Counce v. Wolting
| Decision Date | 04 May 2016 |
| Docket Number | Case No. 13-3199-JTM |
| Parties | KENNETH COUNCE, Plaintiff, v. RYAN WOLTING, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
MEMORANDUM AND OMNIBUS ORDER
On September 9, 2015, this court ordered plaintiff to submit a final amended complaint by October 16, 2015. (Dkt. 45). On October 9, 2015, plaintiff filed a motion requesting an additional ninety days to perform said act (Dkt. 46) and a motion for reconsideration (Dkt. 47) of the court's September 9, 2014 and September 9, 2015 orders (Dkts. 30 and 45, respectively). He then filed a Final Amended Civil Rights Complaint Pursuant to 42 U.S.C. § 1983 on October 22, 2015 (Dkt. 48, hereafter the "Final Amended Complaint"), and a motion to appoint counsel on November 24, 2015 (Dkt. 49). The court addresses each in the order filed.
Because plaintiff filed this motion before the deadline expired and he filed the required pleading within the requested extension period, the court grants the motion and considers the Final Amended Complaint timely filed.
This motion seeks reconsideration of the court's res judicata concern and its denial of appointment of counsel in the underlying orders. In the September 2014 Order, the court found no compelling reason to appoint counsel "[b]ecause it appear[ed] the claims in this matter have been adjudicated in [] state court." (Dkt. 30 at 5). The court noted that from the materials supplied, it appeared that plaintiff had raised the same claims in the District Court of Ellsworth County, Kansas, in Counce v. Wolting, et al., Case No. 2013-CV-59, which was dismissed on November 19, 2013, as "a frivolous lawsuit based on false allegations." (Id. at 2). In the September 2015 Order, the court concluded that the present record does not support the appointment of counsel at the time because: 1) it appears that many, if not all, of the claims have been presented to another court and rejected as legally frivolous; 2) plaintiff appears capable of presenting the factual bases of his claims; and 3) the legal issues do not appear to be unusually complex. (Dkt. 45 at 3).
The court considers a motion to reconsider as either a motion to alter or amend filed pursuant to Rule 59(e) of the Federal Rules of Civil Procedure or a motion for relief from judgment filed pursuant to Rule 60(b), depending on its filing date. Because petitioner filed this motion more than 28 days from both of the underlying orders, the court treats it as filed pursuant to Rule 60(b). That rule permits a district court to vacate or modify its judgment on any of the following grounds:
(1) mistake, 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 other 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.
Relief under Rule 60(b) "is extraordinary and may only be granted in exceptional circumstances." LaFleur v. Teen Help, 342 F.3d 1145, 1153 (10th Cir. 2003) (quotations omitted).
Plaintiff argues that because he is imprisoned in Texas, "[he] lacks access to any State of Kansas laws or legal materials . . .[,]" rendering him "illiterate" or "helpless." (Dkt. 47 at 4, 7). He also claims that injuries from the October 2013 incident diminished his ability to represent himself. Finally, he attaches an order issued by the Ellsworth District Court on January 7, 2015, which he claims is new evidence that shows the civil judge lacked jurisdiction to dismiss Case No. 2013-CV-59. (Id. at 6).1
Plaintiff's arguments fail to show a basis for relief under Rule 60(b). As to the court's res judicata concerns, the court finds there is nothing to reconsider as the court made no definitive ruling on res judicata. Instead, the court simply noted that res judicata may bar this matter and gave plaintiff an opportunity to explain why res judicata does not apply. (Dkt. 45 at 1, "the court defers ruling on . . . res judicata..."). The court will consider this motion (Dkt.47), as well as the state court's January 5, 2015 Order, as part of plaintiff's response to the court's order to show why this case should not be barred by res judicata in the discussion below.
As to the denial of appointment of counsel, the court finds unpersuasive plaintiff's argument that lack of access to Kansas law renders him helpless or illiterate. Plaintiff is literate. Even if he was illiterate, courts have consistently held that a prisoner's illiteracy is insufficient to merit appointment of counsel. See Finley v. Kerby, 996 F.2d 310 (10th Cir. 1993) (); Green v. United States, Case No. 11-59-HRW, 2013 WL 209019, at *2 (E.D. Ky. Jan. 17, 2013), aff'd (Oct. 25, 2013) (denying request for appointed counsel due to illiteracy). See also Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir.2002), cert. denied, 538 U.S. 984 (2003) (); Yang v. Archuleta, 525 F.3d 925, 929-30 n.7 (10th Cir. 2008) (). Moreover, because a pro se litigant is not required to present any legal authority for his claims, plaintiff's access to Kansas legal materials is not mandated or necessary. Finally, because plaintiff's pleadings are coherent, it does not appear his injuries have affected his abilities to present the facts and his claims. For these reasons, the court declines to reconsider its denial of appointment of counsel.
Because Mr Counce is a prisoner, federal statute requires this court to screen his complaint and to dismiss the complaint or any portion thereof that is frivolous, fails to state a claim on which relief may be granted, or seeks relief from a defendant immune from such relief. 28 U.S.C. § 1915A (a) and (b). Having screened all materials filed, the court finds that portions of the Final Amended Complaint must be dismissed. The court, however, addresses several preliminary matters first.
Pro se litigants are required to adhere to the Federal Rules of Civil Procedure. Rule 10(a) requires that all parties be named in the caption of the complaint. In all other pleadings, after naming the first party on each side, the caption may refer generally to other parties (i.e., "et al."). Fed. R Civ. P. 10(a). This rule is important because a plaintiff may choose to seek recovery against some people he believes are responsible for his injury and not others. Notice and service problems often arise if a plaintiff fails to adhere to this rule.
In the Final Amended Complaint's caption, plaintiff named defendants as follows: "Ryan M. Wolting, et al." (Dkt. 48 at 1). In the defendant's section of the complaint, where plaintiff is to provide information on each defendant, he listed as defendants: Ryan M. Wolting, Eric D. Sauer, Mark A. Bruce, Tracy L. Ploutz, John Doe 1, John Doe 2, John Doe 3, John Doe 4, Dr. Shawn (last name unknown), Kirk E. Simone, Darian P. Dernovish, David Chamberlain, and Theresa Staudinger. (Id., ¶¶ 2-3 at 1-2D). Although plaintiff did not list KHP Trooper Arnold (first name unknown) in the defendants' section, Count 2 clearly indicates that Arnold is an intended defendant. (Id. at 3). While plaintiff failed to comply with Rule 10(a), the court construes the complaint as naming all the above-noted individuals as defendants.2 If this construction by the court of the named defendants is incorrect, plaintiff may present an amended complaint for the sole purpose of complying with Rule 10(a) by naming each intended defendant in the caption.
After comparing the Final Amended Complaint with the state complaints and further review of the record, the court believes that the state court's dismissal of Counce v. Wolting, et al., Case No. 2013-CV-59 (the "State Action"), does not bar this action. Res judicata requires the satisfaction of four elements: 1) the prior suit must have ended with a judgment on the merits; 2) the parties must be identical or in privity; 3) the suit must be based on the same cause of action; and 4) the plaintiff must have had a full and fair opportunity to litigate the claim in the prior suit. Nwosun v. General Mills Restaurants, Inc., 124 F.3d 1255, 1257 (10th Cir. 1997). In the State Action, plaintiff asserted two claims: 1) failure to arraign him within forty-eight hoursafter an arrest without a warrant, and 2) retaliatory seizure of his money to vex prosecution of his civil claim. In this action, plaintiff asserts sixteen3 claims, which include excessive force, deliberate indifference to medical needs, failure to protect, illegal segregation, denial of access to courts, illegal seizure of his money, and denial of due process. As with the claims, plaintiff names more defendants than in the State Action.4 Thus, the parties and the claims arguably are not identical. Even if they were identical, as noted above, federal courts will not apply res judicata if the plaintiff did not have a full and fair opportunity to litigate the claims in state court. See Scroggins v. Kansas Dep't of Human Resources, Div. of CETA, 802 F.2d 1289, 1291 (10th Cir. 1986).
Plaintiff filed the State Action on November 18, 2013. The ...
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