Lowery et al v. Kansas, State of et al

Filing 55

MEMORANDUM AND ORDER ENTERED: Plaintiff's third motion to reopen this case (Doc. 54 ) is denied. This case remains closed. Signed by Senior U.S. District Judge Sam A. Crow on 07/19/21. Mailed to pro se party Don McAlister by regular mail. (smnd)

Case 5:21-cv-03107-SAC Document 55 Filed 07/19/21 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LAJUAN S.L. LOWERY, et al.,
Plaintiffs,
v.

CASE NO. 21-3107-SAC

STATE OF KANSAS, el al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiffs bring this pro se civil rights complaint under 42 U.S.C. § 1983. Plaintiffs are
detained at the Leavenworth County Jail in Leavenworth, Kansas (“LCJ”). On May 11, 2021, the
Court entered a Memorandum and Order and Order to Show Cause (Doc. 13) (“MOSC”), granting
Plaintiffs until June 8, 2021, in which to show good cause why this matter should not be dismissed
for the reasons set forth in the MOSC. The Court reviewed the responses to the MOSC and
Plaintiff Lowery’s motion to amend complaint, and dismissed this matter for failure to state a claim
on June 9, 2021. (Docs. 38, 39.) Plaintiffs Lowery and McAlister filed motions to reopen this
case (Docs. 43, 44) which the Court denied on June 29, 2021 (Doc. 48). Plaintiff McAlister filed
a second motion to reopen the case (Doc. 51) which the Court denied on July 7, 2021 (Doc. 53).
This matter is before the Court on Plaintiff McAlister’s third motion to reopen this case (Doc. 54).
The Court entered a Memorandum and Order (Doc. 48) denying the previous motions to
reopen. The Court found that the Plaintiffs failed to meet the exacting standard for relief under
Fed. R. Civ. P. 59(e). Plaintiff McAlister makes allegations against his public defenders relating
to his state criminal case. The Court previously found that Plaintiffs failed to show that the state
court defense attorneys were acting under color of law as required under § 1983; a request for
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Case 5:21-cv-03107-SAC Document 55 Filed 07/19/21 Page 2 of 2

release from imprisonment and a challenge to the validity of any sentence must be brought in a
habeas action; and before Plaintiffs may proceed in a federal civil action for monetary damages
based upon an invalid conviction or sentence, they must show that their conviction or sentence has
been overturned, reversed, or otherwise called into question. See Heck v. Humphrey, 512 U.S. 477
(1994). Plaintiff McAlister continued to make the same arguments in his second motion to reopen,
and continues to make the same arguments in his third motion to reopen. Plaintiff fails to address
the deficiencies set forth in the Court’s MOSC and fails to show good cause why this matter should
not be dismissed for the reasons set forth in the MOSC.
Plaintiff does not meet the exacting standard for relief under Fed. R. Civ. P. 59(e) and the
Court denies the current motion to reopen for the reasons set forth in the Court’s Memorandum
and Orders at Doc. 48 and Doc. 53. Any further motions to reopen this case by Plaintiff McAlister
based on claims against his state criminal defense attorneys will be summarily denied. In sum,
Plaintiff has failed to meet the standard required for this Court to alter or amend its June 9, 2021
Memorandum and Order and Judgment, and that ruling stands.
IT IS THEREFORE ORDERED THAT Plaintiff’s third motion to reopen this case
(Doc. 54) is denied. This case remains closed.
IT IS SO ORDERED.
Dated July 19, 2021, in Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
SENIOR U. S. DISTRICT JUDGE

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