matters are untimely because Local Rule 7.3(b)
requires

that

motions

for

reconsideration

orders be filed within 14 days of the order.
that

since

the

nondispositive

rulings

were

of

nondispositive

Plaintiff argues
made

in

the

same

order that granted summary judgment, the 28-day time limit for
3

filing a Rule 59(e) motion should apply to the nondispositive
rulings.
Support for defendant’s argument may be found in Welch v.
Centex Home Equity Co., 224 F.R.D. 490, 493 (D.Kan. 2004).

In

that case, the court had denied a motion for leave to amend and
granted a motion to dismiss in the same order.

The plaintiff

filed a motion for reconsideration within 30 days.
held

that

the

motion

seeking

The court

reconsideration

of

the

nondispositive motion to amend had to be filed within the time
period set forth in Local Rule 7.3 (which at that time was 10
days).

As

for

the

dispositive

ruling,

the

motion

for

reconsideration was untimely under Rule 59 (at that time Rule 59
motions also had to be filed within 10 days of judgment), but
the motion was considered under Rule 60.
The court agrees with defendant that plaintiff’s request
for reconsideration of the court’s rulings upon nondispositive
motions is untimely.
discuss

plaintiff’s

Nevertheless, the court shall proceed to
arguments

for

reconsideration

of

those

rulings.
III.
THE COURT APPLIED THE CORRECT STANDARD OF REVIEW FOR THE
MAGISTRATE JUDGE’S ORDERS.
Plaintiff

argues

that

the

court

erred

in

denying

plaintiff’s objections to the Magistrate Judge’s rulings upon
motions to enforce subpoenas and motions to quash subpoenas.

4

These objections were made in Doc. No. 198.

One of plaintiff’s

arguments

wrong

review.

is

that

the

court

applied

the

standard

of

Plaintiff contends that the court erred by applying a

“clearly erroneous” standard instead of a “de novo” standard.
Plaintiff

asserts

that

a

“de

novo”

standard

should

apply

to

subpoena enforcement rulings, citing In re Oral Testimony of a
Witness Subpoenaed Pursuant to Civil Investigative Demand No.
98-19, 182 F.R.D. 196 (E.D.Va. 1998).

We reject plaintiff’s

argument.
As the court reads FED.R.CIV.P. 72(a), a “clearly erroneous
or is contrary to law” standard applies because the order in
question concerned a nondispositive matter.2
plaintiff

was

initiated

as

a

petition

to

The case cited by
enforce

a

civil

investigative demand to require a witness to provide testimony.
Because that was the sole issue in the case, an order deciding
that issue was considered a case dispositive order.
quash are usually nondispositive matters.

Motions to

Hartford Fire Ins.

Co., Inc. v. Transgroup Exp., Inc., 2009 WL 2916832 *1 (N.D.Ill.
9/1/2009).
that

case

Moreover, the decision of the Magistrate Judge in
to

the

district court, which is always subject to de novo review.

28

U.S.C.

is

§

was

framed

636(b)(1).

as

a

So,

report

the

and

case

recommendation

cited

by

plaintiff

distinguishable.
2

Plaintiff’s objections themselves were made pursuant to FED.R.CIV.P. 72(a)
for “nondispositive matters.” Doc. No. 198 at p. 1.

5

IV.
THE COURT’S ORDERS SUSTAINING THE MAGISTRATE
RULINGS AS TO MOTIONS TO ENFORCE SUBPOENAS SHALL
MODIFIED.

JUDGE’S
NOT BE

Plaintiff makes several arguments relating to the court’s
denial of objections in Doc. No. 198 to the Magistrate Judge’s
order (Doc. No. 188) concerning the enforcement of two subpoenas
– one subpoena issued to Mr. Raymond N. Roberts and one subpoena
issued to Mr. Timothy Taylor.

As noted previously, plaintiff’s

motion to alter or amend is untimely as to these motions.

The

issues plaintiff raises are also moot in light of the court’s
grant of summary judgment.

Nevertheless, the court will attempt

to address plaintiff’s contentions.
First, plaintiff argues that the court mischaracterized the
objections he made in Doc. No. 198. Plaintiff is correct that
the court did not accurately characterize the full extent of the
rulings in the order to which plaintiff objected. But, plaintiff
does not argue why this justifies the relief he requests.

The

court found and still finds that the Magistrate Judge’s rulings
were not clearly erroneous or contrary to law.
Under the clearly erroneous standard, the court is required
to affirm a magistrate judge’s order unless a complete review
leaves it “with the definite and firm conviction that a mistake
has been committed.”
F.2d

1458,

independent

1464
review

Ocelot Oil Corp. v. Sparrow Indus, 847

(10th

Cir.

1988).

of

legal

issues
6

The
to

court

determine

conducts
whether

an
the

ruling is contrary to law.

Sprint Comm. Co. v. Vonage Holdings

Corp., 500 F.Supp.2d 1290, 1346 (D.Kan. 2007).
Plaintiff

has

not

shown

that

the

Magistrate

Judge’s

conclusions in quashing plaintiff’s subpoena to Mr. Roberts were
clearly erroneous or contrary to law.

Normally, issues relating

to a motion to quash a subpoena are a subject of discretion.
Gulley

v.

Orr,

905

F.2d

1383,

1386

(10th

Cir.

1990).

This

includes the decision whether to quash or to modify a subpoena.
Estate of Klieman v. Palestinian Authority, 293 F.R.D. 235, 240
(D.D.C.

2013).

The

Magistrate

Judge

because it was vague and overly broad.

quashed

the

subpoena

Plaintiff objected on

the grounds that the Magistrate Judge should have only modified
the

subpoena

or

allowed

it

to

be

reserved.

But,

these

objections (and their reference to Doc. Nos. 112, 113, and 127)
do

not

show

that

the

Magistrate

Judge’s

action

was

clearly

erroneous or an abuse of discretion.
As for the subpoena issued to Mr. Taylor, the Magistrate
Judge

quashed

overbreadth.
narrowly
stayed,

the

subpoena

on

the

grounds

of

relevance

or

But, plaintiff was granted leave to serve a more

tailored
resumed.

subpoena

when

Plaintiff’s

discovery,

memorandum

in

which

had

support

of

been
the

motion to alter and amend and his reply brief barely mention the
subpoena issued to Mr. Taylor.

So, no credible argument can be

made for overturning the court’s order sustaining the Magistrate
7

Judge’s decision as to that subpoena.

Even if the court returns

to the objections made in Doc. No. 198, it is clear that the
Magistrate
plaintiff’s

Judge’s

order

objections

was

to

not

quashing

clearly
the

mistaken.
Roberts

Like

subpoena,

plaintiff makes a broad reference to prior pleadings (Doc. Nos.
116, 117, 140 and 141).3

But these pleadings do not sustain

plaintiff’s burden of showing clear error.
In plaintiff’s motion to alter or amend, he refers to the
motions to quash as untimely.

This argument, however, was not

made in his objections in Doc. No. 198 and therefore, this court
could not have erred in failing to consider it.

Moreover, the

timeliness question was considered by the Magistrate Judge as to
the Taylor subpoena and plaintiff does not attempt to dispute
the Magistrate Judge’s reasoning which would appear to apply to
the Roberts subpoena as well.
Plaintiff argues in his reply brief that defendant has no
standing to resist plaintiff’s arguments to alter and amend this
court’s order relating to the subpoena issues and therefore that
his motion is uncontested as to those subpoenas.
does

not

demonstrate

however

that

the

court

This argument
should

have

overturned the Magistrate Judge’s order as clearly erroneous on

3

As defendant notes, Judge Robinson has been critical of merely referring the
district court to prior pleadings as a means to explain objections to a
Magistrate Judge’s order. Veson v. Atchison Hosp. Ass’n, 2006 WL 1675914 *2
(D.Kan. 6/14/2006). Plaintiff’s approach to explaining his objections to the
Magistrate Judge’s decision deserves similar criticism.

8

the basis of plaintiff’s rather spare argumentation and general
reference

to

prior

pleadings.

Nor

does

it

prove

that

this

court’s order caused manifest injustice.
Finally, and more pertinently, plaintiff belatedly suggests
in his reply brief that he attempted to limit the scope of the
subpoena issued to Mr. Roberts.

This contention, however, does

not reach the problem of vagueness identified by the Magistrate
Judge

and

it

fails

to

clearly

show

that

the

proposed

modification would satisfy the concerns of overbreadth.
In sum, the court continues to find that the Magistrate
Judge’s

order

(Doc.

No.

188)

was

not

clearly

erroneous

or

contrary to law.
V. THE COURT’S TREATMENT OF PLAINTIFF’S OBJECTIONS IN DOC. NO.
216 SHOULD NOT BE ALTERED OR MODIFIED.
Plaintiff’s

next

argument

is

that

the

court

mischaracterized Doc. No. 216 – “Plaintiff’s Objections to Order
of Magistrate Judge to District Court.”
to

two

orders

by

the

Magistrate

The document refers

Judge,

an

order

denying

plaintiff’s motion to modify the scheduling order – Doc. No.
178; and an order denying plaintiff’s motion to reconsider –
Doc.

No.

210.

Plaintiff

argues

that

the

court

erred

by

referring the plaintiff’s objections in Doc. No. 216 as relating
to “the Magistrate Judge’s denial of [plaintiff’s] motion to
reconsider the Magistrate Judge’s denial of plaintiff’s motion

9

to modify the scheduling order.”
no significant error here.

Doc. No. 224 at p. 31.

We see

The Magistrate Judge’s order in Doc.

No. 210 denied plaintiff’s motion for reconsideration (Doc No.
186) of the Magistrate’s Order denying the motion to modify the
scheduling order – Doc. No. 178.
mentioned in Doc. No. 216.

Those are the two orders

Plaintiff could not timely ask for

review of Doc. No. 178 by this court in Doc. No. 216.

This

court’s consideration of Doc. No. 178 could only be accomplished
by objecting to the Magistrate Judge’s denial of reconsideration
in

Doc.

No.

210.

So,

the

court

did

not

substantially

mischaracterize Doc. No. 216.
VI.

RELIEF UNDER FED.R.CIV.P. 56(d) WAS PROPERLY DENIED.
Plaintiff’s next argument is that the court made a mistake

of law or clear error because the court did not allow discovery
to continue pursuant to FED.R.CIV.P. 56(d) and stay action upon
defendant’s summary judgment motion.

Plaintiff asserts that the

court was legally required to take this action because defendant
did not file opposition to plaintiff’s motion to stay in spite
of the court’s direction that defendant “should file a response
to

plaintiff’s

motion

to

stay

and

a

reply

response to the motion for summary judgment.”
p. 2.

to

plaintiff’s

Doc. No. 169 at

Defendant did not file a response to the motion to stay,

although defendant did oppose plaintiff’s attempts to modify the
scheduling

order

to

extend

the
10

discovery

deadline

which

had

expired prior to the summary judgment decision.

Doc. No. 190.

Because the motion to stay was “unopposed,” plaintiff contends
this court was required by law to grant the motion to stay.
Plaintiff

supports

his

position

by

citing

Local

Rule

7.4(b)

which provides that if a responsive brief is not filed to oppose
a motion, the court will decide the motion as an uncontested
motion and ordinarily grant the motion without further notice.
Obviously, Local Rule 7.4(b) does not command the court to grant
uncontested motions under all circumstances.

So, the court did

not violate the Local Rules by denying plaintiff’s motion to
stay, particularly where defendant was generally in opposition
to the extension of discovery.4
The denial of the motion to stay did not cause injustice
for the reasons stated in the court’s order.
justify

relief

under

Rule

56(d)

because

Plaintiff did not
plaintiff

did

not

identify “probable facts” available to him through additional
discovery which would demonstrate a chilling injury or rebut
defendant’s
that

the

claim

court

to

did

qualified
not

immunity.

“liberally

Plaintiff

construe”

his

contends

Rule

56(d)

motion and affidavit or sufficiently consider that defendant was

4

Plaintiff also argues that the absence of a response from defendant “denied”
plaintiff’s right to file a reply brief in which he would have raised a new
argument regarding defendant’s bad faith conduct in discovery.
However,
plaintiff at any time could have asked for leave to supplement his motion
with any new evidence or argument.
Of course, if the evidence or argument
was not truly new, plaintiff ordinarily would not have been permitted to
raise it, even in a reply brief.

11

in exclusive control of the information plaintiff has sought to
discover.

But, the court was well aware of plaintiff’s pro se

status and the circumstances of this case.
Plaintiff has attempted to extend the time and scope of
discovery

in

various

plaintiff

has

ways.

failed

to

It

is

the

demonstrate

court’s

in

his

view
Rule

that
56(d)

argumentation, his contentions for an extension of the discovery
deadline, and his motion to compel discovery that the desired
discovery

would

make

a

material

difference

to

the

critical

issues in the summary judgment pleadings.

This was the court’s

reason

56(d)

for

plaintiff’s

denying
Rule

59(e)

plaintiff’s
motion

Rule

fails

to

request

demonstrate

that

and
the

court was mistaken.
VII.
LEAVE TO FILE A SECOND AMENDED COMPLAINT WAS PROPERLY
DENIED.
The court denied plaintiff leave to file a second amended
complaint (“SAC”) because plaintiff waited too long to make the
motion, and because some of the “new” allegations were either
unnecessary or futile.

Before discussing plaintiff’s arguments

to alter this court’s denial of leave to file plaintiff’s SAC,
the court will observe that many of plaintiff’s arguments could
have been raised in his briefing in support of his motion to
amend the complaint.

The arguments are raised for the first

12

time in the motion to alter or amend and, therefore, they are
improper.
When the court denied leave to file the proposed SAC, the
court accepted defendant’s argument that Count Three was futile
and noted that plaintiff had not responded to this contention
from defendant.

In the motion to alter or amend, plaintiff

argues for the first time that Count Three of the proposed SAC –
alleging “Negligent Infliction of Emotional Distress” (Doc. No.
182-1 at p. 4) – is not futile where the injurious conduct is
willful

or

wanton

or

defendant

acts

with

intent

to

injure.

Plaintiff’s argument obviously is not pertinent to Count Three,
which

alleged

Plaintiff’s
assert

the

negligent

allegations,
type

of

infliction
even

physical

read
injury

of

emotional

liberally,
which

is

distress.

simply

do

consistent

not
with

bringing a claim under Kansas law for negligent infliction of
emotional

distress.

Plaintiff

argues

significant physical injury, even death.

that

GERD

can

cause

But, plaintiff has not

alleged that it did cause significant physical injury in the
proposed SAC.

Plaintiff alleges “asthma attacks and acid re-

flux into throat and lungs.”

Doc. 182-1 at p. 9.

In plaintiff’s reply brief, he argues for the first time
that

defendant

susceptibility
belatedly made.

to

was

aware

emotional

of

plaintiff’s

distress.

This

particular
argument

is

Of course, even if the court had permitted
13

plaintiff to amend his complaint to add Count Three, it would
have

been

dismissed

when

the

court

declined

to

exercise

supplemental jurisdiction over plaintiff’s state law claims.
The remainder of plaintiff’s argumentation does not address
the case law cited in the court’s order, or address the court’s
reasoning that the proposed SAC was untimely, unnecessary and
futile.

The actions plaintiff alleges occurred primarily before

February 2012.

Yet, plaintiff waited until November 18, 2013

(near the close of discovery) to ask for leave to amend the
complaint, after he had been aware of the actions for a long
period of time.

The court considered some of the actions to be

outside the scope of the amended complaint.5

Therefore, the

addition of these matters near the close of discovery would be
prejudicial to defendant.

5

For instance, plaintiff claims in the SAC that defendant seized mail and
blocked plaintiff’s grievances after plaintiff was moved to C-Unit.
The
court held that this was outside the scope of the amended complaint.
Plaintiff contends that these claims should be viewed as raised by his
request for injunctive relief against “molesting” mail in his amended
complaint.
A request for injunctive relief, however, does not suggest that
there were other instances of mail or grievance interference not mentioned in
the amended complaint.
Plaintiff asserted in his amended complaint that
defendant refused to return an envelope and stamp to plaintiff in July and
August 2011. There is no indication in the amended complaint that there were
other episodes of “mail molestation” occurring after he was transferred to CUnit.
Plaintiff has indicated that his first amended complaint, filed in
January 2012, was by order of the court to separate his issues and not to add
claims.
So, episodes of mail interference after plaintiff’s original
complaint filed November 11, 2011, would reasonably be interpreted as a new
claim or claims.
Plaintiff broadens his argument in his reply brief to
contend that the mail interference constituted an attempted “cover up” which
could be evidence of specific intent. However, nothing in the court’s order
denying leave to file a SAC bars the presentation of specific intent
evidence.

14

Plaintiff’s reasons for amending the complaint are various
and sometimes late in coming.
plaintiff

suggests

obstructed,

but

that

also

In the original motion to amend,

discovery

that

discovery

had

been

provided

denied

and

plaintiff

with

additional facts and that plaintiff could itemize the actual
injuries suffered.

Doc. No. 182 at p. 2.

In plaintiff’s reply

in support of his motion for leave to file the proposed SAC he
states that he waited to file the motion because he had been
denied discovery so long and that several acts were not known to
plaintiff until after he amended his complaint.
at p. 2.

Doc. No. 196-1

In the motion to alter or amend, plaintiff argues that

he waited to ask for leave to amend because was trying not to
waste judicial resources with several amendments and trying to
resolve all the claims in one final amendment.
p.

11.

These

various

arguments

do

not

Doc. No. 228 at

adequately

justify

plaintiff’s delay in raising some of his complaints regarding
conditions he suffered or actions taken against him while he was
in C-Unit.

He was transferred out of C-Unit Pod 3 on March 9,

2012, more than eighteen months after he filed the motion for
leave to file the proposed SAC.
Finally, the court’s order denying leave to file the SAC
should not be altered because plaintiff has failed to address
why the proposed amendments were necessary and why they were not
futile.

As

the

court

attempted
15

to

explain

in

our

previous

order, some of the actions alleged in the proposed SAC could
already

be

considered

as

part

of

the

amended

complaint.

Therefore, the SAC was not necessary as to those claims.

The

court further held that all of the proposed amendments were not
sufficient to show that defendant violated federal law against
retaliation

or,

if

he

did,

to

rebut

defendant’s

claim

qualified immunity.6

Therefore, the proposed SAC was futile.

VIII.
DEFENDANT’S
GRANTED.

MOTION

to

FOR

SUMMARY

JUDGMENT

WAS

PROPERLY

Plaintiff makes numerous arguments to alter or amend the
court’s order granting defendant’s motion for summary judgment.
The court shall attempt to address the arguments in the order in
which they are presented.
A.
Plaintiff’s objections to the court’s statements of
uncontroverted fact do not warrant relief.
Plaintiff

objects

to

the

following

statement

of

uncontroverted fact which is contained in the summary judgment
order:

“After plaintiff learned [that he needed to pay the

filing and service fees for a state court action with two checks
instead of one], he requested that forms to withdraw money, a
letter and a check be returned to him.”
fairly

consistent

statement of facts.

with

plaintiff’s

This statement appears

response

to

defendant’s

Doc. No. 194, p.3 (response to defendant’s

6

Plaintiff also argues that the court’s order misstated defendant’s position
as to the motion for leave to file the SAC.
Doc. No. 228 at pp. 8-9.
If
there was a mistake, it had no bearing upon the court’s reasons for denying
leave to amend.

16

Plaintiff’s purported correction7

statement of fact (“SOF”) #5).

is not what plaintiff presented as an “uncontroverted fact” or
what plaintiff presented in opposition to defendant’s list of
uncontroverted

facts,

although

it

plaintiff’s pleadings and affidavit.

is

not

inconsistent

with

The long and short of the

matter is that plaintiff does not explain why the alleged error
by the court should lead to a different result or alter the
court’s analysis of the summary judgment motion.
Plaintiff objects to another of the court’s statements of
uncontroverted fact:
filed

grievances,

“Plaintiff admits that he has frequently

property

claims

and

Kansas

Open

Records

requests and that it may have appeared that plaintiff had excess
property at times because plaintiff had his paperwork laid out
in his cell so he could work.”
with

plaintiff’s

SOF

#

27

This statement is consistent

(Doc.

No.

194

at

p.

21)

and

plaintiff’s response to defendant’s SOF # 14 (compare Doc. No.
145 at p. 4 and Doc. No. 194 at p. 6).

Again, plaintiff does

not explain why any correction to this statement would alter the
court’s findings on summary judgment.

7

Plaintiff states: “The correct fact is that Plaintiff was denied the
withdraw from his prison account funds to pay the sheriff’s service fees for
service of process. He informed his Unit Team this was denying him access to
the Court, and he would be filing a civil action[] under 42 U.S.C. § 1983.
[H]is Unit Team relayed this to the Defendant, with Plaintiff’s directives to
return the withdraw request identifying its denial. The Defendant ordered
the material be returned to him instead of the Plaintiff. This directive was
in direct violation of KDOC IMPP 04-103.”

17

Plaintiff next objects to the court failing to find as an
uncontroverted fact that C-Unit Pod-3 was a disciplinary unit.
As the court reads the pleadings, this was not an uncontroverted
fact and plaintiff did not propose it as an uncontroverted fact.
Plaintiff did assert that it was uncontroverted that he had to
share his day room with disciplinary restriction inmates and
that

administrative

inmates

were

housed.

housed

Doc.

controverted.
C-Unit

Pod

segregation

No.

in
194,

C-Unit,
p.

and

disciplinary

Pod

3,

21.

Doc. No. 215, p. 27.
3

as

a

“Disciplinary

But,

where
these

segregation

plaintiff
assertions

was
were

Plaintiff also referred to
Restriction

Pod”

in

his

responses to defendant’s alleged uncontroverted facts, but did
not cite evidentiary support for this label.
8-10.

Doc. No. 194, pp.

Defendant claimed that plaintiff was not forced to spend

day room time with disciplinary restriction inmates.

Defendant

further claimed that inmates on restriction were not housed on
plaintiff’s level; that segregation inmates never have contact
with general population inmates; and that segregation inmates
were not housed in C-Unit, Pod 3 while plaintiff was there.
Defendant

further

claimed

that

segregation

inmates

are

temporarily housed in Pod 3 of C Unit when segregation beds in A
Unit are full, but that segregation inmates are never allowed in
the dayroom except when escorted outside by prison staff.

18

Doc.

No. 145, p. 7.

Plaintiff did not dispute these alleged facts.

Doc. No. 194, pp. 12-13.
Plaintiff also objects that the court should have listed as
an uncontroverted fact that the goal of advancement for inmates
at NCF is to achieve a room in A-Unit and that disciplinary
restrictions required inmates to be moved from A-Unit.

Again,

these alleged uncontroverted facts were not proposed as such
although

plaintiff

did

assert

that

it

was

“common

knowledge

among inmates that A-Unit is the honor Unit with inmates on
incentive Levels 2 and 3 having priority in housing there.”8
Doc. No. 194 at p. 19.
In

sum,

in

his

reword

motion

alter

arguments

in

or

amend

plaintiff

opposition

to

has

attempted

to

judgment.

This is not a proper purpose for a motion to alter or

amend judgment.

his

to

summary

In addition, plaintiff does not demonstrate

that if the court accepted plaintiff’s view of what should have
been considered uncontroverted that it should have changed the
court’s ruling upon the summary judgment motion.

The court’s

order focused upon the fact that plaintiff was not placed on
restrictions and he was not given discipline.
also

focused

upon

the

differences

in

The court’s order

the

conditions

of

confinement between plaintiff’s cell in A-Unit and his cell in
C-Unit.

The court considered plaintiff’s alleged contact with

8

Defendant objected that plaintiff made this assertion without showing
personal knowledge. Doc. No. 215 at p. 25.

19

inmates

on

discipline

or

restrictions.

The

court

is

not

convinced that plaintiff’s arguments, as reworded in his motion
to

alter

or

amend,

should

alter

the

court’s

holding

upon

defendant’s motion for summary judgment.
B. Plaintiff’s claim that he was chilled from engaging in
protected activity does not warrant relief from summary
judgment.
Plaintiff

objects

that

the

court

ignored

plaintiff’s

statement that defendant’s alleged retaliatory actions chilled
plaintiff’s engagement in protected activity.
not.

The

court

noted

in

the

summary

The court did

judgment

order

that

plaintiff asserted he was forced to agree not to file grievances
and claims in order to be permitted to move from cell C-3003 to
a different cell in C-Unit.

Doc. No. 224 at p. 11.

The key inquiry is not subjective, it is objective.

See

Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007).
While plaintiff’s allegation that he was chilled may provide
some evidence of a chilling injury, the court concluded that it
was not sufficient to establish a material fact issue as to
whether

the

alleged

adverse

action

would

chill

a

person

of

retaliatory

motive

do

ordinary firmness.
C. Plaintiff’s arguments regarding
not warrant relief from summary judgment.

Plaintiff next takes issue with the court’s finding that
“plaintiff’s

evidence

that

he

was

20

transferred

to

C-3003

for

retaliatory

reasons

boiled

down

to

mere

tempor[al]

proximity

which is insufficient to sustain a material fact issue as to
defendant’s motivation and the cause of plaintiff’s transfer.”9
Doc. No. 224 at p. 20.
summary

judgment

Defendant raised this question in his

motion

arguing

that

purposes supported the cell transfer.
23.

legitimate

penological

Doc. No. 145 at pp. 22-

Defendant indicated that the inter-unit cell transfer was

completed

to

balance

out

unit

team

caseloads.

Plaintiff

responded by arguing that if the transfer was ordered to balance
out caseloads, plaintiff would have been transferred to another
A-Unit room or perhaps to other C-Unit pods than Pod 3.
No. 194 at p. 30.

Doc.

The court held that this response did not

rebut the alleged grounds for the transfer and that it lacked
foundation of knowledge.

Plaintiff’s motion to alter or amend

now argues that other alleged retaliatory actions both before
and after the cell transfer (such as cell searches, property
losses

and

mail

interference)

supply

sufficient

retaliatory motive beyond temporal proximity.
was

not

the

argument

plaintiff

summary judgment motion.
the

in

his

of

a

This, however,
response

to

the

Plaintiff provides no good cause for

waiting

to

amend.

In addition, although plaintiff has filed an affidavit

describing

raise

made

proof

argument

post-transfer

until

the

retaliatory

9

motion

actions,

to

alter

or

plaintiff

In the court’s order, there are typographical errors on pages 18 and 20
where the order reads “temporary proximity” instead of “temporal proximity.”

21

describes no basis for knowing that defendant was responsible
for many of the alleged retaliatory actions.
D. Plaintiff’s claims that his cell transfer constituted a
“chilling injury” do not warrant relief from summary judgment.
Next,

plaintiff

presents

several

arguments

against

the

court’s conclusion that plaintiff cannot demonstrate that the
cell transfer amounted to a “chilling” injury.

First, plaintiff

asserts the court was incorrect in stating that there was a
light

“shining

into”

cell

C-3003

24-hours

a

day

that

caused

plaintiff some sleep deprivation, as opposed to stating that
there was a light in cell C-3003 shining constantly and causing
sleep deprivation.

Plaintiff appears to be correct, but the

court is not persuaded to alter the ruling upon the summary
judgment motion.

The court determined that the significance of

sleep interference from the light was not evident in the record.
Plaintiff’s

affidavit

deprivation.”

stated

Plaintiff

that

the

contends

that

light
the

caused

“sleep

significance

is

evident from a picture plaintiff supplied as an exhibit to his
summary

judgment

disagrees.

response.

Doc.

No.

194-3.

The

court

Regardless of the location of the light, the court

concludes that the significance of the injury to plaintiff from
sleep deprivation is not evident in the record.
Plaintiff

also

objects

to

the

court’s

statement

that

plaintiff was transferred from one general population unit to

22

another.

Plaintiff, however, does not provide support for a

claim that C-Unit was something other than a general population
unit.
Plaintiff

claims

population unit.
evidence.

that

C-Unit

Pod-3

was

not

a

general

This, however, is not clear from plaintiff’s

Plaintiff cites an exhibit (which was available to

plaintiff at the time of his response to the summary judgment
motion,

but

was

not

part

of

plaintiff’s

response)

in

which

living unit “C3” is referred to as a “restriction unit” meaning
that it is “more restricted than general population inmates.”
Doc.

No.

126-11.

Plaintiff

has

never

described

what

such

restrictions were and whether the restrictions were applied to
plaintiff.

Therefore, plaintiff’s objection is not pertinent to

the court’s overall analysis because the court acknowledged and
evaluated

the

less

desirable

living

conditions

alleged

by

plaintiff, including exposure to more inmates under restriction
and exposure to inmates who were more hostile or threatening.
Doc. No. 224, pp. 21-22.

Plaintiff was not subject to formal

discipline or a change in incentive level.

And, plaintiff’s

treatment in C-Unit was not significantly different from the
treatment of other general population inmates in C-Unit or the
normal conditions of confinement endured by a great number of
inmates.

Plaintiff has never asserted that he was placed on

restrictions or given other discipline, only that he was housed
23

in a unit that he has labeled a disciplinary and restriction
unit,

when

he

was

previously

labeled an “honor” unit.

housed

in

what

plaintiff

has

These labels are not sufficient to

prove a chilling injury whether or not C-Unit Pod 3 is a general
population unit.
order that:
in

The court concluded in the summary judgment

A-Unit

“The differences between [plaintiff’s] conditions
and

C-Unit

are

acknowledged,

but

they

are

considered to be so significant as to be chilling.”
24, p. 23.

not

Doc. No.

This remains the court’s conclusion.

E. Plaintiff’s claims regarding his right to privacy while
showering do not warrant relief from summary judgment.
Next,
analysis

defendant

of

plaintiff’s

correctional
stated

contends

officers

that

of

while

the

that

he

court
was

showering

in

Tenth

the

constitutionality

claim

that

Circuit

had

prison

guards

erred

viewed

C-Unit.
ruled

observing

in

by

our

female

The

court

that

members

of

the
the

opposite sex undressed or showering was dependent on the scope
of

the

intrusion,

the

manner

in

which

it

is

conducted,

the

justification for initiating it and the place in which it is
conducted.
1995).

See Hayes v. Marriott, 70 F.3d 1144, 1147 (10th Cir.

Plaintiff makes citation to Cumbey v. Meachum, 684 F.2d

712 (10th Cir. 1982) which was referenced in his response to the
summary

judgment

motion.

Plaintiff

24

also

cites

K.S.A.

22-

2521(b), K.S.A. 22-2524(a) and 28 C.F.R. § 115.15(b) which he
did not mention in his response to the summary judgment motion.
The Cumbey case, which is a per curiam opinion, is not
especially persuasive here, although neither is it inconsistent
with

our

ruling

on

summary

judgment.

As

the

Tenth

Circuit

stated in Adkins v. Rodriguez, 59 F.3d 1034, 1037-38 (10th Cir.
1995):
Although we stated in Cumbey inmates have a right
to privacy limited by legitimate penological interests
in prison security, the statement was addressed to a
threshold determination whether plaintiff’s entire
action was properly dismissed as frivolous.
Thus, we
vacated a portion of a district court’s order
dismissing an inmate’s complaint that female guards’
regular viewing of male inmates engaged in personal
activities does not “necessarily fall short of a
cognizable constitutional claim.” 684 F.2d at 714.
The Hayes case which this court cited in our summary judgment
opinion

considered

the

Cumbey

decision

and

complete discussion of the issues involved.

provides

a

more

Our reliance upon

Hayes should not be considered a mistake or a renunciation of
Cumbey.
Plaintiff’s citation to the state statutes represents new
authority

which

plaintiff’s
addition,
searches,

could

response
K.S.A.

not

the

have
to

been

the

22-2521(b)
situation

presented,

but

summary

judgment

appears

to

before

this

was

motion.

pertain
court.

not,

to

in
In

strip

Plaintiff’s

reference to 28 C.F.R. § 115.15(b) also could have been made in

25

response to the summary judgment motion, but plaintiff did not
so do.

Furthermore, it is unclear whether or how plaintiff’s

fact situation is at odds with the federal regulation.

As the

court stated, plaintiff’s evidence does not indicate the extent
of plaintiff’s exposure, the frequency, the length of time, the
distance of observation or whether a legitimate purpose existed
for observation.

Finally, plaintiff also does not allege that

his treatment in this regard was different from that of any
other inmate in C-Unit or the normal conditions of confinement
endured by a great number of inmates.
F.
Summary judgment against plaintiff’s “campaign
harassment” claim should not be altered or amended.

of

Next, plaintiff argues that the court erred in holding that
summary judgment was warranted against plaintiff’s “campaign of
harassment”

claim.

plaintiff’s

prior

expand

the

upon

Plaintiff’s
arguments,

claims

he

argumentation

although

described

in

mainly

plaintiff
his

rehashes

appears

response

to

to
the

summary judgment motion and in his affidavit in support of the
response

by

claiming

couple of months.”
grounds

to

change

there

were

sixteen

cell

Doc. No. 228 at p. 20.
our

decision

on

searches

“in

a

The court sees no

plaintiff’s

“campaign

of

harassment” claim.
G.
The court’s qualified immunity findings should not be
altered.

26

Finally, plaintiff contends the court erred by concluding
that defendant’s claim of qualified immunity was valid.

In the

summary judgment order the court quoted Saucier v. Katz, 533
U.S. 194, 205 (2001) as follows:

“It is sometimes difficult for

an officer to determine how the relevant legal doctrine . . .
will apply to a factual situation the officer confronts . . . If
the officer’s mistake as to what the law requires is reasonable
.

.

.

,

the

officer

is

entitled

to

the

immunity

More recently, the Supreme Court commented that:

defense.”

“’We do not

require a case directly on point’ before concluding that the law
is clearly established, ‘but existing precedent must have placed
the

statutory

or

constitutional

question

beyond

debate.’”

Stanton v. Sims, 134 S.Ct. 3, 4-5 (2013)(quoting Ashcroft v. alKidd,

131

S.Ct.

controlling

2074,

authority,

2083
we

may

(2011)).
conclude

“In
that

the
a

absence

of

constitutional

right is clearly established if there is a ‘robust consensus of
cases of persuasive authority.’”

Stewart v. Beach, 701 F.3d

1322, 1332 (10th Cir. 2012)(quoting al-Kidd, 131 S.Ct. at 2084)).
Plaintiff mainly relies upon broadly stated case law which
sets

out

exercise

the
of

legal

First

principles

Amendment

against

rights.10

10

retaliation
But,

looking

for

the

at

the

Plaintiff did not cite a single case involving retaliation for the exercise
of First Amendment rights in his response to the summary judgment motion.
Plaintiff cited one case for this argument in his brief in support of the
motion to alter and amend. But, that case does not apply qualified immunity
analysis. Plaintiff’s reply brief in support of his motion to alter or amend

27

evidence

presented

by

plaintiff

regarding

defendant’s

alleged

retaliatory conduct and viewing that evidence in a light most
favorable

to

plaintiff,

authority

to

alleged

actions

have

we

placed
in

unconstitutional.

do

not

defendant
this

case

perceive

on

fair

adequate

warning

would

be

case

that

his

considered

We also find it was not established beyond

debate in 2011 and 2012 that plaintiff had a right not to be
retaliated

against

in

the

manner

alleged

(with

appropriate

reasons,

plaintiff’s

evidentiary support) by plaintiff.
IX.

CONCLUSION
In

motion
denied.

conclusion,
to

alter

for

or

the

amend

above-stated
judgment

(Doc.

No.

226)

shall

be

Plaintiff’s amended motions to file additional pages

and to file a supplemental exhibit (Doc. Nos. 236 and 238) shall
be granted.
IT IS SO ORDERED.
Dated this 1st day of May 2014, at Topeka, Kansas.

s/ Richard D. Rogers
Richard D. Rogers
United States District Judge

cites several cases including a District of Kansas case which has some
similarities to the facts alleged here.
None of the cases place the
constitutionality of the conduct alleged in this case beyond debate; nor do
they amount to a robust consensus of authority as to plaintiff’s claims.

28