Williams v. Aulepp et al

Filing 60

MEMORANDUM AND ORDER ENTERED: Plaintiff's Motions for Leave to Amend the Amended Complaint 44 & 52 and his Motion for a Stay on All Proceedings Due to Retaliatory Transfer 57 are denied. Defendants' Motion for Extension of Time to F ile Answer 55 is granted, rendering Defendants' Motion for Extension of Time 51 moot. Defendants shall answer or otherwise plead within sixty (60) days of this Order. Within fourteen (14) days of this Order, the Bureau of Prisons is to pro vide the Court with the last known addresses for Defendants Maye and Leonhard. The Clerk's Office shall issue summons to Shannon Phelps at FCI Beaumont Low, 5560 KNAUTH ROAD BEAUMONT, TX 77705, and to Glenna Crews at Bureau of Prisons, North Central Regional Office, 400 STATE AVENUE, SUITE 800, KANSAS CITY, KS 66101. Signed by Magistrate Judge David J. Waxse on 07/11/17. Mailed to pro se party Anthony D. Williams and Bureau of Prisons by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ANTHONY D. WILLIAMS,
Plaintiff,
v.

Case No. 16-3044-EFM-DJW

KRISTINE A. AULEPP, et al.,
Defendants.

MEMORANDUM AND ORDER
The matters before the Court are Plaintiff’s motions for leave to amend the Amended
Complaint (Docs. 44, 52); Plaintiff’s Motion for a Stay on All Proceedings Due to Retaliatory
Transfer (Doc. 57); and Defendants’ Motions for Extension of Time to File Answer (Docs. 51,
55). Plaintiff seeks to amend his Amended Complaint (Doc. 18) to reinstate his claims under the
Federal Tort Claims Act (“FTCA”).1 The Court ordered Plaintiff to show cause as to why his
FTCA claims should not be dismissed for lack of administrative exhaustion.2 The Court
dismissed his FTCA claims because Plaintiff had not shown he had complied with the FTCA’s
administrative requirements.3 Specifically, the Court found Plaintiff’s evidence—five “final
denials” from the Bureau of Prisons—was inadequate to demonstrate administrative exhaustion.
Those documents did not set forth the claims or a description of the claims to which they
pertained. Moreover, Plaintiff did not file suit within six months of four of those denials as
required by 28 U.S.C. § 2401(b). The fifth denial pertained to events at a different federal
1

28 U.S.C. § 2671, et. seq.

2

See Doc. 8.

3

Doc. 25 at 19–21. The Court also noted that Plaintiff did not show good cause in response to the Court’s
previous Order.

facility, and that claim was not properly joined in this case. Plaintiff filed a motion for
reconsideration, which the Court granted in part and denied in part.4 However, his FTCA claims
remain dismissed for the reasons given in his January 17, 2017 Order.
Plaintiff’s motions for leave to amend have two flaws. First, both motions violate D.
Kan. Rule 15.1, which provides that any motion for leave to file an amendment must “attach the
proposed pleading or other document.”5 Neither motion contains a proposed Amended
Complaint. Second, Plaintiff has not attached or pointed to anything new that justifies allowing
these claims to proceed. As the Court has previously pointed out, Plaintiff conflates exhaustion
of administrative remedies under the Prison Litigation Reform Act, et seq., and exhaustion of
administrative remedies under the FTCA. Plaintiff has provided nothing to alleviate the
problems identified by the Court regarding his FTCA claims.6
Because the Court denies Plaintiff leave to amend, the Court grants Defendants’ Motion
for Extension of Time to File Answer (Doc. 55). Defendants’ Motion for Extension of Time
(Doc. 51) is therefore moot. Defendants shall answer or otherwise plead within sixty (60) days
of this Order.
Plaintiff’s Motion for a Stay on All Proceedings Due to Retaliatory Transfer (Doc. 57) is
denied. According to the Bureau of Prisons’ inmate locator website, the transfer has already
occurred. Further, Plaintiff identifies no reason to stay the proceedings. Nor can the Court
identify any reason this case should be stayed until further notice.
Finally, Waiver of Service of Summons as to Defendants Claude Maye, P. Leonhard,
Shannon Phelps, and Glenna Crews returned unexecuted. (Doc. 36) The Bureau of Prisons

4

Doc. 32.

5

D. Kan. Rule 15.1(a)(2)

6

See Docs. 8, 13, 25, and 32.

2

(“BOP”) wrote the Court a letter stating that Defendants Maye and Leonhard were no longer
employed with the BOP, that Shannon Phelps is now employed at the Federal Correctional
Facility in Beaumont, Texas, and that Glenna Crews is now employed at the North Central
Regional Office in Kansas City, Kansas. In discharging its obligations under 28 U.S.C.
§ 1915(d), the Court therefore orders the Federal Bureau of Prisons to provide the Court with the
last known addresses for Defendants Maye and Leonhard. The Court also directs the Clerk’s
Office issue summons to Shannon Phelps at FCI Beaumont Low, 5560 KNAUTH ROAD
BEAUMONT, TX 77705, and to Glenna Crews at Bureau of Prisons, North Central Regional
Office, 400 STATE AVENUE, SUITE 800 KANSAS CITY, KS 66101.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motions for leave
to amend the Amended Complaint (Docs. 44, 52) and his Motion for a Stay on All Proceedings
Due to Retaliatory Transfer (Doc. 57) are denied.
IT IS FURTHER ORDERED that Defendants’ Motion for Extension of Time to File
Answer (Doc. 55) is granted, rendering Defendants’ Motion for Extension of Time (Doc. 51)
moot. Defendants shall answer or otherwise plead within sixty (60) days of this Order.
IT IS FURTHER ORDERED that, within fourteen (14) days of this Order, the Bureau
of Prisons to provide the Court with the last known addresses for Defendants Maye and
Leonhard.
IT IS FURTHER ORDERED that the Clerk’s Office issue summons to Shannon Phelps
at FCI Beaumont Low, 5560 KNAUTH ROAD BEAUMONT, TX 77705, and to Glenna Crews
at Bureau of Prisons, North Central Regional Office, 400 STATE AVENUE, SUITE 800
KANSAS CITY, KS 66101.

3

Dated July 11, 2017, at Kansas City, Kansas.

s/ David J. Waxse
David J. Waxse
U.S. Magistrate Judge

4