Kinnell (31576) v. Kansas, State of et al

Filing 23

ORDER ENTERED: This action is dismissed and all relief is denied for failure to allege facts to state a claim under 28 U.S.C. 2241 and failure to show full and proper exhaustion of state remedies. Documents 16 , 17 , 18 , 19 , 20 , 21 and [2 2] are stricken from the record. To the extent Document 16 might be read to include petitioner's "Motion for Clear Default" against the undersigned judge, it states no valid grounds or legal authority and is denied. The court certifies that any appeal of this matter is not taken in good faith. Signed by Senior District Judge Sam A. Crow on 12/6/2012. (Mailed to pro se party Rolly O'Dell Kinnell by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROLLY O’DELL KINNELL,
Petitioner,
v.

CASE NO.

12-3182-SAC

DAVID McKUNE,
Respondent.
O R D E R
On October 18, 2012, the court entered an Order screening
this

action,

pursuant

to

which
28

was

U.S.C.

filed
§

by

Mr.

2241.

Kinnell
The

as

court

a

petition

pointed

out

deficiencies in the petition and ordered Mr. Kinnell to show
good

cause

why

this

action

should

reasons stated in that order.

not

be

dismissed

for

the

In brief, the court found that

Mr. Kinnell failed to state facts showing he is entitled to
relief under § 2241 and failed to show that he has exhausted all
administrative and state court remedies regarding any challenges
he may have to his parole revocation.

Petitioner was warned

that if he failed to show good cause within the time allotted,
this action would be dismissed without further notice.
Mr. Kinnell has been an abusive litigant for decades.
is abusive in two main ways.
petition

or

complaint,

he

He

First, once he files an initial

submits

a

stream

repetitive, abusive motions or other materials.
1

of

unnecessary,
In this case,

he submitted at least 7 additional pleadings after his original
petition,

which

caused

difficult than necessary.

initial

screening

to

be

far

more

Various filing restrictions have been

imposed upon Mr. Kinnell over the years, which he generally
ignores.

In this case, the court directed Mr. Kinnell to “file

one response only” to the court’s screening order and ordered
that “it must not exceed 5 pages.”
[a]ny

extra

stricken.”

papers

or

filings

Petitioner was warned that
submitted

by

him

In blatant disregard of the court’s

will

be

orders, Mr.

Kinnell has submitted 10 sets of materials since the court’s
screening order containing a total of 167 pages.

Only two of

these filings may have been submitted prior to his receipt of
the court’s explicit order, and those two are duplicates of one
another.

None contains a clear title, even though Mr. Kinnell

was directed to

file

one document entitled

“Response.”

The

court has generally had to advise the clerk’s office as to how
to docket each submission, and often for sake of simplicity has
directed the clerk to docket it as a “supplement.”

Petitioner

has attached many duplicate documents to his filings for no
reason, including copies of this court’s screening order.

The

court finds that documents 16 through 22 must be stricken from
the record.
The second way in which Mr. Kinnell has been and continues
to be abusive is that he raises the same claims over and over in
2

whatever type of action he files.

Here, he initially appeared

at least in part to be challenging the recent revocation of his
parole, which he has not challenged previously in this court.
But then he submitted a stream of materials attempting to also
challenge his 1998 conviction and
which

he

has

long

been

28 U.S.C.

designated

a

§ 1915(g)

three-strikes

under

litigant,

despite the fact that this court again dismissed these claims in
its screening order in this case.

Mr. Kinnell has been provided

with the legal bases for the dismissal of these two claims many
more times than should have been necessary.

All Mr. Kinnell’s

allegations regarding these two repeatedly-rejected matters are
frivolous

and

abusive.

Mr.

Kinnell

is

notified

that

any

submission in the future in any case filed by him that includes
any reference to these two repeatedly-rejected claims shall be
stricken from the record, and nothing in that abusive filing
will be considered further.
In

this

petitioner’s

case,
only

the

proper

court

has

considered

Response.

The

Document

court

15

reviewed

as

that

Response and finds that Mr. Kinnell has not alleged additional
facts to show that his federal constitutional rights have been
violated so that he is entitled to relief under § 2241 and has
not shown that he has fully and properly exhausted all state
remedies on any claims regarding the revocation of his parole.
All

materials

submitted

by

Mr.
3

Kinnell

subsequent

to

this

Response

(Doc.

15)

are

stricken

from

the

record

as

not

in

compliance with the court’s order dated October 18, 2012, and
abusive.
Mr.

Kinnell

was

also

informed

in

the

court’s

screening

order that “any action submitted by (him) in the future may be
returned by the clerk without being filed” or may be “stricken
or summarily dismissed by the court upon filing” if it fails to
comply with the long-standing filing restrictions as well as the
new directives set forth in the court’s prior order herein.
has

not

submitted

restrictions.

any

reasonable

Accordingly,

he

is

objection
warned

that

to

He

these

documents

submitted by him in the future may be reviewed prior to filing
and returned if they do not comply with all filing restrictions
that have been imposed upon him.
The court further finds that should Mr. Kinnell decide to
appeal this order of dismissal, the court certifies that such an
appeal would not be taken in good faith.
IT IS THEREFORE BY THE COURT ORDERED that this action is
dismissed and all relief is denied for failure to allege facts
to state a claim under 28 U.S.C. § 2241 and failure to show full
and proper exhaustion of state remedies.
IT IS FURTHER ORDERED that Docs. 16, 17, 18, 19, 20, 21 and
22 are hereby stricken from the record.
IT IS FURTHER ORDERED that to the extent Document 16 might
4

be

read

to

include

petitioner’s

“Motion

for

Clear

Default”

against the undersigned judge, it states no valid grounds or
legal authority and is denied (Doc. 16).
IT IS FURTHER ORDERED that the court certifies that any
appeal of this matter is not taken in good faith.
IT IS SO ORDERED.
Dated this 6th day of December, 2012, at Topeka, Kansas.

s/Sam A. Crow
U. S. Senior District Judge

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