Camick v. Dorneker et al

Filing 43

MEMORANDUM AND ORDER denying as moot 19 Plaintiff's Motion to Stay Case; granting 23 Defendants' Motion to Dismiss; denying 27 Plaintiff's Motion to Strike Portions of Defendants' Response Memorandum. This case is closed. Signed by District Judge Eric F. Melgren on 1/30/2019. (mam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

LESLIE LYLE CAMICK,
Plaintiff,

vs.

Case No. 18-1065-EFM-GEB

RICHARD DORNEKER, et al.,
Defendants.

MEMORANDUM AND ORDER
In Plaintiff Leslie Lyle Camick’s fourth lawsuit in the District of Kansas, he asserts a claim
under 42 U.S.C. § 1983 against Defendants Sheriff Richard Dorneker; Board of Commissioners
of Chase County, Kansas; John Ehr; and other John or Jane Does of the Chase County Sheriff’s
Office. He claims that these Defendants violated his Fifth and Fourteenth Amendment rights to
due process by impeding his access to the jail’s law library and copying services, and by delaying
the mailing of his appeal of an immigration order. Ultimately, Plaintiff contends that those actions
led to his removal from the United States. Defendants are before the Court with their Motion to
Dismiss (Doc. 23). Because the Court finds that Plaintiff fails to state a claim, the Court grants
Defendants’ motion.

I.

Factual and Procedural Background1

Plaintiff originally filed his Complaint on February 28, 2018, against several Defendants.2
Defendants filed a comprehensive Motion to Dismiss asserting that Plaintiff failed to state a claim.
Plaintiff then filed a Motion to Amend Complaint stating that Defendants raised issues in their
Motion to Dismiss that required clarification of his Complaint. Magistrate Judge Birzer granted
the motion noting that Plaintiff could amend his Complaint as a matter of course pursuant to Fed.
R. Civ. P. 15(a)(1)(B).
On July 2, 2018, Plaintiff filed his Amended Complaint.3 In it, he brings a § 1983 claim
against multiple defendants. These include Sheriff Richard Dorneker (in his individual and official
capacity); the Board of Commissioners of Chase County, Kansas; John Ehr; and other John or Jane
Does as deputies of the Chase County Sheriff’s Office. Plaintiff contends that these Defendants
violated his Fifth and Fourteenth Amendment rights to due process. In general, he claims that
Defendants impeded his access to the law library at the jail, denied him copying services, and
delayed in mailing an appeal related to an immigration order.

1

The facts are taken from Plaintiff’s Amended Complaint and construed in the light most favorable to
Plaintiff. The Court has also taken judicial notice of the pleadings/proceedings in several other cases in this Court and
other district and appellate courts involving Plaintiff.
2

This case is the fourth civil case that Plaintiff has filed in this district. Plaintiff’s first case was dismissed
in 2013 and deemed final in early 2014. Plaintiff attempted to appeal that case to the Tenth Circuit Court of Appeals
in 2017, but the Tenth Circuit dismissed his appeal as untimely. Plaintiff filed his second and third cases in 2017.
This Court dismissed Plaintiff’s cases in 2018, and the Tenth Circuit recently issued its opinion affirming those
dismissals. See Camick v. Holladay, 2018 WL 6658053 (10th Cir. 2018).
3

On the same date, Plaintiff filed a Motion to Stay Case (Doc. 19) in which he requested that the Court stay
all proceedings pending the resolution of a case (his immigration appeal) in front of the Eighth Circuit Court of
Appeals. The Eighth Circuit issued an opinion on June 8, 2018 (this opinion will be discussed in greater detail later
in this Order) and Plaintiff sought a rehearing or rehearing en banc of that order. At the time Plaintiff filed his Motion
to Stay, the Eighth Circuit had not yet ruled on Plaintiff’s request. On August 15, 2018, the Eighth Circuit denied
Plaintiff’s motion. Because Plaintiff’s case concluded before the Eighth Circuit and because the Court finds that
Plaintiff fails to state a claim, the Motion to Stay is denied as moot.

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More specifically, Plaintiff contends that he was detained and jailed in Chase County
starting December 11, 2015. Between December 11, 2015, and March 2, 2016, Plaintiff states
that he had (1) unrestricted copies of legal documents, (2) unrestricted access to the law library,
(3) unrestricted access to the United States Postal Service, (4) unrestricted telephone access, and
(5) unrestricted copies of online legal forms. On March 3, 2016, Plaintiff alleges that his
circumstances at the jail changed.4 He states that his routine access was abruptly terminated
following a meeting with an immigration officer in Wichita in which he informed the officer that
he planned an appeal to the Board of Immigration Appeals (BIA).5
Plaintiff alleges that the immigration officer verbally directed Sheriff Dorneker or
Defendant Ehr or Defendants Jane or John Doe to (1) hinder his access to the law library, (2) hinder
his copy requests, (3) hinder his printing of online forms, (4) hinder or delay Plaintiff’s mails of
forms, legal documents, or appeal briefs, and (5) generally frustrate or impede Plaintiff’s attempt
to seek legal redress before the courts. He also contends that he was notified in writing in March
by Sheriff Dorneker that his copy privileges had been denied as excessive or abusive after he
requested seven copies be sent to the Third Circuit Court of Appeals.6
On Saturday, March 5, Plaintiff had a verbal discussion with an unidentified deputy about
why he was being denied copy privileges. The deputy informed him that those were the directions
from Sheriff Dorneker.

4

According to the Eighth Circuit Court of Appeals’ opinion in Camick v. Sessions, 891 F.3d 1101 (2018),
Plaintiff was supposed to voluntarily depart the United States by March 3, 2016. Id. at 1104. The Department of
Homeland Security (DHS) served him with a Warning for Failure to Depart on March 3. Id.
5

Plaintiff’s immigration appeal will be discussed in more depth below.

6

Plaintiff had cases before the Eighth and Third Circuits.

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On March 12, 2016, Plaintiff gave his BIA appeal to Deputy Ehr. On that day, Deputy Ehr
picked up Plaintiff’s appeal from Plaintiff’s “window sill” and told Plaintiff that he would go to
the Cottonwood Falls U.S. Post Office on his lunch break. Plaintiff alleges that Deputy Ehr had
previously demonstrated competence and reliability.
On March 15, 2016, Plaintiff was called into the hallway for a case status update by the
immigration officer. At that time, an unidentified deputy hand delivered a tracking receipt for the
March 12 mailing. The unidentified deputy informed Plaintiff that Deputy Ehr had placed the
tracked envelope in the regular “out” mail. Plaintiff expressed concern to the immigration officer
that his appeal would not timely arrive to the BIA on March 14, 2016, due to Deputy Ehr’s
placement of it in the regular “out” mail. Plaintiff alleges that Deputy Ehr’s usual practice of
sending Plaintiff’s mail out via tracking receipt would have ensured delivery to the BIA on March
14, 2016. Plaintiff’s appeal was received by the BIA on March 17, 2016.7
On July 28, 2016, the BIA denied Plaintiff’s appeal. The BIA determined that his appeal,
received on March 17, was untimely. In that opinion, the BIA noted that Plaintiff’s due date was
March 12, 2016, but receiving the appeal on the following Monday, March 14, would have been
acceptable.

7
In Plaintiff’s first Complaint, he alleged that he believed that the appeal deadline was March 18, 2016. In
his Amended Complaint, Plaintiff changes that date to March 14 and does not include the March 18 date. Plaintiff
also alleges in his Amended Complaint that on March 14, 2016, he mailed a letter to the BIA via regular mail
expressing concern about the actual date of his appeal. In addition, in the Eighth Circuit’s opinion, the court noted
that Plaintiff “stated that he was confused about whether the thirty days to file a notice of appeal did not begin until
February 18, based on the Form I-229(a) Warning.” Camick, 891 F.3d at 1104-05. Plaintiff also made arguments to
the Eighth Circuit that his appeal was timely because the timeframe for appeal began on February 18, 2016. Id. at
1106. Taking all inferences in favor of Plaintiff, the Court will construe his Amended Complaint (and his arguments
in his briefing) to mean that he believed the deadline was March 14 (the earlier date).

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Plaintiff alleges that during his incarceration of fifty-four months, he was successful in
meeting all court deadlines in numerous courts. Plaintiff’s untimely filing with the BIA was the
first event ruled untimely for Plaintiff. He claims that the untimely filing was caused by Deputy
Ehr.
On March 23, 2016, Plaintiff was removed from the United States. He alleges that all
Defendants conspired with each other to deprive Plaintiff of due process by denying his right to
legal copy services or law library access and causing undue delay in mailing his BIA appeal.
Ultimately, he alleges that these failures created grounds for his removal from the United States.
As noted above, Plaintiff originally filed his Complaint in February 2018 but filed an
Amended Complaint in July 2018 after Defendants filed a Motion to Dismiss asserting that
Plaintiff failed to state a claim. Defendants have again filed a Motion to Dismiss based on the
allegations in the Amended Complaint. Plaintiff responded and filed a Motion to Strike portions
of Defendants’ brief (Doc. 27).8 The Court will now address Defendants’ motion.
II.

Legal Standard

Under Rule 12(b)(6), a defendant may move for dismissal of any claim where the
plaintiff has failed to state a claim upon which relief can be granted. On such motion, the court
must decide “whether the complaint contains ‘enough facts to state a claim to relief that is plausible
on its face.’ ”9 A claim is facially plausible if the plaintiff pleads facts sufficient for the court to

8
Plaintiff frequently files motions to strike objecting to the other party’s characterization of events. Plaintiff
does not identify any sufficient ground for striking material in Defendants’ brief, and the Court denies Plaintiff’s
motion.
9
Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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reasonably infer that the defendant is liable for the alleged misconduct.10 The plausibility standard
reflects the requirement in Rule 8 that pleadings provide defendants with fair notice of the nature
of claims as well as the grounds on which each claim rests.11 Under Rule 12(b)(6), the court must
accept as true all factual allegations in the complaint but need not afford such a presumption to
legal conclusions.12 If the allegations in the complaint are “so general that they encompass a wide
swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the
line from conceivable to plausible.’ ”13
Generally, the Court is constrained by the allegations in the complaint when
considering a motion to dismiss. A court, however, may take facts subject to judicial notice, such
as “its own files and records, as well as facts which are a matter of public record” without
converting a motion to dismiss to one for summary judgment.14
Because Plaintiff is pro se, the Court is mindful of considerations for an unrepresented
plaintiff. “A pro se litigant’s pleadings are to be construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers,” but the Court will not “assume the role of
advocate for the pro se litigant.”15 To avoid dismissal, the pro se complaint “must set forth the
grounds of plaintiff’s entitlement to relief through more than labels, conclusions and a formulaic

10

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

11

See Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008); see also Fed. R. Civ. P. 8(a)(2).

12

Iqbal, 556 U.S. at 678-79.

13

Robbins, 519 F.3d at 1247 (quoting Twombly, 550 U.S. at 570).

14

Tal v. Hogan, 453 F.3d 1244, 1264-65, n. 24 (10th Cir. 2006) (citations omitted).

15

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

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recitation of the elements of a cause of action . . . [and] must allege sufficient facts to state a claim
which is plausible—rather than merely conceivable—on its face.”16
With regard to Plaintiff’s pro se status, however, Plaintiff is a prolific filer. As the
Eighth Circuit Court of Appeals noted in its recent decision, it rejected Plaintiff’s contention that
he was “entitled to special treatment as a pro se litigant dealing with the complex world of
immigration law” because after reviewing Plaintiff’s “pleadings, briefs, substantive arguments,
and procedural maneuvers,” it concluded that he was “remarkably well versed in immigration law
and practice.”17 Indeed, this Court notes that Plaintiff is adept at procedural and substantive
arguments and has presented arguments to three circuit courts of appeal, two district courts, and
the BIA. Accordingly, the Court will keep these considerations in mind when considering
Plaintiff’s pleadings.
III. Discussion
Plaintiff brings a § 1983 claim asserting that Defendants violated his Fifth and
Fourteenth Amendment rights to due process. His claim is essentially that Defendants denied him
access to the courts which resulted in his deportation from the United States. Defendants assert
multiple reasons for dismissal. First, Defendants claim that Plaintiff fails to state a cause of action
against the Chase County Board of Commissioners or any “Doe” Defendants and that they are
improperly included as Defendants. Next, Defendants assert that Plaintiff cannot state a claim
because Plaintiff (1) does not demonstrate that he has a constitutional right of access to the
immigrations courts while he was incarcerated, (2) does not allege any actual injury as a result of

16

Fisher v. Lynch, 531 F. Supp. 2d 1253, 1260 (D. Kan. 2008) (citations omitted).

17

Camick, 891 F.3d at 1103, n. 1.

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Defendants’ alleged restrictions to his law library access or copying services, (3) does not
demonstrate that the alleged failure of mailing his BIA appeal resulted in a constitutional violation,
and (4) does not show that the alleged untimely mailing of his BIA appeal caused him any injury.
Finally, Defendants contend that Plaintiff cannot prosecute his case because he is legally barred
from entering the United States for at least the next eight years.
A.

Improper Defendants

Defendants assert that Plaintiff fails to state a claim against the Chase County Board of
Commissioners and John/Jane Does (unknown officers of the Chase County Sheriff’s Office).
They contend that Plaintiff makes no individualized allegations against the county commissioners
or the unknown officers. Instead, they contend that Plaintiff simply lumps all Defendants together
with no specifics as to any commissioner’s or John/Jane Doe’s action. Plaintiff does not address
Defendants’ argument in his response to their Motion to Dismiss.
A review of the Amended Complaint confirms Defendants’ argument. Plaintiff does not
include specific allegations related to board members. In addition, he does not allege the existence
of a policy or custom formulated by the county commissioners. To the extent Plaintiff attempts to
assert a claim against the county, a municipality or a county “cannot be held liable under section
1983 on a respondeat superior theory for merely employing a tortfeasor.”18 Instead, a county can
only be held liable for an official policy or custom.19 Because Plaintiff fails to include specific

18

Starrett v. Wadley, 876 F.2d 808, 818 (10th Cir. 1989) (citing Monell v. New York City Dep’t of Soc. Servs.,
436 U.S. 658, 691 (1978)).
19

Id. (citing Monell, 436 U.S. at 694).

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allegations against any individual commissioner and fails to allege a policy or custom in place, the
Chase County Board of Commissioners is dismissed.
Plaintiff’s Amended Complaint also does not include specific allegations related to
unknown officers of the Chase County Sheriff’s Office. “In the context of § 1983 claims, the
Tenth Circuit has held that a plaintiff’s Complaint fails to provide adequate notice to the defendants
of the nature of the claims against them when the pleading ‘fails to isolate the allegedly
unconstitutional acts of each defendant . . . .’ ”20

“[I]t is particularly important in such

circumstances that the complaint make clear exactly who is alleged to have done what
to whom . . . .”21 Because Plaintiff fails to include specific allegations with regard to the unknown
Defendants, the John/Jane Does (unknown officers) must also be dismissed.22
B.

Failure to State a Claim

Defendants next assert that Plaintiff cannot state a claim for multiple reasons. The Court
need not address all of Defendants’ contentions and will only address the arguments that Plaintiff
fails to allege or demonstrate any actual injury. Defendants set forth two arguments with regard
to Plaintiff’s injury and contend that Plaintiff 1) does not allege any actual injury as a result of
Defendants’ alleged restrictions to his law library access or copying services, and 2) does not show
that the alleged untimely mailing of his BIA appeal caused him any injury. A discussion of

20

Neighbors v. Lawrence Police Dep’t., 2016 WL 3685355, at *8 (D. Kan. 2016) (citing Robbins, 519 F.3d

21

Robbins, 519 F.3d at 1250.

at 1250).

22

The Court only found three references to an unknown officer, identified as Deputy B, in Plaintiff’s
Amended Complaint. Two allegations simply relate to information about the mail that this officer relayed to Plaintiff.
The other allegation states that this deputy conveyed information to Plaintiff that his copy privileges were being denied
indefinitely by the Sheriff. None of these allegations are sufficiently specific.

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Plaintiff’s immigration appeal to the Eighth Circuit and a review of the Eighth Circuit’s opinion is
necessary.
On June 8, 2018, the Eighth Circuit issued its opinion on Plaintiff’s appeal of two decisions
of the BIA related to his deportation.23 In this decision, the Eighth Circuit noted the underlying
facts surrounding Plaintiff’s deportation. At a February 11, 2016, removal hearing, Plaintiff agreed
to a “ ‘pre-conclusion’ voluntary departure” which would “allow him to depart the United States
without a removal order and return immediately if he secured a visa, avoiding the ten-year ban on
reentering the United States after removal, but he would have to ‘waive appeal today of all
issues.’ ”24 On this same date, the immigration judge (IJ) issued a written order granting the
voluntary departure which gave Plaintiff until March 3, 2016, to depart.25 The immigration judge
also entered an alternate order of removal to Canada and stated that both parties had waived their
right to appeal.26 Plaintiff was served this order on February 11, 2016.27
Plaintiff did not voluntarily depart by March 3, did not ask the IJ for more time to do so,
and did not file a motion to reopen or reconsider the voluntary departure grant.28 On March 3,
Plaintiff was served with a warning for failure to depart which listed February 18, 2016, as the
date the IJ’s removal order became final.29 On March 12, Plaintiff gave “a notice of appeal of the

23

Camick, 891 F.3d 1101.

24

Id. at 1104.

25

Id.

26

Id.

27

Id.

28

Id.

29
Id. There was confusion as to the date the IJ’s removal order became effective—February 11 or February
18. Ultimately, the order became effective on February 11, 2016, and the time to appeal began running on that date.

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IJ’s February 11 decision to detention facility officials for mailing to the BIA.”30 The BIA received
Plaintiff’s appeal on March 17.31
In the BIA’s July 28, 2016, opinion, the BIA dismissed Plaintiff’s appeal for three reasons,
including that it was untimely filed because it should have been filed by March 14.32 Plaintiff filed
a motion for reconsideration which the BIA also denied.33 In this opinion, the BIA “expressly
consider[ed] [Plaintiff’s] allegations that the detention facility impermissibly denied him
photocopy and law library access and delayed mailing his notice of appeal,” but it found that
plaintiff “failed to establish it should exercise its self-certification authority to accept [Plaintiff’s
appeal.”34
Plaintiff then appealed those two decisions to the Eighth Circuit which consolidated the
two petitions for review. The Eighth Circuit noted that Plaintiff’s focus was whether the appeal
was timely filed.35 However, the circuit noted that in the unique circumstances of the case, “the
answer to the untimely appeal question is immaterial” to its decision.36 The Eighth Circuit
concluded that as of March 3, Plaintiff’s voluntary departure date, his agreement with the
government was no longer executory.37 Because Plaintiff “made no valid attempt to withdraw

30

Id. The Court notes that these facts are consistent with Plaintiff’s facts in his Amended Complaint.

31

Id. at 1105.

32

Id. The BIA also noted that Plaintiff waived his right to appeal the IJ’s decision at the February 11 hearing
and that his claim for ineffective assistance of counsel failed to comply with the requirements.
33

Id.

34

Id. (citing 8 C.F.R. § 1003.1(c)).

35

Id. at 1107.

36

Id.

37

Id. at 1108.

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from the executory pre-conclusion order” and he only attempted to file a lengthy appeal after
overstaying that period, the Eighth Circuit found that his effort was untimely.38 Thus, the circuit
concluded that Plaintiff’s “belated appeal to the BIA was untimely because it was filed after
termination of the voluntary departure period, whether or not it was timely filed under the BIA’s
procedural regulations.”39 Accordingly, “any error by the BIA in not taking up this futile appeal
of the alternative removal order on the merits was harmless.”40
In sum, the fact that Plaintiff’s BIA appeal arrived late (March 17 instead of March 14) had
no impact on his immigration case. Had Plaintiff wanted to withdraw from the pre-conclusion
voluntary departure order, he needed to withdraw from the order while it was still executory (prior
to March 3). Because he failed to do so (and failed to depart), the February 11 alternate removal
order became final and unappealable.
For purposes of this order, March 3 is the relevant date to consider. Only if Plaintiff
attempted to withdraw from the executory pre-conclusion order (and was thwarted from doing so)
would Plaintiff have an injury related to his immigration appeal and subsequent deportation from
the United States.

None of Plaintiff’s allegations in his Amended Complaint regarding

Defendants’ behavior arise prior to March 3. Indeed, Plaintiff alleges that his circumstances at the
jail changed on March 3 and negatively impacted his filing deadline of March 14. He also
specifically alleges that prior to March 3, he had (1) unrestricted copying of legal documents, (2)
unrestricted access to the law library, (3) unrestricted access to the United States Postal Service,

38

Id.

39

Id.

40

Id.

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(4) unrestricted telephone access, and (5) unrestricted copies of online legal forms.41 Thus, even
if his access was curtailed on March 3, it did not negatively impact Plaintiff’s immigration status
or appeal.42 Accordingly, because any alleged delay in mailing or filing Plaintiff’s BIA appeal
would not have impacted Plaintiff’s immigration status or his deportation, Plaintiff does not and
cannot allege an injury.43 Plaintiff fails to state a claim, and Defendants’ Motion to Dismiss is
granted.
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss (Doc. 23) is
GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike Portions of Defendants’
Response Memorandum (Doc. 27) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Stay Case (Doc. 19) is DENIED
AS MOOT.

41

To the extent that Plaintiff attempts to bring a separate claim about lack of access to the law library or
copying services, he does not allege any actual injury from an alleged two weeks’ worth of limited access. Although
prisoners have a right of access to courts and adequate law libraries, “an inmate cannot establish relevant actual injury
simply by establishing that his prison’s law library or legal assistance program is subpar, the inmate must go one step
further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts
to pursue a legal claim.” Proch v. United States Bureau of Prisons, 667 F. App’x 708, 710 (10th Cir. 2016) (internal
quotation marks and citations omitted). Here, Plaintiff alleges that he did file his briefs, albeit he alleges that they
were untimely. Thus, Plaintiff fails to state a claim.
42

Plaintiff does not allege that he attempted to mail or file anything on March 3. Even if Plaintiff had
attempted to mail something on March 3, it would have been untimely because it would not reach its destination on
or before March 3.
43
As noted above, Plaintiff filed a Motion to Stay in July. In that motion, he noted the Eighth Circuit’s
decision but stated that he had applied for a rehearing en banc with the Eighth Circuit Court of Appeals. He argued
that this Court should stay the case until the Eighth Circuit made a decision on whether to rehear the matter or rehear
it en banc because its decision could be dispositive to this case. He also stated that should there be a favorable ruling
to Defendants, he would “promptly move the Court for a dismissal of the complaint.” Doc. 19, p. 3. The Eighth
Circuit denied Plaintiff’s petition for rehearing on August 15, 2018. Plaintiff now contends in his briefing a view
completely contrary to one that he previously took and states that the Eighth Circuit’s ruling is immaterial and a factual
matter for a jury to decide. Doc. 37, p. 13. Plaintiff’s statements in his briefings and pleadings are somewhat
disingenuous in that they change depending on the circumstances.

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IT IS SO ORDERED.
This case is closed.
Dated this 30th day of January, 2019.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

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