ERIC F. MELGREN, District Judge.
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.
Plaintiff originally filed his Complaint on February 28, 2018, against several Defendants.
On July 2, 2018, Plaintiff filed his Amended Complaint.
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.
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.
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.
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.
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.
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).
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.'"
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.
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."
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."
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 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.
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."
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. . . .'"
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 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.
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.
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.
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.
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, (4) unrestricted telephone access, and (5) unrestricted copies of online legal forms.
This case is closed.
