Eikenberry (ID 89846) v. Seward County, Kansas et al

Filing 23

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion to reconsider 15 is denied. Signed by U.S. Senior District Judge Sam A. Crow on 01/30/18. Mailed to pro se party Michael Wayne Eikenberry by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MICHAEL WAYNE EIKENBERRY,
Plaintiff,
v.

CASE NO.17-3150-SAC

SEWARD COUNTY, et al.,
Defendants.

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion to Reconsider (Doc. #15). Plaintiff
asks the Court to reconsider its order of December 19, 2017, dismissing Plaintiff’s complaint for
failure to state a claim on which relief may be granted.
A litigant who seeks reconsideration by the district court of an adverse judgment may
“file either a motion to alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e) or a motion
seeking relief from the judgment pursuant to Fed.R.Civ.P. 60(b).” Van Skiver v. United States,
952 F.2d 1241, 1243 (10th” Cir. 1991). A motion to alter or amend the judgment must be filed
within twenty-eight days after the judgment is entered. See Fed.R.Civ.P. 59(e). The Court will
consider Mr. Eikenberry's motion to reconsider pursuant to Rule 59(e) because the motion was
filed within twenty-eight days after the Judgment was entered in this action. See Van Skiver, 952
F.2d at 1243 (stating that motion to reconsider filed within ten-day limit for filing a Rule 59(e)
motion under prior version of that rule should be construed as a Rule 59(e) motion).

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A Rule 59(e) motion may be granted where there is “(1) an intervening change in the
controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error
or prevent manifest injustice.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
2000). “[A] motion for reconsideration is appropriate where the court has misapprehended the
facts, a party’s position, or the controlling law.” Id. A Rule 59(e) motion should not “revisit
issues already addressed or advance arguments that could have been raised in prior briefing.” Id.
(citing Van Skiver, 952 F.2d at 1243). Relief under Rule 59(e) is “extraordinary and may be
granted only in exceptional circumstances.” Allender v. Raytheon Aircraft Co., 439 F.3d 1236,
1242 (10th Cir. 2006).
In this motion, Mr. Eikenberry does not allege that there has been an intervening change
in the controlling law or that there is newly discovered evidence. His arguments seem to attempt
to fall under the clear error or manifest injustice grounds. He first argues that his complaint
should not have been dismissed because it was not “beyond a doubt that [he] could prove no set
of facts” stating a claim. Doc #15 at 1. While citing no legal authority, Mr. Eikenberry is
alluding to the standard set forth by the U.S. Supreme Court in Conley v. Gibson: “[A] complaint
should not be dismissed for failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Conley
v. Gibson, 355 U.S. 41, 45-46 (1957). However, this is no longer the standard by which the
Court must evaluate claims. The Supreme Court has found that Conley’s “no set of facts”
language “has earned its retirement.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 562-63
(2007). The Twombly court explained that a plaintiff must plead “enough facts to state a claim to
relief that is plausible on its face,” nudging the claim “across the line from conceivable to
plausible.” Twombly, 550 U.S. at 570.

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Aside from citing the incorrect standard, the problem with Mr. Eikenberry’s argument is
that the Court did not even reach the plausibility determination in dismissing his complaint.
Rather, Mr. Eikenberry’s claims, no matter how plausible (or implausible), are barred because
they are not timely. As the Court explained in its order to show cause (Doc. #10) and order
dismissing Mr. Eikenberry’s complaint (Doc. #12), each of his claims are either barred by the
statute of limitations or are premature under the principles of Heck v. Humphrey.
Mr. Eikenberry next argues that the complaint of a plaintiff proceeding in forma pauperis
cannot be dismissed prior to service of process on the defendants. He cites no support for this
assertion, and the Court knows of no such requirement. He then argues the order to show cause
does not mention any “issues with claims stated.” This is also incorrect. The order to show
cause went through each of Plaintiff’s ten counts, explaining why each one failed to state a
claim.
Plaintiff next complains the Court did not address K.S.A. 60-513(b) and thus
misconstrued the law. K.S.A. 60-513 is titled “Actions limited to two years.” Paragraph (a) lists
the actions subject to a two year statute of limitations under Kansas law. Paragraph (b) discusses
accrual of the cause of action. As the Court stated in its order to show cause, “[w]hile state law
governs the length of the limitations period and tolling issues, the accrual date of a § 1983 cause
of action is a question of federal law.” Doc. #10 at 10. Because K.S.A. 60-513(b) is a state law
addressing the accrual of state causes of action, it is not applicable to Mr. Eikenberry’s
complaint.
Plaintiff also argues that his case was dismissed “prematurely” and “[t]he legal
sufficiency entitles this Court to observe ‘Manifest Injustice.’” He offers no further explanation

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or support. The Court can discern no manifest injustice requiring the alteration of its order of
dismissal.
Mr. Eikenberry concludes by arguing that Heck v. Humphrey does not apply to his
claims. This is an attempt to revisit issues already addressed by the Court in its order to show
cause and in its order dismissing Plaintiff’s complaint. It is not an appropriate basis for Plaintiff’s
motion. Servants of the Paraclete, 204 F.3d at 1012.
Because the Court finds no merit to Plaintiff's arguments and finds no modification is
required to prevent manifest injustice, the Court denies Plaintiff's motion to reconsider.

IT IS THEREFORE ORDERED that Plaintiff’s motion to reconsider (Doc. #15) is
denied.
IT IS SO ORDERED.
DATED: This 30th day of January, 2018, at Topeka, Kansas.

s/_Sam A. Crow_____
SAM A. CROW
U.S. Senior District Judge

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