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Kobel v. Lansing Correctional Facility, 14-3042 (2014)

Court: Court of Appeals for the Tenth Circuit Number: 14-3042 Visitors: 6
Filed: Aug. 28, 2014
Latest Update: Mar. 02, 2020
Summary: FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS August 28, 2014 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court SCOTT HARRIS KOBEL, Plaintiff-Appellant, v. No. 14-3042 (D.C. No. 5:13-CV-03088-SAC) LANSING CORRECTIONAL (D. Kan.) FACILITY; FNU LNU (1), Warden, Lansing Correctional Facility; FNU LNU (2), Deputy Warden, Lansing Correctional Facility; FNU LNU (3), Administrators, Lansing Correctional Facility; (FNU) NANCE, Custody Staff Housing C1, Lansing Correct
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                                                             FILED
                                                  United States Court of Appeals
                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                        August 28, 2014
                             TENTH CIRCUIT
                                                      Elisabeth A. Shumaker
                                                          Clerk of Court

SCOTT HARRIS KOBEL,

      Plaintiff-Appellant,

v.                                               No. 14-3042
                                        (D.C. No. 5:13-CV-03088-SAC)
LANSING CORRECTIONAL                               (D. Kan.)
FACILITY; FNU LNU (1), Warden,
Lansing Correctional Facility; FNU
LNU (2), Deputy Warden, Lansing
Correctional Facility; FNU LNU (3),
Administrators, Lansing Correctional
Facility; (FNU) NANCE, Custody
Staff Housing C1, Lansing
Correctional Facility; (FNU) REECE,
Custody Staff Housing C1, Lansing
Correctional Facility; FNU LNU (4),
Any/All Unit Team Staff from
February 2013 to May 2013, Lansing
Correctional Facility; (FNU) MOORE,
S.O.R.T., Lansing Correctional
Facility; FNU LNU (5), All A1 Staff,
Lansing Correctional Facility; (FNU)
LONG, Lansing Correctional Facility;
FNU LNU (6), A1 Unit Team Staff,
Lansing Correctional Facility; (FNU)
ZAMORA, Correctional Officer I,
Lansing Correctional Facility; (FNU)
BEYEN, Correctional Officer I,
Lansing Correctional Facility; (FNU)
HEAD, Correctional Officer I, Lansing
Correctional Facility; (FNU) LEE,
Correctional Officer I, Lansing
Correctional Facility; (FNU)
GUNTHRIE, Correctional Officer I,
Lansing Correctional Facility; FNU
LNU (7), All A1 Custody Staff from
 March 27 to April 9, 2013, Lansing
 Correctional Facility; (FNU) LORD,
 Lansing Correctional Facility; (FNU)
 YOUNG, Lansing Correctional
 Facility; (FNU) HARTLEY, Lansing
 Correctional Facility; (FNU) ZEMA,
 Lansing Correctional Facility; (FNU)
 ELLIOTT, Lansing Correctional
 Facility; (FNU) MUCKENTHALER,
 Lansing Correctional Facility; (FNU)
 HOLTHAUS, Lansing Correctional
 Facility; (FNU) BASKAS,
 Correctional Officer, Lansing
 Correctional Facility; (FNU)
 GRAHAM, Lansing Correctional
 Facility; (FNU) PAYNE, Lansing
 Correctional Facility,

          Defendants-Appellees.



                           ORDER AND JUDGMENT *


Before GORSUCH, O’BRIEN, and PHILLIPS, Circuit Judges.


      Scott Kobel filed a pro se complaint against various Kansas prison officials

under 42 U.S.C. § 1983. As required by statute, the district court screened



      *
         After examining the brief and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

                                        -2-
Mr. Kobel’s complaint to determine whether he stated a non-frivolous basis for

legal relief. 28 U.S.C. § 1915A(a), (b); see also Jones v. Bock, 
549 U.S. 199
,

213-16 (2007). Finding none, the district court warned Mr. Kobel that if he did

not correct his complaint and pay the required filing fee, his suit would be

dismissed. Mr. Kobel never complied and the district court entered judgment

dismissing Mr. Kobel’s complaint without prejudice. Mr. Kobel then filed a

motion for reconsideration under Fed. R. Civ. P. 60(b)(6) but the district court

denied it. It is this denial Mr. Kobel now appeals.

      Mr. Kobel argues that the district court should have reinstated his claims

because he changed addresses and never received the district court’s warning.

But a movant seeking relief under Rule 60(b)(6) must “show extraordinary

circumstances justifying the reopening of a final judgment.” Gonzalez v. Crosby,

545 U.S. 524
, 535 (2005) (internal quotation marks omitted). The district court

found no such circumstances here because nothing prevented Mr. Kobel from

apprising the district court of his new location or inquiring about the status of his

lawsuit. Neither are we given any reason to think the district court’s analysis or

conclusion amounts to a reversible abuse of discretion. Mr. Kobel’s motion to

proceed in forma pauperis is therefore denied and this appeal is dismissed. This

appeal counts as a strike for purposes of the Prison Litigation Reform Act.

See Jennings v. Natrona Cnty. Det. Ctr. Med. Facility, 
175 F.3d 775
, 780

(10th Cir. 1999); Johnson v. Standifird, 400 F. App’x 369, 371 (10th Cir. 2010).

                                         -3-
Mr. Kobel is reminded that he must make immediate payment of the unpaid

balance of his appellate filing fee. All other motions are denied.


                                              ENTERED FOR THE COURT



                                              Neil M. Gorsuch
                                              Circuit Judge




                                        -4-

Source:  CourtListener

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