Kinnell v. Does et al

Filing 19

MEMORANDUM AND ORDER adopting Report and Recommendations 8 : Overruling 9 Objection to Order of Magistrate Judge; denying 12 Motion to Amend Complaint; denying 13 Motion to Appoint Counsel. This action is dismissed. Signed by District Judge Julie A. Robinson on 3/6/14. Mailed to pro se party Rolly Kinnell by regular & certified mail; Certified Tracking Number: 7010 2780 0003 1927 1510 (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ROLLY O’DELL KINNELL,
Plaintiff,
v.
BARACK OBAMA, et al.,
Defendants.
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Case No. 13-4066-JAR-DJW

MEMORANDUM AND ORDER
On June 20, 2013, Plaintiff Rolly O’Dell Kinnell filed a Civil Complaint that included an
attachment titled “Employment Discrimination Complaint.” He then filed an Amended
Complaint on July 1, 2013. Plaintiff complains of the following matters: his 1998 state
conviction; his subsequent incarceration; a parole violation; his ineligibility to vote; the results
of the November 6, 2012 election; and his prior unsuccessful efforts to litigate these matters.
Plaintiff names several defendants in the captions and descriptions of parties, including President
Barack Obama, members of Congress, the United States District Court for the District of Kansas,
the Tenth Circuit, and state courts of Kansas. On August 5, 2013, Magistrate Judge David J.
Waxse issued a Report and Recommendation (Doc. 8) recommending dismissal of this action for
lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(h)(3), as well as for failure to
state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii), and for seeking monetary relief against
defendants who are immune from such relief under 28 U.S.C. § 1915(e)(2)(B)(iii). Plaintiff filed
an objection within the fourteen-day period prescribed by 28 U.S.C. § 636(b)(1) and Fed. R. Civ.
P. 72, to Judge Waxse’s proposed findings and recommendations, as well as a Motion to Amend
Complaint (Doc. 12), and a Motion to Appoint Counsel (Doc. 13). For the reasons explained in

detail below, the Court overrules Plaintiff’s objection, adopts the Report and Recommendation,
and denies Plaintiff’s Motion to Amend Complaint and Motion to Appoint Counsel.
I.

Objection to Report and Recommendation
Upon objection to a magistrate judge’s order on a dispositive matter, the district court

“must determine de novo any part of the magistrate judge’s disposition that has been properly
objected to.”1 Objections are proper only if they are both timely and specific.2 An objection is
timely if made within fourteen days after the magistrate judge issues a recommendation.3 An
objection is sufficiently specific if it “enables the district judge to focus attention on those
issues—factual and legal—that are at the heart of the parties’ dispute.”4 If objections are not
timely or properly made, the court has broad discretion to review the recommendation under any
standard that it finds appropriate.5 In conducting its review, “[t]he district judge may accept,
reject, or modify the recommended disposition; receive further evidence; or return the matter to
the magistrate judge with instructions.”6
Because Plaintiff appears pro se in this case, the Court must liberally construe his
pleadings.7 Liberal construction, however, “does not relieve the plaintiff of the burden of

1

Fed. R. Civ. P. 72(b)(3).

2

United States v. One Parcel of Real Property Known as 2121 East. 30th St., 73 F.3d 1057, 1059 (10th Cir.

1996).
3

Id.

4

See id. (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)).

5

Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991).

6

Id.

7

McWilliams v. State of Colo., 121 F.3d 573, 574 (10th Cir. 1997).

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alleging sufficient facts upon which a recognized legal claim could be based.”8 Additionally,
Plaintiff’s status as a pro se litigant does not excuse the pursuit of repetitive litigation.9
Because Plaintiff filed his objections within fourteen days of the Report and
Recommendation in this case, his objections are timely. However, the pleading that Plaintiff
filed in objection to dismissal is largely incomprehensible, arguing that this Court is “in conflict
with rules that Judges can’t practice law from the bench,” and that the Tenth Circuit “is under
attack for chattel property racketeering and false imprisonment” because his 1998 conviction
was “void under ex post facto,” that Judge Waxse’s report is fraudulent, and that Plaintiff has a
right to recall the November 2012 election as a member of the Symbionese Liberation Party.10
Simply put, Plaintiff’s objection is not sufficiently specific to “enable[ ] the district judge to
focus attention on those issues—factual and legal—that are at the heart of the parties’ dispute.”11
The Court finds that Plaintiff does not properly object to the Magistrate Judge’s disposition.
Nonetheless, the Court finds itself in complete agreement with the conclusion reached in
the Report and Recommendation. Under 28 U.S.C. § 1915(e)(2), the Court must consider the
merits of all cases in which a plaintiff proceeds in forma pauperis, and must dismiss any action
that it determines frivolous or malicious, fails to state a claim on which relief may be granted, or
seeks monetary relief against a defendant who is immune from such relief.12 The Court has
conducted a de novo review and agrees with Judge Waxse’s conclusion that Plaintiff lacks
8

Id.

9

Id.

10

Doc. 9.

11

Arn, 474 U.S. at 147.

12

28 U.S.C. § 1915(e)(2)(B)(ii).

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subject matter jurisdiction, fails to state a claim, and seeks monetary damages against defendants
who are immune. Plaintiff’s objections are overruled, and the Court accepts the August 5, 2013
Report and Recommendation and adopts it as its own.
II.

Motion to Amend Complaint
A court may deny leave to amend where, among other reasons, “amendment would be

futile.”13 A proposed amendment is futile if the complaint, as amended, would be subject to
dismissal for any reason. . . .”14
Although Plaintiff has not attached a proposed amended complaint, he states that he
seeks to add The Honorable Sam A. Crow as a defendant and to require Judge Waxse to set an
evidentiary hearing regarding an order Judge Crow issued in separate proceedings regarding
whether Judge Crow was acting as defense counsel. But, as explained in the Report and
Recommendation, Judge Crow is immune for judicial actions taken within his jurisdiction.15
Plaintiff also appears to restate his challenge to his 1998 state conviction pursuant to 28 U.S.C.
§ 2254 and makes incomprehensible complaints about the Prison Litigation Reform Act, both
discussed and dismissed in the Report and Recommendation.16 Plaintiff’s proposed amendments
are futile and therefore denied.

13

Jefferson Cnty. Sch. Dist. No. R-1 v. Moody’s Investor’s Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999).

14

Watson v. Beckel, 242 F.3d 1237, 1239–40 (10th Cir. 2001).

15

Mires v. Waco, 502 U.S. 9, 11–12 (1991) (explaining federal judges are immune for judicial actions taken
within their jurisdiction).
16

Doc. 8 at 3–4.

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III.

Motion to Appoint Counsel
Plaintiff renews his request for appointment of counsel, which was previously denied by

Judge Waxse.17 A party in a civil action has no right to appointment of counsel.18 The Court
may, however, appoint counsel pursuant to § 1915(e)(1) for a litigant proceeding in forma
pauperis. The appointment of counsel is a matter within the sound discretion of the district
court.19 In deciding whether to appoint counsel under § 1915(e)(1), the court should consider
“the merits of the litigant’s claims, the nature of the factual issues raised in the claims, the
litigants’ ability to present his claims, and the complexity of the legal issues raised by the
claims.”20 Because Plaintiff’s claims lack merit, the Court concludes that his Motion for
Appointment of Counsel should be denied.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s objection to the
Report and Recommendation of Magistrate Judge Waxse (Doc. 9) is overruled; Judge Waxse’s
Report and Recommendation (Doc. 8) is adopted in its entirety, and this action is dismissed.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Amend Complaint (Doc. 12)
and Motion to Appoint Counsel (Doc. 13) are denied.
IT IS SO ORDERED.
Dated: March 6, 2014
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

17

Doc. 7.

18

Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989).

19

Johnson v. Johnson, 466 F.3d 1213, 1217 (10th Cir. 2006).

20

Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995).

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