Counce v. Wolting et al

Filing 238

MEMORANDUM AND ORDER. The court adopts and incorporates its Order of December 20, 2019 and, to the extent such communications might be deemed a request for relief, denies such request. (Dkt. 235 - 237 ). Future communications of a similar nature will be summarily denied by reference to this Order. Signed by District Judge J. Thomas Marten on 10/8/2020. Mailed to pro se party Kenneth Counce at the Kaufman County Jail by regular mail. (mam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KENNETH COUNCE,
Plaintiff,
v.
Case No. 13-3199-JTM-KGS
RYAN M. WOLTING, et al.,
Defendants.
MEMORANDUM AND ORDER

The court granted summary judgment against plaintiff Kenneth Counce’s 42
U.S.C. § 1983 claims of excessive force and deliberate indifference to medical needs on
March 2, 2018. (Dkt. 251). The court determined granted the defendants’ summary
judgment motions, and found, based in part upon its review of dash cameral video,
that no reasonable jury could find that defendant Wolting used excessive force during
Counce’s arrest. The Tenth Circuit affirmed the decision on January 9, 2019. (Dkt. 227).
Since that time, Counce has submitted a series of letters to the Clerk of the Court.
On December 20, 2019, the court found that to such extent a letter might be deemed a
Motion for Relief under Federal Rule of Civil Procedure 5(c) or 60(b), the request was
untimely. The court found that defendant’s letter was “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.” (Dkt. 230, at 2).

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Since then Counce has submitted three further letters to the court. These
reference television news reports produced following the death of George Floyd in
Minnesota. None of these communications present newly-discovered, admissible
evidence relevant to Counce’s particular claims against these particular defendants. Nor
do the communications show how evidence of a similar nature, with reasonable
diligence, could not have been presented in 2018. To the contrary, Counce simply again
offers his interpretation of the dash camera videos, an interpretation previously rejected
by this court and the Tenth Circuit.
The court adopts and incorporates its Order of December 20, 2019 and, to the
extent such communications might be deemed a request for relief, denies such request.
(Dkt. 235-37). Future communications of a similar nature will be summarily denied by
reference to this Order.

s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE

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