Blake (ID 96323) v. JPay et al

Filing 19

MEMORANDUM AND ORDER ENTERED: Plaintiff's Motion to Appoint Counsel 12 and Motion to Stop Forma Pauperis Fees 18 are denied. Plaintiff's Motion to Alter or Amend Judgment 13 is denied. Signed by U.S. Senior District Judge Sam A. Crow on 09/04/19. Mailed to pro se party Shaidon Blake by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SHAIDON BLAKE,
Plaintiff,
v.

CASE NO. 18-3146-SAC

JPAY, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff proceeds pro se and in forma pauperis in this prisoner civil rights action under
42 U.S.C. § 1983. At the time of filing, Plaintiff was in custody at the El Dorado Correctional
Facility in El Dorado, Kansas.

Plaintiff alleges that Defendants censored and banned his

authored books without good cause and in violation of his First Amendment rights. The Court
entered a Memorandum and Order and Order to Show Cause (Doc. 6) (“MOSC”), granting
Plaintiff the opportunity to either show good cause why his Complaint should not be dismissed
or to file a proper amended complaint. Plaintiff filed an Amended Complaint (Doc. 7). On
August 16, 2019, the Court entered a Memorandum and Order (Doc. 9) finding that the
Amended Complaint failed to cure the deficiencies discussed in the MOSC and dismissing this
matter for failure to state a claim. This matter is before the Court on Plaintiff’s Motion to Alter
or Amend (Doc. 13).
The Court found in the MOSC that the governmental objectives underlying K.A.R. § 4412-313 have been found to be legitimate and neutral and the regulation has been found to
rationally relate to those objectives. See Sperry v. Werholtz, 413 F. App’x 31, 40 (10th Cir.

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2011) (unpublished). The Court also found that Plaintiff fails to even identify or describe what
was contained in the banned materials, stating that:
Plaintiff alleges that his authored book or book cover were
withheld as sexually explicit and that the book contained no
“sexually explicit gestures, no penetration or anything considered
vulgar in nature.” However, the regulation prohibits more than
these categories, and Plaintiff fails to even identify or describe
what was contained on the book cover. Plaintiff does not state a
federal constitutional violation by alleging that his materials were
withheld as sexually explicit without more. See Meredith v.
Roberts, No. 12-3027-SAC, 2012 WL 1380330, at *5 (D. Kan.
April 20, 2012). As the Tenth Circuit has noted:
[S]uch restrictions are sufficiently commonplace in
the prison setting, see, e.g., Thornburgh, 490 U.S. at
415–19, 109 S. Ct. 1874 (upholding restrictions on
prisoners’ incoming mail); Smith, 899 F.2d at 944
(complaint about undelivered catalogues did not
raise a constitutional issue), that his claim is not
plausible absent allegations showing that the
restrictions were imposed in violation of prison
regulations or that the regulations invoked were
unconstitutional in the circumstances.
Id. (quoting Gee v. Pacheco, 627 F.3d 1178, 1190 (10th Cir.
2010)).
(Doc. 6, at 6.)
In dismissing this matter, the Court found that: Plaintiff’s Amended Complaint fails to
address the deficiencies discussed in the MOSC; Plaintiff continues to allege that the censored
items were not sexually explicit without any factual support or allegations regarding the content
of the banned items; and Plaintiff fails to state a claim for a violation of his First Amendment
rights.
Plaintiff argues in his motion to alter or amend judgment that Defendants censored and
banned his authored books without good cause and in violation of his First Amendment rights.
Plaintiff alleges that K.A.R. § 44-12-313 has not been violated and the Court cannot conclude

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otherwise “without a review of exhibits which has not yet occurred.” (Doc. 13, at 1–2.) Plaintiff
alleges that the rules were made to regulate and facilitate the rehabilitation of sex offenders, and
because Plaintiff is not a sex offender he should not be subjected to “cruel and unusual atypical
conditions due to the facilities need to regulate sex offenders.” Id. at 2. Plaintiff makes the bald
allegation that his books are not a security risk and do not promote sexual harassment. Id.
Local Rule 7.3 provides that “[p]arties seeking reconsideration of dispositive orders or
judgments must file a motion pursuant to Fed. R. Civ. P. 59(e) or 60.” D. Kan. Rule 7.3(a).
Because Plaintiff’s motion was filed within 28 days after the entry of the order, the Court will
treat it as a motion under Rule 59. See Fed. R. Civ. P. 59(e) (“A motion to alter or amend a
judgment must be filed no later than 28 days after the entry of the judgment.”).
A motion to alter or amend judgment pursuant to Rule 59(e) may be granted only if the
moving party can establish: (1) an intervening change in the controlling law; (2) the availability
of new evidence that could not have been obtained previously through the exercise of due
diligence; or (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 under Rule 59(e) is not to be
used to rehash arguments that have been addressed or to present supporting facts that could have
been presented in earlier filings.

Id.

Reconsideration of a judgment after its entry is an

extraordinary remedy that should be used sparingly. See Templet v. HydroChem, Inc., 367 F.3d
473, 479 (5th Cir. 2004); Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1242 (10th Cir.
2006); Zucker v. City of Farmington Hills, 643 F. App’x 555, 562 (6th Cir. 2016) (relief under
R. 59(e) is rare).
Plaintiff has failed to show that he is entitled to relief from the Court’s judgment
dismissing this matter. Plaintiff alleges that the Court needs to consider exhibits which allegedly

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“has not yet occurred.” However, there are no exhibits attached to Plaintiff’s Complaint or
Amended Complaint or Supplement. (Docs. 1, 7, 8.) Furthermore, Plaintiff continues to make
bald allegations that his authored materials were censored without good cause, without any
factual support. Plaintiff’s allegations are completely conclusory. See Ysais v. Richardson, 603
F.3d 1175, 1180 (10th Cir. 2010) (sating that district court did not abuse its discretion in denying
a motion under Rule 59(e) based only on conclusory statements).
Plaintiff does not meet the exacting standard for relief under Fed. R. Civ. P. 59(e). In
sum, Plaintiff has failed to meet the standard required for this Court to alter or amend its
August 16, 2019 Order and Judgment, and that ruling stands.
Plaintiff filed a Motion to Appoint Counsel (Doc. 12), arguing that he is indigent and is in
segregation with limited access to legal materials. The Court has considered Plaintiff’s motion
for appointment of counsel. There is no constitutional right to appointment of counsel in a civil
case. Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989); Carper v. DeLand, 54 F.3d 613,
616 (10th Cir. 1995). The decision whether to appoint counsel in a civil matter lies in the
discretion of the district court. Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991). “The
burden is on the applicant to convince the court that there is sufficient merit to his claim to
warrant the appointment of counsel.” Steffey v. Orman, 461 F.3d 1218, 1223 (10th Cir. 2006)
(quoting Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004)). It is not
enough “that having counsel appointed would have assisted [the prisoner] in presenting his
strongest possible case, [as] the same could be said in any case.” Steffey, 461 F.3d at 1223
(quoting Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)).
In deciding whether to appoint counsel, courts must evaluate “the merits of a prisoner’s
claims, the nature and complexity of the factual and legal issues, and the prisoner’s ability to

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investigate the facts and present his claims.” Hill, 393 F.3d at 1115 (citing Rucks, 57 F.3d at
979). The Court concludes in this case that (1) Plaintiff has not asserted a colorable claim
against a named defendant; (2) the issues are not complex; and (3) Plaintiff appears capable of
adequately presenting facts and arguments. The Court denies the motion.
Plaintiff has also filed a Motion to Stop Forma Pauperis Fees (Doc. 18), asking the Court
to stop the fee payments in this case and one of Plaintiff’s prior cases filed in this Court.
Plaintiff asks the Court to relieve him of court costs for cases that are no longer active.
However, as noted in this Court’s order granting Plaintiff leave to proceed in forma pauperis,
“Plaintiff remains obligated to pay the remainder of the $350.00 filing fee. The agency having
custody of plaintiff shall forward payments from plaintiff’s account in installments calculated
under 28 U.S.C. § 1915(b)(2).” (Doc. 3.)
Congress enacted the federal in forma pauperis statute, 28 U.S.C. § 1915, to ensure
access to the courts by persons financially unable to pay court fees. See Coleman v. Tollefson,
135 S. Ct. 1759, 1761 (2015). Section 1915(a)(1) permits the federal courts to “authorize the
commencement . . . of any suit . . . without prepayment of fees” if a person submits an affidavit
that shows he “is unable to pay such fees.”
In the Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat. 321 (1996),
Congress addressed the “sharp rise in prisoner litigation in the federal courts.” Woodford v. Ngo,
548 U.S. 81, 84 (2006). In part, the PLRA modified 28 U.S.C. § 1915 to require prisoners
proceeding without the prepayment of fees to pay their filing fees in installments calculated upon
the amount in their institutional financial accounts. 28 U.S.C. § 1915(b).
While this statute allows those prisoners who demonstrate that their financial resources
are insufficient to prepay their filing fees to pay them in installments, it does not permit them to

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avoid the payment of statutory filing fees entirely. Under 28 U.S.C. § 1915(b)(1), a prisoner
bringing a civil action in forma pauperis “shall be required to pay the full amount of a filing
fee.” Plaintiff has provided no factual or legal basis for this Court to relieve him of this statutory
obligation.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion to Appoint
Counsel (Doc. 12) and Motion to Stop Forma Pauperis Fees (Doc. 18) are denied.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Alter or Amend Judgment
(Doc. 13) is denied.
IT IS SO ORDERED.
Dated in Topeka, Kansas, on this 4th day of September, 2019.

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

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