In 2002, he filed a civil rights action against these defendants in state court; but was dismissed for failure to pay costs. A 2005 civil rights action was also dismissed, for "failure to prosecute his case in an orderly and timely fashion..." While the 2005 case was still pending, Smith filed the current complaint, alleging events that happened between 1998 through 2002.
A sua sponte consideration of the issue of the timeliness of these claims made in 2007 resulted in the complaint being dismissed for failure to file within the applicable two-year statute of limitations period. After providing Smith with the opportunity to respond, the complaints dismissed were made with prejudice, preventing refiling.
On appeal, Smith argued that his motion to recuse the district judge for alleged misconduct should have been granted, and that the 2007 complaint was timely filed because it related back to the state action he filed in May of 2007 and/or the federal action filed in 2005. The appellate court agreed that the district judge did not have to recuse or abstain from proceeding, based upon the ruling in In re Mann, 229 F.3d 657, (7th Cir. 2000). The court also found that Rule 15(c)(1) of the Federal Rules of Civil Procedure did not apply as a relation back, because the last filing was not an amendment to a pleading, but a separate filing. Additionally, it could not apply the Kansas "saving Statute," which would spare from dismissal a complaint if the refiled case was brought within six months of the original dismissal.
Finally, the appellate court concluded that "Mr. Smith has waived any additional challenges to the district court's dismissal of his complaint by failing to adequately address them in his appellate brief." See: Smith v. Kansas Department of Corrections, 455 Fed.Appx. 841 (10th Cir. 2011) (unpublished).
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Related legal case
Smith v. Kansas Department of Corrections
|Cite||455 Fed.Appx. 841 (10th Cir. 2011) (unpublished)|
|Level||Court of Appeals|