Counce v. Wolting et al

Filing 230

MEMORANDUM AND ORDER re: 229 - Because the court lacks jurisdiction to grant any of the relief requested by Counce, the requests made in his December 19, 2019 letter are DENIED. Signed by District Judge J. Thomas Marten on 12/20/2019. Mailed to pro se party Kenneth Counce at Kaufman County Jail P.O. Box 849, Kaufman, TX 75142 by regular mail. (jk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KENNETH COUNCE,
Plaintiff,
v.

Case No. 13-3199-JTM

RYAN WOLTING et al.,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the court on plaintiff Kenneth Counce’s letter to the
Clerk of Court received and filed on December 19, 2019. Though styled as a letter to the
Clerk of Court, Counce’s submission indicates that he wishes to file a petition under
Federal Rule of Civil procedure 5(c) and Rule 60(b) pertaining to an order issued on or
about September 22, 2015 by the Honorable Steve Johnson of the Ellsworth County,
Kansas District Court. This state court order ostensibly required the Kansas Highway
Patrol and the Ellsworth County Attorney to return, among other items of personal
property, $520.00 in currency and a 2000 Plymouth Mini Van.
To the extent Counce’s letter could be construed as a request for this court to order
the Kansas Highway Patrol and Ellsworth County Attorney to return the personal
property in question, the court lacks the jurisdiction to do so. This court’s judgment as to
Mr. Counce’s claims became final on March 2, 2018, when the court entered a
Memorandum and Order granting summary judgment in favor of all defendants based
upon a finding that they were entitled to qualified immunity. (Dkt. 215, 216). Counce
appealed that decision, which was affirmed by the Tenth Circuit Court of Appeals on

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January 31, 2019. (Dkt. 227). Accordingly, there is no active case or controversy before
this court involving these parties for this court to resolve. See DaimlerChrysler Corp. v.
Cuno, 547 U.S. 332, 126 S.Ct. 1854, 1861 (2006) (explaining the limitation of federal court
jurisdiction under Article III of the United States Constitution to actual cases or
controversies).
To the extent Counce’s letter could be construed as a motion for relief under either
Federal Rule of Civil Procedure 5(c) or 60(b), it is likewise denied. Rule 5(c) provides no
basis for relief because it is only a procedural rule governing service of pleadings when a
case involves a large number of defendants. Rule 60(b) allows a movant to seek relief
from a final judgment on various grounds, but subsection (c)(1) of that rule specifies that
the motion must be made within a reasonable time, and for reasons listed in sections
(b)(1), (2), and (3), not more than a year after entry of the judgment. In this instance, the
motion has not been filed within a reasonable time, particularly in light of the fact that
Counce pursued a direct appeal of this court’s decision to the Tenth Circuit Court of
Appeals, which affirmed this court’s grant of summary judgment.
Because the court lacks jurisdiction to grant any of the relief requested by Counce,
the requests made in his December 19, 2019 letter are DENIED.
IT IS SO ORDERED.
Dated this 20th day of December, 2019.
/s/J. Thomas Marten
THE HONORABLE J. THOMAS MARTEN
UNITED STATES DISTRICT COURT

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