Loggins (ID 63088) et al v. Norwood et al

Filing 34

ORDER ENTERED: Defendants' Motion for Extension of Time 32 is granted. Defendants Joseph Norwood, Shannon Meyer and Dan Schnurr shall answer or otherwise respond to Plaintiff's Complaint by April 3, 2019. Plaintiff's Motion to Chan ge Venue 28 is denied without prejudice. Plaintiff's Motion to Impeach the Judgment of Conviction for the Charge of Aggravated Sexual Battery in Case No. 95CR1859 29 is denied. Plaintiff's Motion to Consolidate 30 is denied. Signed by U.S. Senior District Judge Sam A. Crow on 03/06/19. Mailed to pro se party Kevin D. Loggins, Sr. by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KEVIN D. LOGGINS, SR.,
Plaintiff,
v.

CASE NO. 18-3016-SAC

JOSEPH NORWOOD, et al.,
Defendants.
ORDER
Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. This matter is
before the Court on Plaintiff’s Motion to Change Venue (Doc. 28), Plaintiff’s Motion to Impeach
the Judgment of Conviction for the Charge of Aggravated Sexual Battery in Case No. 95CR1859
(Doc. 29), Plaintiff’s Motion to Consolidate (Doc. 30), and Defendants’ Motion for Extension of
Time (Doc. 32).
On March 4, 2019, Defendants Joseph Norwood, Shannon Meyer and Dan Schnurr filed
their motion for extension of time, seeking a 30-day extension of time to answer or otherwise
respond to Plaintiff’s Complaint.

Defendants have previously received a clerk’s 14-day

extension of time, extending the deadline to March 4, 2019. Defendants state that an extension is
needed due to delays in the receipt of necessary documents for the filing of a response. Plaintiff
has filed an Objection (Doc. 33), arguing that Defendants did not comply with the March 4, 2019
deadline to file their answer. Plaintiff asks the Court to deny the extension of time and to enter a
default judgment.
Rule 6 of the Federal Rules of Civil Procedure provides that “[w]hen an act may or must be
done within a specified time, the court may, for good cause, extend the time: (A) with or without
motion or notice if the court acts, or if a request is made, before the original time or its extension

expires.” Fed. R. Civ. P. 6(b)(1)(A). Defendants filed their motion on March 4, 2019, before the
deadline expired. The Court finds that the extension should be granted for good cause shown, and
a default judgment is not warranted.
Plaintiff has filed a “Motion for Change of Venue” (Doc. 28) asking the Court to transfer
this case to the Wichita division to make transportation of Plaintiff from the prison to court less
burdensome. The Court denies the motion without prejudice as premature. If Plaintiff’s case
survives dispositive motions he may refile his request.
Plaintiff has also filed a “Motion to Impeach the Judgment of Conviction for the Charge of
Aggravated Sexual Battery in Case No. 95CR1859” (Doc. 29). Plaintiff argues that the judgment
in his state criminal case in Sedgwick County District Court is void and a “legal nullity” because it
was rendered without subject matter jurisdiction “and in contradiction to the due process of law
clause of the 14th Amendment of the U.S.C.A.” To the extent Plaintiff seeks release from
imprisonment, such a challenge must be brought in a habeas action.
“[A] § 1983 action is a proper remedy for a state prisoner who is making a constitutional
challenge to the conditions of his prison life, but not to the fact or length of his custody.” Preiser
v. Rodriguez, 411 U.S. 475, 499 (1973) (emphasis added). When the legality of a confinement is
challenged so that the remedy would be release or a speedier release, the case must be filed as a
habeas corpus proceeding rather than under 42 U.S.C. § 1983, and the plaintiff must comply with
the exhaustion of state court remedies requirement. Heck v. Humphrey, 512 U.S. 477, 482
(1994); see also Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000) (exhaustion of state court
remedies is required by prisoner seeking habeas corpus relief). “Before a federal court may grant
habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. In other
words, the state prisoner must give the state courts an opportunity to act on his claims before he

presents those claims to a federal court in a habeas petition.” O’Sullivan v. Boerckel, 526 U.S.
838, 842 (1999); see Woodford v. Ngo, 548 U.S. 81, 92 (2006); Rose v. Lundy, 455 U.S. 509, 518–
19 (1982). Therefore, any claim seeking release from imprisonment is not cognizable in a § 1983
action.
The Court notes that Plaintiff has previously attempted to bring similar claims regarding
his state court Case No. 95cr1859 in a habeas petition before this Court. In Loggins v. Kansas
Dep’t of Corr., the Court found that the action was an attempt by Plaintiff to file a successive
federal habeas corpus petition. Case No. 11-3106-SAC, Doc. 3 (D. Kan. June 22, 2011) (citing
Gray v. Mullin, 171 F. App’x 741, 743, 745 n. 1 (10th Cir. 2006), cert. denied 549 U.S. 905
(2006)). The Court took judicial notice of Loggins v. Hannigan, Case No. 99-3102-DES, a prior
§ 2254 habeas corpus petition filed by Plaintiff in 1999, challenging his convictions in Case
No. 95cr1859. The Court noted:
That first federal petition was denied on the merits on September 11,
2001. In addition, petitioner filed a Motion for Reconsideration of
the denial of his first habeas petition, and that motion was denied on
October 5, 2001. He appealed to the Tenth Circuit Court of Appeals,
which denied a certificate of appealability and dismissed the appeal.
In his motion for reconsideration, Mr. Loggins sought a stay while
he exhausted additional arguments in state court. However, the
district court found, and the Tenth Circuit cited its finding, that “any
issues petitioner seeks to exhaust are already foreclosed as untimely
under 28 U.S.C. § 2244(d)(1), and petitioner cannot possibly show
that he exercised due diligence in raising his claims.” The court
finds that the instant application is a second and successive petition.
Woodward v. Williams, 263 F.3d 1135, 1142 (10th Cir. 2001), cert.
denied, 535 U.S. 973 (2002).
Loggins v. Kansas Dep’t of Corr., Case No. 11-3106-SAC, Doc. 3, at 2–3 (D. Kan. June 22, 2011).
The Court also noted that Plaintiff must obtain authorization from the appropriate court of appeals
before filing a second or successive petition for writ of habeas corpus. Id. at 3; see also Loggins v.
Kansas Supreme Court, Case No. 10-3060-RDR, Doc. 3, at 2 (D. Kan. April 14, 2010) (finding

that plaintiff’s challenge to his 1996 state court convictions of Aggravated Kidnaping and
Aggravated Sexual Battery are not properly brought in a petition for writ of mandamus and
petition is an improper attempt to file a second and successive habeas petition). Plaintiff’s request
to set aside his criminal conviction is not cognizable in this § 1983 action and Plaintiff’s motion is
denied.
Plaintiff filed a Motion to Consolidate (Doc. 30), asking the Court to consolidate this case
with Case No. 18-3254. The Court previously denied Plaintiff’s motion to consolidate at Doc. 16.
For the same reasons set forth in the order denying his previous motion to consolidate, the Court
denies his current request. See Order at Doc. 19.
IT IS THEREFORE ORDERED BY THE COURT that Defendants’ Motion for
Extension of Time (Doc. 32) is granted.
IT IS FURTHER ORDERED that Defendants Joseph Norwood, Shannon Meyer and
Dan Schnurr shall answer or otherwise respond to Plaintiff’s Complaint by April 3, 2019.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Change Venue (Doc. 28) is
denied without prejudice.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Impeach the Judgment of
Conviction for the Charge of Aggravated Sexual Battery in Case No. 95CR1859 (Doc. 29) is
denied.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Consolidate (Doc. 30) is denied.
IT IS SO ORDERED.
Dated in Topeka, Kansas, on this 6th day of March, 2019.
s/ Sam A. Crow
SAM A. CROW
U. S. Senior District Judge