Goings v. Pittsburg, Kansas, City of et al

Filing 42

MEMORANDUM AND ORDER overruling 36 Motion to Vacate; overruling 37 Motion to Amend Complaint. Signed by Chief Judge Kathryn H. Vratil on 2/24/2012.Mailed to pro se party Plaintiff by regular mail. (nf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOSEPH GOINGS,

)
)
Plaintiff,
)
)
v.
)
)
CITY OF PITTSBURG, KANSAS;
)
PITTSBURG POLICE DEPARTMENT;
)
CHRISTOPHER MOORE;
)
SCOTT SULLIVAN and JEFF WOODS;
)
)
Defendants.
)
__________________________________________)

CIVIL ACTION
No. 10-1401-KHV

MEMORANDUM AND ORDER
On May 25, 2011 the Court entered an Order dismissing this case without prejudice at
plaintiff’s request. See Doc. #34.1 On June 13, 2011 plaintiff filed a substantially similar
lawsuit against most of the same defendants. See D. Kan. Case No. 11-4056-SAC.2

On

1

Under 42 U.S.C. § 1983, plaintiff brought claims of excessive force (Count I)
against Sullivan and Moore; violation of the right to remain silent (Count II) and false arrest and
imprisonment (Count III) against Moore; violation of the confrontation clause of the Sixth
Amendment (Count IV) against Moore, Sullivan and Woods, and municipal and department
liability for failure to properly train, supervise and discipline (Count V) against the City of
Pittsburg and the Pittsburg Police Department. See Doc. #1. Plaintiff’s claims stemmed from
his arrest and prosecution for DUI after a motor vehicle accident on November 29, 2008.
2

In the second case, plaintiff brought claims under 42 U.S.C. § 1983 for violation
of the right to remain silent (Count I) and wrongful arrest (Count II) against Moore; violation of
the confrontation clause of the Sixth Amendment (Count III) against Moore, Sullivan and
Woods; violation of Fourteenth Amendment due process (Count IV) against all defendants;
supervisor liability (Count V) against Woods, and municipal liability (Count VI) against the City
of Pittsburg. See Doc. #1, D. Kan. Case No. 11-4056-SAC. These claims involved the same
arrest and prosecution as this case, though plaintiff did not bring claims against the Pittsburg
Police Department or official capacity claims against Moore, Sullivan and Woods – claims
which the defendants in this case sought to dismiss before plaintiff filed his voluntary dismissal.
1

September 14, 2011, United States District Judge Sam A. Crow entered an order dismissing that
case with prejudice under Rule 12(b)(6), Fed. R. Civ. P., and ordering plaintiff to reimburse
defendants’ costs. See Doc. #16 in D. Kan. Case No. 11-4056-SAC. Plaintiff then turned his
attention back to this case and on October 5, 2011 filed Plaintiff’s Motion To Vacate Order Of
Dismissal And To Reopen Case (Doc #36) and Plaintiff’s Motion To Amend Complaint
(Doc. #37), which are now before the Court.
Purportedly under D. Kan Rule 72.1.1(i)(17) and K.S.A. § 60-518, plaintiff asks the court
to vacate its prior order of dismissal and reopen his case.3 He argues that “the factual or legal
issues have yet to be properly presented in this court,” that he filed the voluntary dismissal
before resting his case and that he seeks to reopen the case to “prevent injustice.” He notes that
he is within the six-month time allowed by “K.S.A.” to re-file his action after notice of a
voluntary dismissal. Plaintiff also seeks leave to amend his complaint (assuming the Court
grants his motion to reopen the case) to (1) add a claim for violation of Fourteenth Amendment
due process against defendants Moore and Sullivan, (2) revise his claim of municipal liability
against the City of Pittsburg and (3) remove all other claims and defendants. The proposed
amendments attempt to state the same claims, with some factual embellishments, that plaintiff
presented in Case No. 11-4056-SAC.
Defendants oppose plaintiff’s motions.

They correctly note that D. Kan. Rule

72.1.1(i)(17) does not provide an appropriate vehicle for the relief which plaintiff seeks. Rather,

3

D. Kan. Rule 72.1.1 deals with the duties and authority of magistrate judges.
Section (i)(17) states that pursuant to 28 U.S.C. § 636(b)(3), magistrate judges are to “perform
any additional duty that is not inconsistent with the Constitution and laws of the United States.”

2

Rule 60(b), Fed. R. Civ. P., controls plaintiff’s motion.4

Rule 60(b) enumerates six

circumstances in which the Court can relieve plaintiff of the final order and judgment of
dismissal: (1) inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that
with reasonable diligence could not have been discovered in time to move for a new trial under
Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation or
misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied,
released or discharged, it is based on an earlier judgment that has been reversed or vacated, or
applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. Only
the sixth prong, which is sometimes referred to as a “catch-all provision,” Davis v. Kansas Dep’t
of Corrs., 507 F.3d 1246, 1248 (10th Cir. 2007), arguably encompasses plaintiff’s stated grounds
for reopening this case.
Relief under Rule 60(b) is “extraordinary and may only be granted in exceptional
circumstances.” Id. (quotations omitted). And while Rule 60(b)(6) embraces the broad equitable
powers of district courts, a court may grant a Rule 60(b)(6) motion only in extraordinary
circumstances and only when necessary to accomplish justice. Cashner v. Freedom Stores Inc.,
98 F.3d 572, 576 (10th Cir. 1996). Relief under Rule 60(b)(6) “is even more difficult to attain”
than under other Rule 60(b) provisions and “is appropriate only when it offends justice to deny
such relief.”

Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1293 (10th Cir.2005)

(quotations omitted). As defendants note, plaintiff presents no evidence or argument to support
his argument that it is necessary to reopen the case to prevent injustice. Plaintiff’s argument that
The authorities cited by plaintiff – D. Kan. Rule 72.1.1 and K.S.A. § 60-518 – do
not apply here. D. Kan. Rule 72.1.1 addresses the duties and authority of magistrate judges in
this district, as controlled by 28 U.S.C. § 636. K.S.A. § 60-518 is a rule of procedure which
applies to Kansas state courts, not federal courts such as this, which follow the Federal Rules of
Civil Procedure. See Rule 1, Fed. R. Civ. P.
4

3

he has not had an opportunity to litigate his claims is not well taken, given the procedural history
of this case and Case No. 11-4056-SAC. Both of the claims which plaintiff seeks to bring in his
amended complaint were decided in Case No. 11-4056-SAC, and plaintiff did not appeal. See
Doc. #16 at 21 (dismissing Fourteenth Amendment claim relating to DMV report), 22
(dismissing municipal liability claim because plaintiff did not allege underlying constitutional
violation). A motion under Fed. R. 60(b) does not substitute for a timely appeal on the merits,
and plaintiff cannot attempt to revive in this case claims which Judge Crow already decided.
IT IS THEREFORE ORDERED Plaintiff’s Motion To Vacate Order Of Dismissal And
To Reopen Case (Doc #36) and Plaintiff’s Motion To Amend Complaint (Doc. #37), both filed
October 5, 2011, be and hereby are OVERRULED.
Dated this 24th day of February, 2012 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge

4