Beauclair (ID 74638) v. Green et al

Filing 9

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 2 to proceed without prepayment of fees is hereby reconsidered and granted. Plaintiff is granted thirty (30) days in which to show cause why this action should not be dismissed. Plaintiff's motion 7 for service of summons is denied without prejudice. Signed by Senior District Judge Sam A. Crow on 01/16/15. Mailed to pro se party Danny E. Beauclair by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DANNY E. BEAUCLAIR,
Plaintiff,
v.

CASE NO.

14-3023-SAC

CAROL GREEN,
Clerk, Kansas Appellate
Courts, et al.,
Defendants.
MEMORANDUM AND ORDER
This pro se civil rights complaint was filed pursuant to 42
U.S.C. § 1983 by a state prison inmate.1
that

defendants

who

are

court

clerks

Mr. Beauclair claims

deliberately

“delay(ed)

mailing out a Court Order” in violation of state law and thereby
caused

the untimeliness of his attempted

appeal.

The court

finds that this action is subject to dismissal for failure to
state a federal constitutional claim.

PLAINTIFF’S LITIGATION HISTORY

1

Plaintiff’s original complaint (Doc. 1) was not upon forms and has been
completely superseded by his Amended Complaint (Doc. 6).
The court has
considered the Amended Complaint only, which consists mainly of attached
copies of pages from the original complaint and “Declaration” of plaintiff.
1

The

court

takes

judicial

notice

of

the

appellate

court

docket in State v. Beauclair (Kan.App. Case No. 91999)2 that is
referred to by plaintiff herein
99CR4640),

(Shawnee Co. D.Ct. Case No.

and other cases filed by Mr. Beauclair for which

written opinions are available.

In 2001, Danny Beauclair pled

no contest to one count of rape and one count of aggravated
criminal sodomy, each of a child under 14 years of age, in
exchange for the state dismissing a second count of rape.
State v. Beauclair, 130 P.3d 40, 41-42 (Kan. 2006).

See

He was

sentenced in 2002, to “concurrent minimum terms of 184 months
for the rape charge and 136 months for the aggravated sodomy
charge.”

Id. at 43.

Withdraw Plea.

In 2003, Mr. Beauclair filed a Motion to

The trial court denied the motion, and Beauclair

timely appealed.

The Kansas Court of Appeals (KCA) reversed in

State v. Beauclair, 116 P.3d 55 (July 29, 2005).

However, the

State appealed, and the Kansas Supreme Court (KSC) reversed the
KCA and affirmed the trial court’s denial of Beauclair’s motion
to withdraw.

State v. Beauclair, 130 P.3d at 40.

The KSC then

remanded in Case No. 91999 for consideration of “claims not
considered” in the KCA’s prior opinion.
Beauclair’s

claims

denial of relief.

and

this

time

affirmed

The KCA considered
the

lower

court’s

State v. Beauclair, 146 P.3d 709, 2006 WL

2

This docket is available on the website of the Clerk of the Kansas
Appellate Courts.
2

3409225

(Kan.App.

Nov.

22,

2006).

In

these

proceedings

generally referred to as Mr. Beauclair’s direct appeal, the KSC
denied his Petition for Review on March 29, 2007.

Id.

Mr.

Beauclair also challenged his sentence by way of state postconviction

motions.

In

2007,

he

filed

a

motion

to

correct

illegal sentence and another motion to withdraw his plea.
were

summarily

denied

by

the

trial

court.

See

Beauclair, 223 P.3d 837 (Kan.App. Feb. 12, 2010).

Both

State

v.

He timely

appealed, the KCA affirmed, and the KSC denied his Petition for
Review in June 2010 (App.Case No. 100161).

Id.

In 2007 and

2010, Mr. Beauclair also filed unsuccessful habeas petitions in
federal

court

challenging

his

state

convictions.

See

e.g.,

Beauclair v. Goddard, 2012 WL 763103 (D.Kan. Mar. 6, 2012), COA
denied, 530 Fed.Appx. 781 (10th Cir. Mar. 13, 2013).
With

respect

to

civil

actions

in

federal

court,

Mr.

Beauclair has been designated a three-strikes litigant pursuant
to

28

U.S.C.

November 2013.

§

1915(g).

His

third

strike

was

assessed

in

Beauclair v. Dowd, Case No. 13-3169-RDR (D.Kan.

Nov. 22, 2013), aff’d, App.Case No. 14-3036 (October 23, 2014).
After being notified that he had accumulated his third strike,
Mr. Beauclair proceeded to file six new civil actions in this
court.

When the Tenth Circuit affirmed the judgment of the

district court in Beauclair v. Dowd it imposed an additional
strike upon Mr. Beauclair “for his wholly meritless claim in
3

district

court

and

his

frivolous

appeal.”

Mr.

Beauclair

currently has seven civil cases pending in this court alone.

In

addition, five civil cases previously filed by him in this court
have been dismissed.

ALLEGATIONS AND CLAIMS
In this lawsuit, plaintiff names as defendants Carol Green,
Clerk,

and

Jason

Courts of Appeal.

Oldham,

Chief

Deputy

Clerk,

of

the

Kansas

As the factual background for this complaint,

Mr. Beauclair alleges the following.

On November 5, 2013, he

filed a “Motion to Recall Mandate” in Case No. 91999.

Therein,

he

a

claimed

that

“the

Kansas

Court

of

Appeals

made

‘void

judgment’ with its ruling (sic) filed on 7-29-2005 and on 11-222006”3 because that Court’s rulings were inconsistent with due
process under the 14th Amendment and with K.S.A. 22-3210.”4
On December 12, 2013, the KCA denied plaintiff’s motion to
recall mandate.

Plaintiff had 14 days from this decision to

3

These rulings are not both decisions of the KCA as plaintiff’s
suggests. The later decision was that of the KSC denying Beauclair’s final
Petition for Review on direct appeal.
4

In his attached “Declaration”, plaintiff describes the grounds raised
in his Motion to Recall Mandate as: there was no factual basis for his plea,
he was not informed of direct consequences of his plea including the “correct
range of . . . incarceration” or consequences of post-release supervision,
and he was not informed of his “maximum possible penalties with bifurcated
sentencing.”
He describes his “Motion for Rehearing or Modification” as
claiming that the “judgment was void” because he “did not get a full and fair
plea hearing” and there was “plain error” in his criminal case.
Thus, the
grounds in plaintiff’s motions were clearly challenges to his 2002 state
conviction or sentence.

4

file a “motion per Rule 7.05.”

On December 26, 2013, defendant

Green and/or Oldham mailed a copy of the decision to Beauclair.
Defendants’ failure to mail the decision on the date of filing
violated Rule 7.03.

Defendants deliberately delayed mailing the

decision for 14 days, making it impossible for plaintiff to file
a timely Rule 7.05 motion.

Defendants did not have discretion

to delay mailing the decision “to keep plaintiff from filing his
motion to reconsider.”
Plaintiff received the decision on December 31, 2013.
January

3,

2014,

he

mailed

Modification” to the KCA.
that motion.

a

“Motion

for

Rehearing

On
or

His current mailing address was on

On January 15, 2014, he received an envelope from

the Clerk’s office post-marked December 26, 2013.

Inside was a

letter from Oldham dated January 10, 2014, stating that he had
received Beauclair’s motion for rehearing, but it could not be
filed and was returned because it must have been filed no later
than December 26, 2013, per Rule 7.05.
On January 16, 2014, plaintiff mailed a “Motion to File out
of

Time

due

to

Manifest

Injustice”5

and

another

“Motion

for

Rehearing or Modification” to the KCA for filing in Case No.

5

The right to appeal a decision of the Kansas appellate courts is purely
statutory and is neither a vested nor a constitutional right.
Williams v.
Lawton, 288 Kan. 768, 778, 207 P.3d 1027 (Kan. 2009). The filing of a timely
notice of appeal is jurisdictional. Rowland v. Barb, 40 Kan.App.2d 493, 193
P.3d 499 (Kan. App. 2008). The Kansas appellate courts have jurisdiction to
consider an appeal only if the appeal is taken in the manner prescribed by
statute. State v. Legero, 278 Kan. 109, 111 (Kan. 2004).
5

91999, both with his current address.

On January 30, 2014, he

received an envelope from Clerk Green with the statement that
she had received his motions but they could not be filed and
were returned.

Defendants refused to file plaintiff’s motions

even though they had “caused any delay by not following Rule
7.03.”

“Carol Green did not address why they waited” 14 days to

mail out the denial Order.

Plaintiff “suffered actual injury”

by being “denied to file a timely motion under Kansas Supreme
Court Rule 7.03 and Rule 7.05.”6
Plaintiff

claims

that

defendants

acted

with

deliberate

indifference and/or reckless disregard to frustrate and impede
his rights, “cast stumbling blocks in his path” to keep him from
filing a Rule 7.05 motion, and delayed mailing the decision for
6

Plaintiff neither quotes nor adequately summarizes the language of any
Kansas court rule or statute cited in his complaint. “Rule 7.03. Decision of
Appellate Court” provides in pertinent part:
(a) Decision. A decision of an appellate court will be announced
by the filing of the opinion with the clerk of the appellate
courts. On the date of filing, the clerk of the appellate courts
will send one copy of the decision to the counsel of record for
each party or to the party if the party has appeared in the
appellate court but has no counsel of record . . . .
“Rule 7.05
provides:

Rehearing

or

Modification

in

Court

of

Appeals”

pertinently

(a) Motion for Rehearing or Modification. A motion for rehearing
or modification in a case decided by the Court of Appeals may be
served and filed not later than 14 days after the decision is
filed. A copy of the court’s opinion must be attached to the
motion.
(b) Effect of Motion.
A motion for rehearing or modification
stays the issuance of the mandate pending determination of the
issues raised by the motion.
A motion for rehearing or
modification is not a prerequisite for review and does not extend
the time for filing a petition for review by the Supreme Court.
6

the express purpose of destroying his right of access “with due
process and/or equal protection.”
defendants

“sabotaged”

his

Plaintiff also claims that

“motions

by

the

time

delays”

to

“cover the errors of the State Courts.”
Plaintiff

asserts

that

defendants

violated

his

federal

constitutional rights “when they violated Kansas Supreme Court
Rule 7.03.”

He further asserts that by “not timely mailing out

that Order so he could timely file a motion for reconsideration”
defendants

“violated

(his)

‘access

to

the

courts’

and/or

‘freedom of speech’ under the lst Amendment, denied (his) ‘due
process of law’ and/or ‘equal protection of law’ under the 14th
Amendment,” and acted in an arbitrary and capricious manner.
Plaintiff seeks relief in the form of a declaration that
defendants

violated

his

constitutional

rights,

as

well

as

a

“preliminary and permanent injunction ordering defendants . . .
to follow Rule 7.03 and mail out the court’s order” to the
parties

“the

same

day

the

order

was

filed.”

In

addition,

plaintiff seeks compensatory damages “in the amount of cost of
this

action

against

each

defendant;

nominal

damages

“in

the

maximum amount allowed by law,” and punitive damages in the
amount of $50,000.00 against each defendant.

SCREENING

7

Because Mr. Beauclair is a prisoner suing state officials,
the court is required by statute to screen his complaint and to
dismiss the complaint or any portion thereof that is frivolous,
fails to state a claim on which relief may be granted, or seeks
relief from a defendant immune from such relief.
1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(B).

28 U.S.C. §

“To state a claim

under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and
must show that the alleged deprivation was committed by a person
acting under color of state law.”
48-49

(1988)(citations

omitted);

F.2d 1518, 1523 (10th Cir. 1992).
pro

se

complaint

and

applies

West v. Atkins, 487 U.S. 42,
Northington

pleaded

allegations

Jackson,

973

A court liberally construes a

“less

stringent

formal pleadings drafted by lawyers.”
U.S. 89, 94 (2007).

v.

standards

than

Erickson v. Pardus, 551

In addition, the court accepts all wellin

the

complaint

as

Blake, 469 F.3d 910, 913 (10th Cir. 2006).

true.

Anderson

v.

On the other hand,

“when the allegations in a complaint, however true, could not
raise

a

claim

appropriate.
(2007).

of

entitlement

to

relief,”

dismissal

is

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558

A pro se litigant’s “conclusory allegations without

supporting factual averments are insufficient to state a claim
upon which relief can be based.”
1106, 1110 (10th Cir. 1991).

Hall v. Bellmon, 935 F.2d

The complaint must offer “more
8

than labels and conclusions, and a formulaic recitation of the
elements of a cause of action.”

Twombly, 550 U.S. at 555.

Its

“factual allegations must be enough to raise a right to relief
above the speculative level” and “to state a claim to relief
that is plausible on its face.”

Id. at 555, 570.

The court

“will not supply additional factual allegations to round out a
plaintiff’s complaint or construct a legal theory on plaintiff’s
behalf.”

Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th

Cir. 1997).

OTHER LEGAL STANDARDS
Immunity
The Eleventh Amendment bars suit against a state official
in

his

or

her

official

capacity

because

interest in such a suit is the State.

the

real

party

in

See Will v. Michigan

Dep’t. of State Police, 491 U.S. 58, 64, 71 (1989)(“Neither a
state, a state agency, nor an official of the State acting in
his or her official capacity, is a ‘person’ for purposes of §
1983.”).

A court may, in its discretion, raise the issue of

Eleventh Amendment immunity sua sponte.

See Nelson v. Geringer,

295 F.3d 1082, 1098 n.16 (10th Cir. 2002)(“[T]he [Supreme] Court
has

stated

that

judicial

consideration

issues sua sponte is discretionary.”).

9

of

Eleventh

Amendment

Court clerks and their agents are generally entitled to
absolute

quasi-judicial

immunity.

Coleman

v.

Farnsworth,

90

Fed.Appx. 313, 316-7 (10th Cir. 2004); see also Mullis v. United
States Bankr.Ct., 828 F.2d 1385, 1390 (9th Cir. 1987)(Bankruptcy
court clerks who allegedly failed to give proper counseling and
notice, filed an incomplete petition, and refused to accept an
amended

petition

had

absolute

quasi-judicial

immunity

from

damages for civil rights violations as these tasks are integral
parts of the judicial process.); Smith v. Erickson, 884 F.2d
1108, 1111 (8th Cir. 1989)(deputy district court clerk protected
by judicial immunity from damages for civil rights violations
allegedly committed in connection with the filing of a complaint
and other documents); Eades v. Sterlinske, 810 F.2d 723, 726
(7th

Cir.

1987).

The

Tenth

Circuit

described

the

immunity

afforded a court clerk in Coleman:
It is well established in this circuit that a judge is
absolutely immune from civil liability for judicial
acts, unless committed in clear absence of all
jurisdiction, and the same immunity continues even if
“flawed by the commission of grave procedural errors.”
Whitesel v. Sengenberger, 222 F.3d 861, 867 (10th Cir.
2000)(quotation
marks
and
citation
omitted).
Moreover, judges are “absolutely immune regardless of
their motive or good faith,” Smith v. Losee, 485 F.2d
334, 342 (10th Cir. 1973)(citing Doe v. McMillan, 412
U.S. 306, 319, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973)),
“even when the judge is accused of acting maliciously
and corruptly.” Pierson v. Ray, 386 U.S. 547, 553, 87
S.Ct. 1213, 18 L.Ed.2d 288 (1967).
We have extended
the
same
immunity
to
judicial
officers
where
performance of a judicial act is involved or their
duties have an integral relationship with the judicial
10

process.
See Whitesel, 222 F.3d at 867; Lundahl v.
Zimmer, 296 F.3d 936, 939 (10th Cir. 2002), cert.
denied, 538 U.S. 983, 123 S.Ct. 1797, 155 L.Ed.2d 675
(2003). Applying this standard, we have held a court
clerk enjoys absolute quasi-judicial immunity when he
or she performs a “judicial act,” such as entry of a
default judgment. See Lundahl, 296 F.3d at 939. . . .
The doctrine of absolute immunity ensures judges and
judicial officers perform their duties vigorously and
without fear of time-consuming, costly, “vindictive or
ill-founded damage suits brought on account of action
taken
in
the
exercise
of
their
official
responsibilities.”
See Smith v. Losee, 485 F.2d at
341 (quotation marks and citation omitted).
Coleman, 90 Fed.Appx. at 316-17; Dahl v. Charles F. Dahl, M.D.,
P.C. Defined Ben. Pension Trust, 744 F.3d 623, 630 (10th Cir.
2014)(citing
(1985)).

see

Cleavinger

v.

474

U.S.

193,

199

“[T]here is no immunity for acts taken in the “clear

absence of all jurisdiction.”
435

Saxner,

U.S.

349,

357

Id. (citing Stump v. Sparkman,

(1978)).

Otherwise,

“absolute

immunity

‘applies to all acts of auxiliary court personnel that are basic
and integral part[s] of the judicial function.’”

Mitchell v.

McBryde, 944 F.2d 22–9, 230 (5th Cir. 1990); Jackson v. Houck,
181 Fed.Appx. 372 (4th Cir. 2006); Dellenbach v. Letsinger, 889
F.2d

755,

763

(7th

Cir.

1989)(“The

danger

that

disappointed

litigants, blocked by . . . absolute immunity from suing the
judge directly, will vent their wrath on clerks . . . (is) a
reason

for

extending

judicial

absolute

immunity

to

such

an

adjunct”); Argentieri v. Clerk of Court for Judge Kmiotek, 420
F.Supp.2d 162 (W.D.N.Y. 2006)(clerks were assisting judges in

11

performing

essential

acknowledge

judicial

plaintiff’s

functions

motions

or

when

they

schedule

refused
his

to

court

proceedings).
Access to the Courts
It is well-established that an inmate has a constitutional
right of access to the courts.

However, it is equally well-

settled that in order “to present a viable claim for denial of
access, the inmate must allege and prove prejudice arising from
Defendants’ actions.”

Peterson v. Shanks, 149 F.3d 1140, 1145

(10th Cir. 1998)(citations omitted); Lewis v. Casey, 518 U.S.
343,

349

(1996).

requirement

by

An

inmate

may

demonstrating

that

satisfy

the

the

actual-injury

alleged

acts

or

shortcomings of defendants “hindered his efforts to pursue” a
non-frivolous legal claim.

Id. at 351-53.

Furthermore, the

Supreme Court plainly held in Lewis that “the injury requirement
is not satisfied by just any type of frustrated legal claim.”
Id.

at

354.

prisoners
directly

Rather,

are
or

the

prevented

collaterally”

their confinement.”

requisite
from
or

injury

attacking

challenging

occurs
“their

“the

only

when

sentences,

conditions

of

Id. at 355; see also Carper v. Deland, 54

F.3d 613, 617 (10th Cir. 1995).

DISCUSSION

12

Plaintiff brings this action pursuant to § 1983.
he

asserts

jurisdiction

U.S.C. § 1343(3).

under

several

provisions

However,

besides

28

His bald citations to 28 U.S.C. §§ 2283,

2284, “Fed.R. of Civ.Pro. 60”, and Kan.S.Ct. R. 7.03, 7.05 are
not explained.

Jurisdiction of this court is not conferred by

Rule 60, the cited sections in Chapter 28, or any Kansas Supreme
Court Rule.

Plaintiff also baldly asserts that this court has

“Supplemental

Jurisdiction.”

Unless

the

complaint

evinces

a

federal constitutional violation, this court need not exercise
supplemental

jurisdiction

over

state

law

claims.

State

law

violations generally fail to present a claim under § 1983.
Having considered all the materials filed by Mr. Beauclair,
the court finds that this action is subject to dismissal for
reasons that follow.
Defendants are Entitled to Immunity
Plaintiff

claims

that

he

sues

defendants

in

both

their

official and personal capacities.

The Clerk and Deputy Clerk of

the

state

Kansas

Appellate

Courts

are

officials.

As

such,

neither is a person who can be sued under § 1983 in his or her
official capacity.
Furthermore,
plaintiff’s

claims

judicial immunity.

both
for

defendants
damages

are

under

absolutely
the

doctrine

immune
of

to

quasi-

In this District, it has been expressly held

that:
13

the
discretionary act of determining whether a
submitted motion meets the filing requirements is a
duty that is an integral part of the judicial process
and constitutes performance of a judicial act as an
aid of the judge.
Wilkins

v.

Skiles,

2005

WL

627962

(D.Kan.

Mar.

4,

2005).

Plaintiff’s allegations plainly indicate that defendants’ acts
in

this

case

assisting

were

the

“within

court—that

the
is,

core
in

duties”

performing

of
a

closely associated with the judicial process.”

a

clerk

‘function

“in
[]

See Coleman, 90

Fed.Appx. at 317 (citing Cleavinger, 474 U.S. at 200.).

A court

clerk’s duties with respect to the filing of notices of appeal
and motions for rehearing undoubtedly “involve a judicial act,
or

one

having

an

integral

relationship

with

the

judicial

process, and must be afforded the defense of immunity.”
In

determining

plaintiff

met

whether
the

post-decision

filing

motions

requirements

of

See id.

submitted

state

law,

by
the

defendant court clerks were performing acts having an integral
relationship with the judicial process.
discretion

to

determine

if

filing

The clerk of court has

prerequisites

have

been

satisfied and must have unfettered discretion to review a motion
or other pleadings to make that determination.

In such a case,

the defense of judicial immunity generally applies, regardless
of procedural error, motive or good faith.

Dahl, 744 F.3d at

631 (citing see Whitesel, 222 F.3d at 867; Losee, 485 F.2d at
342; Lundahl, 296 F.3d at 939)).
14

“To hold otherwise would have

a chilling effect on the judicial duties and actions of the
clerk.

Id. (citing see Losee, 485 F.2d at 340–41); see also

Erickson, 884 F.2d at 1111 (clerk’s duties in filing documents
was an integral part of the judicial process, so the clerk’s
delayed filing of the complaint and lies about its whereabouts
were protected by judicial immunity).
Plaintiff claims that defendants acted without authority
and in violation of state rules and laws, but does not show that
they acted outside their jurisdiction.

“[A]n act is not outside

of a (clerk’s) jurisdiction just because it is wrongful, even
unlawful.”

Dahl, 744 F.3d at 630-31.

The Tenth Circuit in Dahl

reasoned:
As the Supreme Court said in Stump, “A judge will not
be deprived of immunity because the action he took was
in error, was done maliciously, or was in excess of
his authority; rather, he will be subject to liability
only when he has acted in the clear absence of all
jurisdiction.”
435 U.S. at 356–57, 98 S.Ct. 1099
(internal quotation marks omitted). Immunity does not
protect only the innocent.
Why grant immunity to
those who have no need of it?
See Snell v. Tunnell,
920 F.2d 673, 687 (10th Cir. 1990)(“Absolute immunity
has its costs because those with valid claims against
dishonest or malicious government officials are denied
relief.”).
Immunity is conferred so that judicial
officers can exercise their judgment (which on
occasion may not be very good) without fear of being
sued in tort.
Id. at 631.

The Tenth Circuit has specifically held that a

state prisoner’s § 1983 claim based on a court clerk’s alleged
breach of duty in failing to file court documents was properly

15

dismissed during screening pursuant to 28 U.S.C. § 1915A because
the clerk was entitled to immunity.
Fed.Appx. 663 (10th Cir. 2004).
to

immunity

from

See Guiden v. Morrow, 92

In sum, defendants are entitled

plaintiff’s

claims

for

damages,

and

these

claims subject to dismissal pursuant to 28 U.S.C. § 1915A.
Failure to State Facts to Support a Federal Constitutional
Claim
Even if plaintiff somehow shows that defendants are not
entitled to the defense of quasi-judicial immunity, the facts
alleged

in

the

complaint

constitutional claim.

fail

to

state

a

plausible

federal

He asserts that defendants violated his

right to freedom of speech under the First Amendment, denied him
due

process

Amendment,

and/or

and

equal

acted

in

protection
an

of

arbitrary

law

and

under

capricious

the

14th

manner.

Plaintiff alleges no facts whatsoever to support his claims of
denial of free speech or equal protection.
of

due

process

explain

what

is

also

process

too

was

conclusory

His claim of denial
in

that

he

does

not

constitutionally-mandated

and

how

defendants deprived him of elements of the requisite process.
Furthermore, plaintiff’s factual allegations, when culled away
from his conclusory statements, do not establish that either
defendant

acted

in

an

arbitrary

or

capricious

manner.

Plaintiff’s claims against defendants are based mainly upon his
allegations that they violated court rules and state statutes.
16

However, as noted, he has neither provided the content of the
rules

and

statutes

he

cites

nor

alleged

facts

showing

that

defendants violated the cited provisions.
Plaintiff’s

statements

that

defendants

“deliberately

delayed” mailing the decision until his time to file a motion
for rehearing had expired and did so in order to “stop him” and
destroy his right of access, may be disregarded as supported by
no facts whatsoever.
to

no

more

criticism

than
of

Here, as in Dahl, these complaints amount

bald

their

challenges

to

decisions.

defendants’
Furthermore,

motives

and

plaintiff’s

allegation that defendants waited to mail a copy of the decision
is directly contradicted by the state court record.

The docket

in plaintiff’s criminal case reflects that the denial Order was
mailed to plaintiff prior to December 26.
the

docket

in

Case

No.

91999

is

The final entry on

dated

two

weeks

after

plaintiff’s motion to recall was denied and provides: “CERT/REG
MAIL RETURNED BY POST OFFICE/Reg Mail Returned-Not at Address”
and “Resent Reg Mail 12/26-Beauclair.”
record

refuting

plaintiff’s

In the face of this

unsupported

allegation

that

defendants delayed mailing the decision, the court falls back
upon the presumption that defendant state officials performed
their lawful duties including that they followed Supreme Court
Rule 7.03 and mailed a copy of the decision to plaintiff the day
it was filed.

The record also suggests other reasons for the
17

delay in plaintiff’s receipt of the KCA decision.
Fed.Appx. at 318.

Coleman, 90

The mail return and resend recorded on the

docket establishes that the initial delay of 14 days resulted
from the decision having first been mailed to an address where
plaintiff

was

not

located.

This

together

with

plaintiff’s

volunteer statement that his “current address” was on his postdecision motions suggest that Mr. Beauclair failed to notify the
KCA of an address change prior to the date the decision was
filed.

In any event, by his own admission, Mr. Beauclair sent

no Petition for Review or motion to the KCA until after the
jurisdictional time limit had expired.
Plaintiff

complains

of

defendants’

alleged

failure

to

file his two “Motion(s) for Rehearing” and “Motion to File out
of Time due to Manifest Injustice,” but does not describe the
filing prerequisites for such motions and show that he complied.
He does not even provide a copy or adequate summary of his
Motion to Recall Mandate, the decision denying his Motion to
Recall Mandate, the motions he submitted after the decision, or
any communication between himself and the court clerks regarding
these filings.
In any event, even if plaintiff had adequately alleged that
defendants violated a particular Kansas Supreme Court Rule or
state statute, a violation of state law is simply not grounds
for relief under 42 U.S.C. § 1983.
18

Claim of Denial of Access
Plaintiff’s constitutional claim of denial of court access
is subject to dismissal for the reasons stated above and the
additional

reason

essential
claim.

element

that
of

he

utterly

actual-injury

fails
to

a

to

establish

non-frivolous

the
legal

Plaintiff alleges that because of the clerk’s refusal to

file his petition for review and motions, his arguments were
never

presented

demonstrates

to

that

the

his

KCA.

However,

arguments

or

his

claims

own

in

Declaration

his

Motion

to

Recall Mandate and his unfiled pleadings were ones that already
had or could have been presented to the KCA and the KSC either
by way of direct or collateral appeal or both.
(Doc. 6) at 10-11.
criminal

case

See Declaration

The procedural history of Beauclair’s state

shows

that

he

had

previously

exhausted

all

available state court remedies on his challenges to his state
conviction and sentence, and eventually submitted claims that
were dismissed in state court as successive.

Thus, plaintiff

fails to show actual injury.
Furthermore, plaintiff’s Motion to Recall Mandate simply
cannot

be

characterized

Consequently,

the

rehearing

higher

or

same

as
is

a

non-frivolous

true

of

of

the

review

his

legal

attempts

denial

of

to

this

claim.
obtain
motion.

Plaintiff does not show that his Motion to Recall Mandate was
the proper procedure

for him

to
19

either

reargue

his

already-

rejected habeas corpus

claims or

raise new

ones.

Moreover,

challenges to Mr. Beauclair’s state conviction or sentence, even
if

properly

presented,

would

successive or time-barred.

surely

be

denied

as

either

As the United States Supreme Court

has plainly stated, “depriving someone of a frivolous claim . .
. deprives him of nothing at all, except perhaps the punishment
of Federal Rule of Civil Procedure 11 sanctions.”

Lewis v.

Casey, 518 U.S. 349, 353 n.3 (1996).
Claims for Relief
The

facts

prospective

alleged

injunctive

by

plaintiff

relief

he

do

not

seeks.

His

support

the

unsuccessful

attempts to file frivolous pleadings in his criminal case are
not

shown

to

warrant

a

broad

prospective

preliminary

and

permanent injunction ordering defendants to follow Rule 7.03 in
the future and mail out court decisions the day of filing.

As

discussed earlier, he has not even shown that defendants failed
in his case to follow Rule 7.03.
Plaintiff seeks “compensatory damages in the amount of the
cost of the action against each defendant.”

To the extent this

is a claim for compensatory damages, it is barred by 42 U.S.C. §
1997e(e)7 for the reason that plaintiff has alleged no physical

7

42 U.S.C. § 1997e(e) in pertinent part provides:
No Federal civil action may be brought by a prisoner confined in
a jail, prison, or other correctional facility, for mental or
20

injury.

Plaintiff’s request for “nominal damages in the maximum

amount” suggests his misunderstanding of nominal damages, which
are generally in the amount of $1.00.
Bennett,

430

F.3d

912,

916

(8th

See e.g., Corpus v.

Cir.

2005)(“One

dollar

recognized as an appropriate value for nominal damages.”).

is
In

any event plaintiff’s allegations do not evince the violation of
a

federal

constitutional

nominal damages.

right

and

thus

state

no

basis

for

Plaintiff seeks punitive damages in the amount

of $50,000.00 against each defendant.

However, he presents no

plausible basis for a claim of punitive damages in any amount
because he alleges no facts whatsoever establishing that either
defendant acted with a sufficiently culpable state of mind.

FILING FEE
The fees for filing a civil rights complaint in federal
court

total

Application
(Doc. 2).

$400.00.
for

Leave

Plaintiff
to

Proceed

initially

without

submitted

Prepayment

of

an
Fees

Upon consideration of that motion, the court found

from federal court records that plaintiff had “on 3 or more
prior occasions, while incarcerated or detained in any facility,
brought

an

action

or

appeal

in

a

court

that

is

frivolous,

malicious, or fails to state a claim upon which relief may be
granted.”

28 U.S.C. § 1915(g).

emotional injury suffered
showing of physical injury.

while

21

As a result, the court held
in

custody

without

a

prior

that Mr. Beauclair was not allowed to bring this action without
prepayment of the full filing fee of $400.00 because he had not
shown in his motion that he “is under imminent danger of serious
physical injury.”

Id.

Instead of paying the filing fee in

full, plaintiff submitted a partial payment from the institution
in the amount of $296.00.

(See Doc. 5 & docket entry dated Mar.

7, 2014 showing a receipt for partial payment in the amount of
$296.00.)

Plaintiff stated in a letter that “Rosella Reece will

mail your office a check for the amount of $104.00.”

(Doc. 5).

However, plaintiff had not been granted leave to make partial
payments, and the $104 payment from a person outside the prison
was

received

letter.

and

returned

prior

to

receipt

of

plaintiff’s

Mr. Beauclair is not relieved of his obligation to pay

the remainder of the filing fee for this action.
assesses

the

remainder

of

the

$350.00

filing

fee

The court
which

is

$54.00, and requires that Mr. Beauclair pay this remainder in
full

through

payments

automatically

deducted

from

his

institutional account pursuant to 28 U.S.C. § 1915(b)(2).

MOTION FOR SERVICE
The court has considered and denies plaintiff’s Motion for
Service of Summons.

Summons shall not issue in this case unless

and until the complaint survives screening.

22

Once the screening

process is successfully completed, the court ordinarily orders
service sua sponte.

ORDERS TO PLAINTIFF
Mr. Beauclair is ordered to show cause why his complaint
should not be dismissed for the reasons stated herein.

He is

warned that his failure to file a timely, adequate response may
result in this action being dismissed without further notice.
Mr.

Beauclair

judgment,

and

no

is

reminded

motion

that

for

relief

THE

COURT

this
from

is

not

judgment

a

final

would

be

appropriate.
IT

IS

THEREFORE

BY

ORDERED

that

plaintiff’s

Motion to Proceed without Prepayment of Fees (Doc. 2) is hereby
reconsidered

and

granted.

Plaintiff

is

hereby

assessed

the

remainder of the $350.00 filing fee which is $54.00, to be paid
through payments automatically deducted from his inmate trust
fund

account

Finance

as

Office

authorized
of

the

by

Facility

28

U.S.C.

where

§

1915(b)(2).

plaintiff

is

The

currently

incarcerated is directed by copy of this Order to collect from
plaintiff’s account and pay to the clerk of the court twenty
percent (20%) of the prior month’s income each time the amount
in

plaintiff’s

account

exceeds

ten

dollars

($10.00)

until

plaintiff’s outstanding filing fee obligation has been paid in
full.

Plaintiff

is

directed
23

to

cooperate

fully

with

his

custodian
fee,

in

authorizing

including

but

disbursements

not

limited

to

to

satisfy

providing

the
any

filing
written

authorization required by the custodian or any future custodian
to disburse funds from his account.
IT IS FURTHER ORDERED that plaintiff is granted thirty (30)
days

in

which

to

show

cause

why

this

action

should

not

be

dismissed for the reasons stated herein including failure to
state a claim.
IT IS FURTHER ORDERED that plaintiff’s Motion for Service
of Summons (Doc. 7) is denied, without prejudice.
The clerk is directed to send a copy of this Order to
plaintiff, to the finance officer at the institution in which
plaintiff

is

currently

confined,

and

to

the

court’s

finance

office.
IT IS SO ORDERED.
Dated this 16th day of January of 2015, at Topeka, Kansas.

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

24