Calia v. Werholtz
| Decision Date | 12 April 2006 |
| Docket Number | No. 05-3201 JAR.,05-3201 JAR. |
| Citation | 426 F.Supp.2d 1210 |
| Parties | Robert CALIA, Plaintiff, v. Roger WERHOLTZ, David McKune, and Steve Laun, Defendants. |
| Court | U.S. District Court — District of Kansas |
Robert Calia, Overland Park, KS, Pro se.
Ralph J. Dezago, Office of Attorney General, Topeka, KS, for Defendant.
MEMORANDUM ORDER AND OPINION GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on defendants' Motion for Summary Judgment (Doc. 25). Defendants, Roger Werholtz, David McKune, and Steve Laun, seek summary judgment on plaintiff's Complaint pursuant to Fed.R.Civ.P. 56 arguing that the Court lacks subject matter jurisdiction in this case because defendants are entitled to immunity. As described more fully below, the Court grants defendants' motion for summary judgment.
There are two statutory bases for federal subject matter jurisdiction. First, under 28 U.S.C. § 1332, federal district courts have original jurisdiction of civil actions where complete diversity of citizenship and an amount in excess of $75,000 (exclusive of interest and costs) in controversy exist. Second, under 28 U.S.C. § 1331, federal district courts "have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States," or federal question jurisdiction. In addition, if the Court has federal question or diversity jurisdiction of some claims, it may exercise supplemental jurisdiction over state law claims.1
The Tenth Circuit has commented on the limited jurisdiction of the federal courts and summarized the duties of the district court in considering whether it has jurisdiction to consider a case:
The Federal Rules of Civil Procedures [sic] direct that "whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." . . . Moreover, "[a] court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." . . . Nor may lack of jurisdiction be waived or jurisdiction be conferred by "consent, inaction or stipulation." Since federal courts are courts of limited jurisdiction, there is a presumption against our jurisdiction, and the party invoking federal jurisdiction bears the burden of proof.2
Plaintiff is responsible for showing the court by a preponderance of the evidence that jurisdiction is proper.3 Mere allegations of jurisdiction are not enough.4
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."5 A fact is only material under this standard if a dispute over it would effect the outcome of the suit.6 An issue is only genuine if it "is such that a reasonable jury could return a verdict for the nonmoving party."7 The inquiry essentially determines if there is a need for trial, or whether the evidence "is so one-sided that one party must prevail as a matter of law."8
The moving party bears the initial burden of providing the court with the basis for the motion and identifying those portions of the record that show the absence of a genuine issue of material fact.9 "A movant that will not bear the burden of persuasion at trial need not negate the nonmovant's claim."10 The burden may be met by showing that there is no evidence to support the nonmoving party's case.11 If this initial burden is met, the nonmovant must then "go beyond the pleadings and `set forth specific facts' that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant."12 When examining the underlying facts of the case, the Court is cognizant that it may not make credibility determinations or weigh the evidence.13
Defendants filed their summary judgment motion on February 6, 2006. Plaintiff's response to the summary judgment motion was due twenty-three days later, on March 1, 2006.14 To date, plaintiff has not responded to defendants' summary judgment motion. The District of Kansas Local Rules provide that a party's failure to file a timely response constitutes a waiver of the right to file a response, except upon a showing of excusable neglect.15 Plaintiff has not attempted to make this showing; therefore, the Court finds that plaintiff has waived his ability to file a response.
Although plaintiff has not responded to defendants' motion, this alone does not make summary judgment proper, for plaintiff's burden to respond arises only if the motion is properly supported in the first instance.16 "Accordingly, summary judgment is appropriate under Rule 56(e) only when the moving party has met its initial burden of production under Rule 56(c)."17 If the evidence presented by the moving party does not satisfy this burden, "summary judgment must be denied even if no opposing evidentiary matter is presented."18 Thus, if a nonmoving party fails to respond to a motion for summary judgment, the court must first examine the moving party's submission to determine if it has met its initial burden of demonstrating that no material issues of fact remain for trial and that the moving party is entitled to judgment as a matter of law.19
Additionally, the Court must be mindful in this case of plaintiff's pro se status. A pro se litigant's pleadings are to be liberally construed and are held to a less stringent standard20 This rule requires the court to look beyond a failure to cite proper legal authority, confusion of legal theories, and poor syntax or sentence construction.21 However, the court is not authorized to become the advocate for the pro se litigant.22 "Despite the liberal construction afforded pro se pleadings, the court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues."23 Moreover, plaintiff is not excused from compliance with fundamental rules of procedure because he is proceeding pro se.24 Pro se litigants must follow rules of procedure, including local rules.25 Plaintiff's pro se status, in and of itself, does not prevent this Court from granting summary judgment.26
Plaintiff is a former inmate of Lansing Correctional Facility. During his period of incarceration, plaintiff sought assistance in subscribing to various newspaper, magazine, and newsletter publications. Plaintiff was advised that he would be restricted from subscribing to these publications based on the Kansas Department of Corrections' Internal Management Policy and Procedure ("IMPP") 11-101 and 12-120. IMPP 11-101 promulgates a level system that classifies prisoners based on certain criteria, including the prisoner's behavior, and awards privileges and incentives based on the prisoner's level. Under IMPP 11-101, a Level I offender is not entitled to books, magazines, and newspapers per IMPP 12-120. Because plaintiff was classified as a Level I offender, he was denied his requests for subscriptions.
On January 21, 2005, plaintiff filed an Inmate Complaint with his Unit Team Manager, defendant Laun, alleging that IMPP 11-101 infringed on his First Amendment right to purchase a subscription to The Kansas City Star newspaper. Plaintiff received defendant Laun's response, denying his requests, on January 24, 2005. Plaintiff appealed to the Warden of Lansing Correctional Facility, defendant David McKune. In a memorandum to plaintiff dated January 27, 2005, defendant McKune denied plaintiff's appeal. The facts that occurred after defendant McKune's denial of plaintiff's appeal are in dispute, but are not relevant to the case at this point. Defendants allege that plaintiff did not seek an appeal with the Secretary of Corrections, defendant Roger Werholtz, an act that plaintiff was required to complete within three days of the denial of his appeal in order to exhaust his administrative remedies.28 Plaintiff, however, disputes his failure to file an appeal with the Secretary of Corrections. Plaintiff alleges that he delivered his appeal to the Unit Team Manager, who agreed to submit the appeal to the Secretary of Corrections' office. Because this Court has already determined that plaintiff's claim is not barred by his failure to exhaust his administrative remedies,29 whether plaintiff appealed to defendant Werholtz for relief is immaterial.
On April 21, 2005, plaintiff was released on parole. Plaintiff then filed this action against defendants in their individual and official capacities alleging civil rights violations under 42 U.S.C. § 1983. Plaintiff claims that his First Amendment rights were violated by defendants' implementation of IMPP 11-101 and 12-120. In one part of his Complaint, plaintiff states that he is seeking injunctive, compensatory, and punitive damages.30 However in his "Request for Relief," plaintiff only seeks compensatory damages, punitive damages, and attorney fees and costs.31 Because plaintiff has been released from prison, his claims for injunctive relief are moot.32 Thus, the Court will only address plaintiffs claims for monetary relief. Defendants now move for summary judgment arguing that plaintiff's § 1983 claim should be dismissed because this Court lacks subject matter jurisdiction when defendants are entitled to immunity.
Defendants move to dismiss on the grounds that they are immune from suit in their official capacity under the Eleventh Amendment to the United States Constitution and to the extent the individuals are sued in their personal capacity, they are protected by qualified immunity.
The Eleventh Amendment states that "[t]he judicial power of the United States shall not be...
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