Gillespie v. Zmuda et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BRADLEY GILLESPIE,
Plaintiff,
v. 	CASE NO. 26-1073-JWL
JEFF ZMUDA, et al.,
Defendant.
MEMORANDUM AND ORDER
Plaintiff filed this action under 42 U.S.C. § 1983 on March 3, 2026, in the District Court
of Butler County, Kansas. (Doc. 1–1.) The matter was removed to this Court on March 27, 2026,
pursuant to 28 U.S.C. §§ 1441 and 1446. 	(Doc. 1.) 	Plaintiff is incarcerated at the El Dorado
Correctional Facility in El Dorado, Kansas (“EDCF”). 	On April 1, 2026, the Court entered a
Memorandum and Order (Doc. 18) finding that this action is subject to the Court’s screening under
28 U.S.C. § 1915A, and staying the answer deadline pending the Court’s screening. This matter
is before the Court on Plaintiff’s response (Doc. 19), Motion for an Order and Remand (Doc. 20),
and Motion to Admit Evidence (Doc. 21).
In his response, Plaintiff claims he did not receive notice of the removal and asks the Court
to remand the case back to state court. (Doc. 19.) Plaintiff suggests that he filed the state action
based on the alleged violations of state statutes and regulations. Id. at 2. Plaintiff asks the Court
to sever the state law claims—Counts 6, 7, 8, 9, and 10— and remand them back to state court.
Id. at 3.
Plaintiff has also filed a Motion for an Order and Remand (Doc. 20) alleging that Defendant
Francisco Ayala is not represented by counsel that filed the notice of removal and therefore has
not agreed to removal as required by 28 U.S.C. § 1441. (Doc. 20, at 2.) Plaintiff also claims that
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he has not been served with any of the removal documents. 	Id. 	Plaintiff has filed a Motion to
Admit Evidence (Doc. 21) seeking to admit evidence in support of his allegation that he has not
been served with the removal documents. He claims that EDCF either held his mail or it was not
properly sent. Id. The Notice of Removal in this case was filed on March 27, 2026. The document
attached to Plaintiff’s motion reflects mail received by EDCF staff on April 13, 2026, and signed
for by Plaintiff on April 15, 2026. (Doc. 21–1.) The Court will grant Defendants an opportunity
to respond to Plaintiff’s response and motions.
Plaintiff’s claims in his complaint in this case are as follows: 	Count 1 – Supervisory
Liability; Count 2 – Supervisory Liability; Count 3 – Mail Censorship; Count 4 – Censorship of
GTL Messages and Pictures; Count 5 – Censorship of Publications; Count 6 – Property and Liberty
Interest in Wages; Count 7 – Clemency Interference; Count 8 – Denial of Access to the Courts
(Clemency); Count 9 – Property Liberty Interest (Books & Fundraiser Goods); and Count 10 –
Retaliation for Protected Activity. 	Plaintiff claims that Counts 6, 7, 8, 9, and 10 should be
remanded back to state court.
Defendants should respond and indicate if there are any federal claims in this case that are
not part of Plaintiff’s Amended Complaint in Case No. 25-3265. 	Plaintiff’s complaint in this
removed case raises claims based on censorship at EDCF. 	See Doc. 1–1, at 5–8. 	This claim
appears to be the same claim raised in Case No. 25-3265. Plaintiff also raises retaliation and court
access claims. The Court has ordered a Martinez Report in Case No. 25-3265 addressing the mail
censorship issues and Plaintiff’s retaliation claims. 	The complaint in this removed case also
appears to raise claims that the Court has either already dismissed in Case No. 25-3265 or that are
subject to dismissal in that case. Defendants should indicate if there are any federal claims that
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are either not raised in Case No. 25-3265 or that cannot be joined to the claims in Case No. 25-
3265.
“If a complaint filed in state court asserts federal-law claims, the defendant may remove
the case to federal court.” Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22, 25 (2025) (citing
28 U.S.C. § 1441(a)). “And if the complaint also asserts state-law claims arising out of the same
facts, the federal court may adjudicate those claims too, in the exercise of what is called
supplemental jurisdiction.” Id. (citing see § 1367). 	Under § 1367, supplemental jurisdiction “is
to some extent discretionary.” 	Id. at 27. 	A district court may decline to exercise supplemental
jurisdiction if it “has dismissed all claims over which it has original jurisdiction.” Id. at 32 (citing
28 U.S.C. § 1367(c)(3)). 	In that situation, “federal law is not where the real action is . . . [s]o
although supplemental jurisdiction persists, the district court need not exercise it: 	Instead, the
court may (and indeed, ordinarily should) kick the case to state court.” Id. (citing Mine Workers
v. Gibbs, 383 U.S. 715, 726–27 (1966)).
IT IS THEREFORE ORDERED BY THE COURT that Defendants are granted until
May 1, 2026, to respond to Plaintiff’s response and motions at Docs. 19, 20, and 21.
IT IS FURTHER ORDERED that Defendants are also granted until May 1, 2026, to
respond to this Memorandum and Order and to indicate if there are any federal claims in this case
that are either not raised in Case No. 25-3265 or that cannot be joined to the claims in Case No. 25-
3265.
IT IS SO ORDERED.
Dated April 16, 2026, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE
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