McNeese v. Anderson et al
Filing
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MEMORANDUM AND ORDER ENTERED: This matter is dismissed as frivolous or malicious. Signed by District Judge John W. Lungstrum on 01/29/25. Mailed to pro se party James W. McNeese by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JAMES W. McNEESE,
Plaintiff,
v.
CASE NO. 24-3227-JWL
(FNU) ANDERSON, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff filed this pro se civil rights case under 42 U.S.C. § 1983. Plaintiff is in custody
at the Sedgwick County Jail in Wichita, Kansas (“SCJ”). The Court granted Plaintiff leave to
proceed in forma pauperis. On December 23, 2024, the Court entered a Memorandum and Order
to Show Cause (Doc. 4) (“MOSC”) ordering Plaintiff to show good cause why his Complaint
should not be dismissed for the reasons set forth in the MOSC. This matter is before the Court
on Plaintiff’s responses (Docs. 5, 8).
Plaintiff alleges that on January 5, 2024, Officer Anderson came into Plaintiff’s cell and
placed something in Plaintiff’s body without Plaintiff’s consent, leaving blood running down
Plaintiff’s side. (Doc. 1, at 2.) Plaintiff states that he failed to exhaust his remedies on his
grievance. Id. at 5. Plaintiff names as defendants: (fnu) Anderson, SCJ Officer; and (fnu) (lnu)
Med Passer at the SCJ. For relief, Plaintiff seeks to see an outside private doctor and punitive
damages in the amount of $100,000. Id.
The Court found in the MOSC that this matter is subject to dismissal as duplicative of
Case No. 24-3153. Plaintiff raises the same claims in this case that he raised in Case No. 243153. See McNeese v. Anderson, Case No. 24-3153-JWL (D. Kan.). Case No. 24-3153 was
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dismissed for failure to state a claim on November 4, 2024. Id. at Docs. 9, 10. Plaintiff filed a
Notice of Appeal (Doc. 15) which is currently pending in the Tenth Circuit Court of Appeals.
The Court ordered Plaintiff to show good cause why this action should not be dismissed
as duplicative.
The Court also noted that Plaintiff indicated that he failed to exhaust his
administrative remedies as required by 42 U.S.C. § 1997e(a).
In his response, Plaintiff reargues his claims and states that he was not aware of how to
follow the proper procedure to exhaust his administrative remedies. (Doc. 5.) He also indicates
that he decided to go “pro se” in his state criminal case. Id.; see also Doc. 7.
Plaintiff also filed a document in this case titled “Complaint January,” asking the Court to
excuse his untimely appeal in Case No. 24-3153. (Doc. 8.) Plaintiff also asks the Court to
contact the SCJ to advise them that Plaintiff has a right to exhaust his administrative remedies.
Id. Plaintiff also asks this Court to appear at his next state court criminal proceeding. Plaintiff
claims that he is being harassed, denied phone privileges, and is being moved around the jail.
Plaintiff claims that he filed a grievance on January 12, 2025.
To the extent Plaintiff seeks relief in Doc. 8, it is denied. Any request regarding his
appeal in Case No. 24-3153 must be filed in that case. This Court does not contact facilities
regarding exhaustion and does not attend state court criminal proceedings. Lastly, if Plaintiff
believes he has a claim for retaliation or harassment that occurred following the filing of this
case, he should bring those claims in a properly-filed complaint following the exhaustion of his
administrative remedies for those claims.
Plaintiff has failed to show good cause why his Complaint should not be dismissed for
the reasons set forth in the MOSC. Therefore, this matter is dismissed as duplicative. The
general policy against duplicative cases exists because:
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When a pro se litigant files complaints that are repetitive, duplicative of other
filings, without merit, or frivolous, he abuses the district court process. See
Werner v. Utah, 32 F.3d 1446, 1447, 1449 (10th Cir. 1994). “[R]epetitious
litigation of virtually identical causes of action may be dismissed under [28
U.S.C.] § 1915 as frivolous or malicious.” McWilliams v. Colorado, 121 F.3d
573, 574 (10th Cir. 1997) (internal quotation marks omitted) (first alteration in
original). “The unnecessary burden placed upon the judicial process in
adjudicating these frivolous and malicious lawsuits is obvious.” Van Sickle v.
Holloway, 791 F.2d 1431, 1437 (10th Cir. 1986). “[T]here is no constitutional
right of access to the courts to prosecute an action that is frivolous or malicious . .
. . No one, rich or poor, is entitled to abuse the judicial process.” Tripati v.
Beaman, 878 F.2d 351, 353 (10th Cir. 1989) (per curiam).
Childs v. Miller, 713 F.3d 1262, 1265 (10th Cir. 2013).
IT IS THEREFORE ORDERED BY THE COURT that this matter is dismissed as
frivolous or malicious.
IT IS SO ORDERED.
Dated January 29, 2025, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE
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