Ellibee v. Feleciano
| Decision Date | 22 March 2011 |
| Docket Number | CASE NO. 08-3186-SAC |
| Parties | NATHANIEL W. ELLIBEE, Plaintiff, v. PAUL FELECIANO, JR., et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
Plaintiff proceeds pro se on an amended hybrid complaint seeking relief under both 42 U.S.C. § 1983 and 28 U.S.C. § 2241 on allegations of error in being denied parole in 2007. The three defendants named in this action are the three Kansas Parole Board (KPB) members who participated in that parole board hearing and decision.
Finding plaintiff's allegations presented no cognizable due process or equal protection claim, the court dismissed the action to the extent plaintiff sought relief under § 1983. To the extent plaintiff sought habeas corpus relief under § 2241, the court dismissed the action without prejudice to allow plaintiff to properly exhaust his state court remedies.
The Tenth Circuit Court affirmed the dismissal of all § 1983 claims alleging the denial of due process, finding this court was "patently correct" in dismissing these claims because plaintiff had no right to parole that was protected by the Due Process Clause.Ellibee v. Feleciano, 374 Fed.Appx. 789, 792 (10th Cir.2010). However, the circuit court reversed and remanded for this court's consideration of plaintiff's § 1983 claim that defendants had retaliated against him for exercising his rights under the First Amendment. Id. The circuit court also reversed the dismissal without prejudice of plaintiff's attempt to seek habeas corpus relief under § 2241, finding it was fair to presume, under Kansas law, that the Kansas Supreme Court's summary one word denial of the original petition plaintiff submitted directly to that court constituted a decision on the merits and full exhaustion of plaintiff's state court remedies. Id. at 793-94.
Having reviewed the record, the court now considers and decides the following motions, and the response filed to plaintiff's request for habeas corpus relief.
Noting that defendant Paul Feleciano is no longer a member of the Kansas Parole Board, plaintiff seeks to add Feleciano's replacement on the board (Michael Tom Sawyer) as a defendant. The substitution of parties under Rule 25 of the Federal Rules of Civil Procedure controls this request. Pursuant to that rule, Sawyer is automatically substituted as a defendant to the extent plaintiff seeks relief from Feleciano in that defendant's official capacity. Fed.R.Civ.P. 25(d).1 Plaintiff's action against Feleciano in thatdefendant's individual capacity remains intact. Id.
Plaintiff filed a motion for relief from judgment based upon a mistake of law, pursuant to Fed.R.Civ.P. 60(b)(1), seeking to set aside this court's rejection of all due process claims regarding the denial of parole in the 2007 hearing. Plaintiff now contends the disposition of his due process claims by this court, and affirmed by the circuit court, was based on a mistaken understanding of Kansas law. Plaintiff's motion is denied.2
"Rule 60(b)... provides an exception to finality that allows a party to seek relief from a final judgment, and request reopening of the case, under a limited set of circumstances." United Student Aid Funds, Inc. v. Espinosa,---U.S.----, 130 S.Ct. 1367, 1376 (2010)(internal quotations and citations omitted). Generally speaking, "such relief is extraordinary and may only be granted in exceptional circumstances." Servants of Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir.2000)(internal quotations omitted).
The Tenth Circuit opinion and mandate clearly covered the issue plaintiff raises in his Rule 60(b) motion, and this court finds noexceptional circumstances are alleged or apparent for deviating from that mandate. Because the circuit court expressly disposed of plaintiff's due process claims, this court is bound by that mandate. See Procter & Gamble Co. v. Haugen, 317 F.3d 1121, 1126 (10th Cir.2003)(discussing mandate rule); Kerman v. City of New York, 374 F.3d 93, 109-110 (2d Cir.2004)("Where the appellate court has decided a question of law, the lower court on remand lacks discretion to decide that question to the contrary.").
Likewise, plaintiff's related motion for this court to certify a state law question to the Kansas Supreme Court's for its consideration, as to "whether or not an offender can state a constitutional claim for serious due process violations or arbitrary and capricious decision making against the Kansas Parole Board" (Doc. 38, p.1) is denied. See K.S.A. 60-3201 ().
Whether to certify a question to the state courts rests in the sound discretion of the federal district court. Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974). Certification is particularly appropriate where the legal question at issue is novel and the applicable state law is unsettled, id., and the Tenth Circuit has held that it "will certify only questions of state law that are both unsettled and dispositive." Kansas Judicial Review v. Stout, 519 F.3d 1107, 1119 (10th Cir.2008)(quotation marks and citationomitted).
In the present case, Kansas law is not as unsettled as plaintiff reads it to be, and certification is not necessary where the state-law question plaintiff is proposing addresses due process issues the federal court has already decided against plaintiff in this matter.
Section 1983 is appropriate to the extent plaintiff seeks injunctive or declaratory relief to correct constitutionally defective parole procedures and to benefit from new constitutionally acceptable procedures in future parole hearings. Herrera v. Harkins, 949 F.2d 1096, 1097-98 (10th Cir.1991). To the extent plaintiff proceeds under § 1983 in this hybrid action, defendants seek dismissal of the amended complaint as stating no claim upon which relief can be granted.
"Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend." Perkins v. Kansas Dept. of Corrections, 165 F.3d 803, 806 (10th Cir.1999). The factual allegations in a complaint "must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). No "heightened fact pleading" is required under this standard, "but only enough facts to state a claim to relief that isplausible on its face." Id. at 570. In reviewing the sufficiency of the complaint, the court presumes all of the plaintiff's "well-pleaded facts" but not "conclusory allegations" to be true. McBride v. Deer, 240 F.3d 1287, 1289 (10th Cir.2001)(internal quotation omitted). A pro se plaintiff's complaint must be broadly construed. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court reviewing the sufficiency of a complaint is not to "supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. State of N.M., 113 F.3d 1170, 1173-74 (10th Cir.1997).
Plaintiff claims defendants denied him parole in retaliation for plaintiff's exercise of his First Amendment right of access to the courts, and to petition the government to redress grievances.
Prison officials may not retaliate against an inmate for pursuing a constitutionally protected activity, including exercising his right of access to the courts. Penrod v. Zavaras, 94 F.3d 1399, 1404 (10th Cir.1996); Smith v. Maschner, 899 F.2d 940, 947 (10th Cir.1990). "Mere allegations of constitutional retaliation will not suffice; plaintiff must rather allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights." Frazier v. Dubois, 922 F.2d 560, 562 n.1 (10th Cir.1990). A plaintiff also "must prove that 'but for' the retaliatory motive, the incidents to which he refers...would not have taken place." Maschner, 899 F.2d at 949-50. Accord Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir.1998)(a plaintiff must demonstrate that the"alleged retaliatory motives were the 'but for' cause of the defendants' actions"). Additionally, plaintiff must be able to demonstrate the alleged retaliatory action was sufficiently adverse that it would chill a person of ordinary firmness from engaging in protected activity in the future. See e.g., Strope v. McKune, 382 Fed.Appx. 705, 710, n.4 (10th Cir.2010)(applying third element of whether retaliation was sufficiently adverse to claims in prison context)(unpublished opinion)(quotation marks and citations omitted).3
To establish a factual basis of retaliation based on the exercise of his constitutional rights, plaintiff itemizes "a laundry list of litigation and whistle-blowing activity."4 Plaintiff cites seventeen cases he filed in the state and federal courts between 2002 and 2005, 5 four post-conviction challenges filed between 1996 and 2004, and over one hundred administrative grievances filed as of February 2008. He also cites seven example cases where he provided legal advice and assistance to other prisoners, and cites his efforts at presenting concerns about the conditions of his confinement to public officials and various governmental agencies between 2001 and 2004.
It is recognized, however, that providing legal assistance toother prisoners is not a protected constitutional activity. Maschner, 899 F.2d at 950. Thus plaintiff's actions on behalf of other prisoners are not facts that support a showing of retaliation.
Plaintiff's reference to his own litigation and his administrative grievances, on the other hand, implicate constitutionally protected activities. See Lewis v. Casey, 518 U.S. 343 (1996)(constitutionally protected right of a prisoner's access to the courts is limited...
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