Jenkins vs Seward County

Filing 31

MEMORANDUM AND ORDER: 20 Motion for Order to Dismiss Case, 22 Motion for Rehearing-Farm, 23 Motion for Rehearing-Residence, 24 Motion for Rehearing-Michael Shelton, 25 Motion for Rehearing-Antah, 26 Motion for Rehearing-Robert Jenkins, 27 Motion for Rehearing-Wayne Lewis & 28 Motion for Order are treated as 60(b) motions and denied. Signed by U.S. District Senior Judge Sam A. Crow on 7/10/15. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ANTHONY RAY JENKINS,
Plaintiff
vs.

Case No. 15-4860-SAC

SEWARD COUNTY TREASURER,
BILL MCBRIDE sheriff, GREG
SWANSON, ODESSA LEWIS,
MARTIN LEWIS, SERRY LEWIS,
and STATE OF KANSAS,
Defendants.
MEMORANDUM AND ORDER
The pro se plaintiff filed a notice of appeal on May 29, 2015, (Dk.
15), after the court dismissed this case without prejudice because the
plaintiff had failed to respond to the show cause order. Judgment was
entered on May 18, 2015. (Dk. 13). On the same day as his notice of appeal,
the plaintiff filed motions (Dks. 14 and 17) which were treated as Rule 59
motions and denied. (Dk. 19). The plaintiff’s premature notice of appeal
ripened once the order was filed denying the Rule 59 motions. See Fed. R.
App. P. 4(a)(2); Coll v. First American Title Ins. Co., 642 F.3d 876, 884-85
(10th Cir. 2011).
The plaintiff continued to file motions, so the district court
entered another order on June 16, 2015, explaining that it lacked jurisdiction
to address these matters while the case was pending on appeal. (Dk. 29).

The plaintiff’s motions included the following: Motion for Order to Dismiss
Case, (Dk. 20); Motion for Rehearing-Farm (Dk. 22); Motion for RehearingResidence (Dk. 23), Motion for Rehearing-Michael Shelton (Dk. 24), Motion
for Rehearing-Antah (Dk. 25), Motion for Rehearing-Robert Jenkins (Dk. 26),
Motion for Rehearing-Wayne Lewis (Dk. 27) and Motion for Order (Dk. 28).
The court also commented in that order:
All of these motions are nothing more than premature summary
demands for the court to grant him immediate affirmative relief.
Several motions summarily demand that the court order the
defendants to return his land and residence to him or replace it, to pay
his agricultural loan, and to replace his vehicles. The other motions
make random requests for court orders that would return his son to
him and that would release from custody the persons of Antah S.
Jenkins, Robert T. Jenkins and Wayne T. Lewis. None of these motions
address the grounds and justification already given for this action’s
dismissal. In his latest motion, Mr. Jenkins adds that he would like the
district court to exercise jurisdiction over his requests for immediate
relief and to disregard his notice of appeal. (Dk. 28).
(Dk. 29, pp. 2-3). The court also explained that the plaintiff’s latest motions
were procedurally inappropriate and so cautioned:
The court hopes it is plain to the plaintiff that for him now to file
in this case these additional summary motions for immediate relief
would be regarded by the court as frivolous and a waste of this court’s
staff and limited resources. It is the court’s responsibility to guard
against abusive practices and to prevent the unreasonable loss of
judicial resources. The plaintiff is warned that if he should persist with
this motion practice that the court will consider imposing appropriate
filing restrictions. The plaintiff has “no constitutional right of access to
the courts to prosecute an action that is frivolous or malicious.”
Landrith v. Schmidt, 732 F.3d 1171, 1174 (10th Cir. 2013) (per
curiam) (quoting Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir.
1989) (per curiam)) (internal quotation marks omitted), cert. denied,
134 S. Ct. 1037 (2014).
(Dk. 29, pp. 4-5).
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On June 25, 2015, the Tenth Circuit granted the motion of Mr.
Jenkins to dismiss his appeal and denied his request to transfer records to
the U.S. Department of Justice. (Dk. 30). As this case is no longer pending
on appeal, the above listed post-judgment motions are now pending before
the district court. The court must construe these pleadings liberally due to
the plaintiff’s pro se status. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
Thus, if the pleadings can be reasonably read as stating a valid ground for
prevailing in the particular procedural context, the court will do so and
overlook the lack of cited legal authorities, the confusion of legal theories,
poor writing, and unfamiliarity with pleading requirements. Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991). The district court, however, may not
become an advocate for the pro se litigant. Id.
To be entitled to the discretionary post-judgment relief available
under Rule 60(b), a movant must satisfy one of the exceptional
circumstances listed as six grounds for relief from judgment under Rule
60(b). Van Skiver v. United States, 952 F.3d 1241, 1243-44 (10th Cir.
1991). “A Rule 60(b) motion is not intended to be a substitute for a direct
appeal.” Servants of Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir.
2000) (citation omitted).
None of the plaintiff’s motions recite any of the exceptional
circumstances warranting relief under Rule 60(b). Nor does a reasonable
reading of the plaintiff’s filings yield any grounds for Rule 60(b) relief. The
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court dismissed this case without prejudice for the plaintiff’s failure to meet
the requirements for pleading an action and for failure to comply with the
court’s orders enforcing these requirements. The court cannot read any of
the plaintiff’s pleadings as arguing the court made a substantive mistake of
law or fact in that order and judgment. The plaintiff’s pleadings offer no
reasons for revisiting its narrow ruling here. Final judgment has been
entered in this case, the appeal has been dismissed, and none of the
plaintiff’s filings assert any proper ground for relief under Rule 60(b).
IT IS THEREFORE ORDERED that the plaintiff’s Motion for Order
to Dismiss Case, (Dk. 20); Motion for Rehearing-Farm (Dk. 22); Motion for
Rehearing-Residence (Dk. 23), Motion for Rehearing-Michael Shelton (Dk.
24), Motion for Rehearing-Antah (Dk. 25), Motion for Rehearing-Robert
Jenkins (Dk. 26), Motion for Rehearing-Wayne Lewis (Dk. 27) and Motion for
Order (Dk. 28) are treated as Rule 60(b) motions and denied.
Dated this 10th day of July, 2015, Topeka, Kansas.

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

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