Case 5:19-cv-03025-JAR Document 269 Filed 07/08/24 Page 1 of 11
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF KANSAS
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`PAUL GUEBARA,
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`Plaintiff,
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`v.
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`KEVEN BASCUE, et al.,
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`Defendants.
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` Case No. 5:19-CV-3025-JAR
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`MEMORANDUM AND ORDER
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`Plaintiff Paul Guebara brought this action against various employees of the Finney
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`County Jail (“FCJ”) and the Finney County Health Department (“FCHD”), asserting claims
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`under 42 U.S.C. § 1983 relating to his medical care during his detention in the FCJ. On
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`December 1, 2023, this Court granted Defendants Keven Bascue, Kyle Lawson, Jeff Orebaugh,
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`Mark Welch,1 and Michelle Newsome’s Motion for Summary Judgment, as well as Defendants
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`Hannah Britt,2 Harold Perkins, and the FCHD’s Motion for Summary Judgment.3 The Court
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`also set aside the Clerk’s entry of default against Defendant Gretchen Dowdy, and gave Plaintiff
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`notice of its intent to award summary judgment in her favor for the same reasons as Britt.4 On
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`May 16, 2024, this Court denied Plaintiff’s Motion for Reconsideration and awarded summary
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`1 On the docket sheet, Defendant Welch’s name is spelled “Welsh,” which is how Plaintiff spelled it in his
`Complaint. The Court adopts the spelling “Welch” as this is the spelling Defendants used in their briefings and
`exhibits. See Doc. 217-6 (Welch Affidavit).
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`2 Hannah Britt was known by her maiden name at the time the events underlying this suit took place,
`therefore she is listed as “Hannah Douty” in Plaintiff’s Amended Complaint. Doc. 88. The Court uses her married
`name, Britt, in this Order.
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`3 Doc. 241.
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`4 Id.
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`Case 5:19-cv-03025-JAR Document 269 Filed 07/08/24 Page 2 of 11
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`judgment in favor of Defendant Dowdy.5 That same day, the Court entered a final judgment
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`closing the case.6 Within a week, Plaintiff filed a notice of appeal.7
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`This matter is before the Court on four motions filed by Plaintiff: (1) Motion for
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`Additional Factual Findings (Doc. 256) pursuant to Fed. R. Civ. P. 52; (2) Motion for Relief
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`from Judgment (Doc. 259) pursuant to Fed. R. Civ. P. 60; (3) Motion for Leave to Appeal In
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`Forma Pauperis (Doc. 264); and (4) Motion to the Court to Order the Clerk to Reimburse Filing
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`Fee (Doc. 267). The motions are fully briefed, and the Court is prepared to rule. As described
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`below, the Court denies Plaintiff’s motion for additional findings and his motion for relief from
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`judgment. The Court denies Plaintiff’s motion for leave to appeal in forma pauperis (“IFP”)
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`without prejudice to refiling. The Court grants Plaintiff’s motion for the reimbursement of filing
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`fees to his sister.
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`I.
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`Motion for Additional Factual Findings
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`Plaintiff asks the Court to make particular factual findings pursuant to Fed. R. Civ. P. 52
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`“for the purpose of appeal.”8 Specifically, Plaintiff asserts that this Court failed to make certain
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`findings in its prior Orders granting summary judgment for Defendants, and that this failure has
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`prevented the Court’s Orders from becoming final. Defendants argue that Rule 52 is
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`inapplicable, and that Plaintiff’s motion should be construed as an improper, second motion for
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`reconsideration under Rule 59. Defendants assert that Plaintiff is attempting to re-argue issues
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`already decided. The Court agrees with Defendants and finds that Plaintiff’s motion must be
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`denied.
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`5 Doc. 251.
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`6 Doc. 252.
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`7 Doc. 253.
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`8 Doc. 256 at 4.
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`Case 5:19-cv-03025-JAR Document 269 Filed 07/08/24 Page 3 of 11
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`A.
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`Rule 52
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`Rule 52 provides that, “[i]n an action tried on the facts without a jury or with an advisory
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`jury, the court must find the facts specially and state its conclusions of law separately.”9
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`“Generally, this rule applies to findings of fact and conclusions of law entered after a non-jury
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`trial.”10
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`Here, Plaintiff may not request additional factual findings because Rule 52 is
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`inapplicable. Plaintiff’s action was not tried, but rather was disposed of on motions for summary
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`judgment under Rule 56. Rule 52 specifically exempts motions under Rule 56 from its purview,
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`stating that “[t]he court is not required to state findings or conclusions when ruling on a motion
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`under Rule 12 or 56 . . . .”11 Thus, this Court was not required to set forth findings of fact and
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`conclusions of law in its Orders granting summary judgment for Defendants, and Plaintiff’s
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`request for additional factual findings is without merit.12
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`Plaintiff asserts that the Court’s judgment is not yet final because the Court has not made
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`all requisite factual findings; thus, Plaintiff claims that the Court has denied Plaintiff the right to
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`appeal. Plaintiff is incorrect. The Court’s judgment and disposition of Plaintiff’s case are final
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`and subject to appellate review.13 In fact, Plaintiff has already filed an appeal.14 The Court’s
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`statement of uncontroverted facts in its December 1, 2023 Order, along with its legal reasoning
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`9 Fed. R. Civ. P. 52(a)(1).
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`10 Winkel v. Heimgartner, No. 14-3214-JTM, 2015 WL 5820965, at *1 (D. Kan. Oct. 5, 2015) (citing May
`v. Kansas, No. 13-3162-SAC, 2013 WL 6669093, at *1 (D. Kan. Dec. 18, 2013)).
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`11 Fed. R. Civ. P. 52(a)(3); see also Featherstone v. Barash, 345 F.2d 246, 249 n.3 (10th Cir. 1965).
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`12 See Parker v. Bd. of Pub. Utils. of Kansas City, No. 93-2262-GTV, 1994 WL 542130, at *1 (D. Kan.
`Sept. 14, 1994) (denying the plaintiff’s Rule 52 motion “because the Rule 52 requirements do not apply to the
`court’s grant of summary judgment.”); Stone v. Mukasey, No. 06-CV-00364, 2008 WL 5156441, at *2 n.4
`(explaining that the plaintiff’s motion was “not appropriate” under Rule 52 because the court had decided the case
`“on a motion for summary judgment pursuant to Rule 56, [and] did not make findings or conclusions.”).
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`13 See Doc. 252 (judgment).
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`14 Doc. 253 (notice of appeal).
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`Case 5:19-cv-03025-JAR Document 269 Filed 07/08/24 Page 4 of 11
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`in both the December 1, 2023 Order and the May 16, 2024 Order, are sufficient to aid the Tenth
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`Circuit in considering Plaintiff’s appeal. Thus, Plaintiff’s motion under Rule 52 is denied.
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`B.
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`Rule 59
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`Though Plaintiff moved for relief solely under Rule 52, Rule 52(b) provides that motions
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`for additional factual findings “may accompany a motion for a new trial under Rule 59.”15 This
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`Court has occasionally construed motions under Rule 52 as motions to alter or amend judgment
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`under Rule 59(e).16 Thus, out of an abundance of caution, the Court also considers Plaintiff’s
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`motion under Rule 59.
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`A motion to alter or amend under Fed. R. Civ. P. 59(e) gives the Court an opportunity “to
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`rectify its own mistakes in the period immediately following” a ruling.17 Such a motion may be
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`granted when “the court has misapprehended the facts, a party’s position, or the controlling
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`law.”18 The moving party must be able to establish: (1) an intervening change in the controlling
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`law; (2) the availability of new evidence that could not have been obtained previously through
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`the exercise of due diligence; or (3) the need to correct clear error or prevent manifest injustice.19
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`Motions to alter or amend are “not appropriate to revisit issues already addressed or advance
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`arguments that could have been raised in prior briefing.”20 Whether to grant a motion to
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`reconsider is left to the Court’s discretion.21
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`15 Fed. R. Civ. P. 52(b).
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`16 See May, 2013 WL 6669093, at *1; Winkel, 2015 WL 5820965, at *1.
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`17 Banister v. Davis, 590 U.S. 504, 508 (2020) (quoting White v. N.H. Dep’t of Emp. Sec., 455 U.S. 445,
`450 (1982)).
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`18 Nelson v. City of Albuquerque, 921 F.3d 925, 929 (10th Cir. 2019) (citing Servants of the Paraclete v.
`Does, 204 F.3d 1005, 1012 (10th Cir. 2000)).
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`19 Servants of the Paraclete, 204 F.3d at 1012.
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`20 Nelson, 921 F.3d at 929 (quoting Servants of the Paraclete, 204 F.3d at 1012).
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`21 Coffeyville Res. Ref. & Mktg., LLC v. Liberty Surplus Ins. Corp., 748 F. Supp. 2d 1261, 1264 (D. Kan.
`2010) (citing In re Motor Fuel Temp. Sales Pracs. Litig., 707 F. Supp. 2d 1145, 1166 (D. Kan. 2010)).
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`Case 5:19-cv-03025-JAR Document 269 Filed 07/08/24 Page 5 of 11
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`The Court already considered and denied Plaintiff’s motion for reconsideration under
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`Rule 59(e) as to Defendants Bascue, Lawson, Orebaugh, Welch, Newsome, Britt, Perkins, and
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`the FCHD.22 The Court will not entertain Plaintiff’s duplicate arguments as to the Court’s
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`granting of summary judgment for the above-listed Defendants.23 However, the Court did not
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`enter summary judgment for Defendant Dowdy until May 16, 2024; thus, Plaintiff’s instant
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`motion can be construed as seeking reconsideration of the Court’s entry of summary judgment
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`for Dowdy.
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`The Court finds that Plaintiff’s motion must be denied because it merely reiterates
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`arguments which the Court previously rejected. Plaintiff raises no new arguments against
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`granting summary judgment for Dowdy that he has not previously raised in his objection to the
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`entry of summary judgment for Dowdy. Therefore, even after construing Plaintiff’s motion
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`under Rule 59(e), Plaintiff’s motion must be denied because reconsideration is not warranted.
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`II. Motion for Relief from Judgment
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`Plaintiff moves for relief from the Court’s May 16, 2024 Order, which denied
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`reconsideration of its December 1, 2023 Order, and granted summary judgment for Dowdy.
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`However, many of Plaintiff’s arguments pertain to the Court’s December 1, 2023 Order; thus,
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`the Court construes Plaintiff’s motion as seeking relief from both Orders. In his motion, Plaintiff
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`asserts that FCJ Defendants have committed fraud upon the Court by manufacturing statements
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`from Dowdy, and permitting the Court to rely on the fraudulent statements. Plaintiff also
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`reiterates his arguments as to the appropriateness of summary judgment in favor of all
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`22 Doc. 251.
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`23 The Courts notes that Plaintiff’s motion to reconsider the Court’s granting of summary judgment for
`Bascue, Lawson, Orebaugh, Welch, Newsome, Britt, Perkins, and the FCHD is not timely because the Court granted
`summary judgment for Defendants on December 12, 2023. See Fed. R. Civ. P. 59(e) (noting that motions to alter or
`amend must be filed within 28 days of entry of judgment); Doc. 241.
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`Defendants, and duplicates many of his arguments from his motion for additional factual
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`findings. Defendants respond that Plaintiff’s motion merely attempts to rehash issues which
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`have already been raised and decided, on numerous occasions. The Court agrees with
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`Defendants.
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`In the Tenth Circuit, it is well-settled that “Rule 60(b) relief ‘is extraordinary and may
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`only be granted in exceptional circumstances.’”24 Fed. R. Civ. P. 60(b)(3) provides that “the
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`court may relieve a party or its legal representative from a final judgment, order, or proceeding
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`for . . . fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct
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`by an opposing party.” To obtain relief from judgment under Rule 60(b)(3), the moving party
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`“must, by adequate proof, clearly substantiate the claim of fraud, misconduct, or
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`misrepresentation.”25
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`Plaintiff presents no valid legal argument to warrant relief from the Court’s December 1,
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`2023, or May 16, 2024 Orders. Instead, Plaintiff merely rehashes arguments as to Dowdy’s
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`statements and Defendants’ reliance on said statements, all of which the Court has previously
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`addressed. Plaintiff offers no proof whatsoever to substantiate his claim of fraud. Therefore,
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`Plaintiff’s arguments are insufficient to warrant relief from judgment pursuant to Rule 60(b)(3),
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`and his motion must be denied.
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`24 Zurich North Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1289 (10th Cir. 2005) (quoting Servants of
`Paraclete, 204 F.3d at 1009).
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`25 Id. at 1290.
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`Case 5:19-cv-03025-JAR Document 269 Filed 07/08/24 Page 7 of 11
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`III. Motion for Leave to Proceed IFP on Appeal
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`A.
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`Legal Standard
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`Under 28 U.S.C. § 1915(a)(1), courts may authorize the commencement of a civil action,
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`“or [an] appeal therein, without prepayment of fees or security . . . by a person who submits an
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`affidavit that . . . the person is unable to pay such fees or give security.”26 When a party seeks to
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`appeal IFP, Rule 24 of the Federal Rules of Appellate Procedure directs that the party file a
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`motion for leave in the district court.27 That party must attach to the motion an affidavit that
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`“shows in the detail prescribed by Form 4 of the Appendix of Forms the party’s inability to pay
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`or to give security for fees and costs.”28
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`Form 4 of the Appendix of Forms requires a party to provide information regarding both
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`the party and their spouse’s: (1) income and the sources thereof; (2) employment history; (3) the
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`amount of cash available; (4) assets including homes and motor vehicles; (5) all money owed by
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`others; (6) individuals supported financially; (7) average monthly expenses; and (8) attorney’s
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`fees paid in connection with the case.29 Additionally, Rule 24 requires the party seeking to
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`appeal IFP to state the issues he intends to present on appeal.30
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`Under § 1915(a)(2), a prisoner seeking leave to appeal IFP from a civil judgment must
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`file a new motion in the district court attaching both the affidavit discussed above “and a
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`certified copy of the prisoner’s trust fund account statement for the six-month period
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`26 28 U.S.C. § 1915(a)(1).
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`27 Fed. R. App. P. 24(a)(1).
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`28 Fed. R. App. P. 24(a)(1)(A).
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`29 Fed. R. App. P. Form 4.
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`30 Fed. R. App. P. 24(a)(1)(C).
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`Case 5:19-cv-03025-JAR Document 269 Filed 07/08/24 Page 8 of 11
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`immediately prior to the filing of the notice of appeal. [This] must be done regardless of the
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`prisoner’s [IFP] status in the district court.”31 Furthermore,
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`if a prisoner . . . files an appeal in forma pauperis, the prisoner
`shall be required to pay the full amount of a filing fee. The Court
`shall assess, and when funds exist, collect, as a partial payment of
`any court fees required by law, an initial partial filing fee of 20
`percent the greater of—
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`(A)
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`(B)
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`the average monthly deposits to the prisoner’s account; or
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`the average monthly balance in the prisoner’s account for
`the 6-month period immediately preceding the filing of
`the . . . notice of appeal.32
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`After payment of the initial partial filing fee, the prisoner must make monthly payments of
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`twenty percent of the preceding month’s income credited to his account.33 “The agency having
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`custody of the prisoner shall forward payments from the prisoner’s account to the clerk of the
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`court each time the amount in the account exceeds $10 until the filing fees are paid.”34
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`“In no event shall a prisoner be prohibited from . . . appealing a civil . . . judgment for the
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`reason that the prisoner has no assets and no means by which the pay the initial partial filing
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`fee.”35 However, “[p]roceeding in forma pauperis in a civil case ‘is a privilege, not a right—
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`fundamental or otherwise.’”36 “The decision to grant or deny in forma pauperis status under
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`31 Boling-Bey v. U.S. Parole Comm’n, 559 F.3d 1149, 1153 (10th Cir. 2009) (citations omitted); see 28
`U.S.C. § 1915(a)(2).
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`32 28 U.S.C. § 1915(b)(1).
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`33 28 U.S.C. § 1915(b)(2).
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`34 Id.
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`35 28 U.S.C. § 1915(b)(4).
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`36 Barnett ex rel. Barnett v. N.W. Sch., No. 00-2499-KHV, 2000 WL 1909625, at *1 (D. Kan. Dec. 26,
`2000) (quoting White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998)).
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`section 1915 lies within the sound discretion of the trial court.”37 “This is especially true in civil
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`cases for damages wherein the courts should grant the privilege ‘sparingly.’”38
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`B.
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`Application
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`On June 13, 2024, Plaintiff filed a motion seeking leave to proceed IFP on appeal,
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`without prepayment of fees. In his motion, Plaintiff represents that he is capable of paying the
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`fees, but asserts that it would cause him hardship because he would have to spend all of his
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`savings. Plaintiff did not attach any proof of his finances.
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`Plaintiff’s motion for leave to appeal IFP must be denied39 because he failed to attach the
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`requisite affidavit and certified copy of his prisoner’s trust account statement. Plaintiff may file
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`another motion seeking leave to appeal IFP, if he complies with the requirements as described in
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`this Order. Therefore, Plaintiff’s motion to proceed IFP on appeal is denied without prejudice.
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`IV. Motion for Reimbursement of Funds
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`On June 18, 2024, Plaintiff filed a motion asking the Court to reimburse his sister for
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`mistakenly paying his filing and docketing fees. Plaintiff explains that he asked her to pay the
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`$5.00 filing fee on his behalf, believing that such payment was necessary to avoid dismissal, but
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`that the Clerk told his sister she could not make partial payments. Thus, Plaintiff’s sister
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`mistakenly paid the full $605.00 to avoid dismissal of his appeal. Plaintiff attached an exhibit
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`indicating that he has since requested that full payment be sent to the Court from his forced
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`37 Id. (first citing Cabrera v. Horgas, No. 98-4231, 1999 WL 241783, at *1 (10th Cir. Apr. 23, 1999); then
`citing Cross v. Gen. Motors Corp., 721 F.2d 1152, 1157 (8th Cir. 1983); and then citing Buggs v. Riverside Hosp.,
`No. 97-1088-WEB, 1997 WL 321289, at *1 (D. Kan. Apr. 9, 1997)).
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`38 Zhu v. Countrywide Realty Co., 148 F.Supp.2d 1154, 1156 (D. Kan. 2001) (citing Buggs, 1997 WL
`321289, at *8).
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`39 Typically, a motion for leave to proceed IFP would be rendered moot by the payment of the filing fees.
`See Golden v. Kaiser, 1 F. App’x 841, 841 n.1 (10th Cir. 2001). However, Plaintiff’s IFP motion has not been
`rendered moot because his sister paid the fees. And, as discussed below, the fees paid by Plaintiff’s sister will be
`refunded.
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`saving account, and requests that the Court accept his payment and refund his sister’s payment.
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`The Court has not yet received Plaintiff’s separate payment.
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`Despite the general policy against refunding filing fees,40 the Court finds that Plaintiff’s
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`sister’s payment should be refunded. Because Plaintiff’s motion for leave to proceed IFP was
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`pending, no payment of fees was required.41 Now that Plaintiff’s motion to proceed IFP has
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`been denied, the Court orders Plaintiff to either (1) pay the fees in full, or (2) file a motion to
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`proceed IFP that complies with the requirements set forth above. Plaintiff must either pay or file
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`a revised IFP motion no later than August 5, 2024.
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`Finally, on June 28, 2024, Plaintiff filed a letter asking the Court to clarify: (1) whether
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`he needs to seek leave to proceed IFP on appeal; (2) whether he needs to request a certificate of
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`appealability; (3) what his appellate case number is; and (4) who will rule on his motion to
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`proceed IFP.42 As set forth in the previous section, Plaintiff must seek leave in this Court to
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`proceed IFP on appeal, even though he was previously granted IFP status for his district court
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`proceedings. Plaintiff does not need a certificate of appealability to appeal this Court’s ruling on
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`his 42 U.S.C. § 1983 claims.43 Plaintiff’s appellate case number is 24-3072.44 And, as described
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`above, this Court will rule on any future motions for leave to proceed IFP on appeal.
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`40 See Queen v. United States, No. 05-3341-KHV, 2006 WL 3791321, at *1 (D. Kan. Dec. 22, 2006)
`(collecting cases).
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`41 The Court informs Plaintiff that the $605.00 docketing and filing fees go hand-in-hand. Plaintiff must
`either pay the full amount, or file a motion to proceed IFP. Plaintiff is not permitted to make partial payments, such
`as paying only the $5.00 docketing fee, unless he is granted IFP status.
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`42 See Doc. 268.
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`43 See Payton v. Kelly, No. 20-3257-SAC, 2021 WL 1817113, at *1 (D. Kan. May 6, 2021) (collecting
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`cases).
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`44 The alternative case number referenced by Plaintiff was listed on a form Order from the Tenth Circuit,
`which it sends to all pro se plaintiffs.
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`Case 5:19-cv-03025-JAR Document 269 Filed 07/08/24 Page 11 of 11
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`IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion for
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`Additional Factual Findings (Doc. 256) and Motion for Relief from Judgment (Doc. 259) are
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`denied. Plaintiff’s Motion for Leave to Proceed In Forma Pauperis on Appeal (Doc. 264) is
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`denied without prejudice.
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`IT IS FURTHER ORDERED BY THE COURT that Plaintiff’s Motion for
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`Reimbursement of Funds (Doc. 267) is granted. The Clerk shall promptly refund the filing fees
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`paid by Plaintiff’s sister to her original form of payment.
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`IT IS FURTHER ORDERED BY THE COURT that, no later than August 5, 2024,
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`Plaintiff shall either pay the filing fees in full or file a revised motion for leave to proceed in
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`forma pauperis.
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`IT IS SO ORDERED.
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`Dated: July 8, 2024
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`S/ Julie A. Robinson
`JULIE A. ROBINSON
`UNITED STATES DISTRICT JUDGE
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`11
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