May 27, 2011
Jailhouse lawyer has a long, active career
By ANDREW BERGH
Special to the Journal
If jailhouse lawyers had a poster boy, Nathaniel
Ellibee could very well be their man.
First, some pertinent background.
In 1991, Ellibee and Jason Turner were U.S. Army soldiers stationed at
Fort Riley, Kansas. After concocting a crazy scheme to commit a robbery,
they commandeered a Humvee from the base and drove to a convenience
store in Geary County. Dressed in military battle gear with masks pulled
over their faces, they entered the store armed with loaded shotguns.
The only other person in the store was its clerk, 20-year-old Catherine
Heintze, who triggered a silent alarm switch. Tragically, the would-be
robbers saw her do so, and as they fled the scene, Turner fatally shot
the clerk with a shotgun blast.
Ellibee and Turner were later apprehended and charged with multiple
felonies, including murder and attempted robbery.
The evidence must've been overwhelming because both defendants pleaded
guilty and received lengthy prison sentences. (Ellibee got 21 years to
In an appeal to the Kansas Supreme Court, Turner argued that the
sentencing judge had imposed an unlawful sentence. In its opinion
denying the appeal, the high court observed how the day after the
incident, Turner “gave Ellibee the shell casing from the lethal bullet
to keep as a trophy or souvenir of the event.”
In the early 2000's, Ellibee filed several lawsuits as a “pro se”
litigant (i.e., he represented himself).
In an early suit, the convicted felon claimed that his constitutional
rights under the Fourteenth Amendment were violated by a mandatory
savings policy imposed by the Kansas prison system. Under the terms of
this policy, 10 percent of certain “incoming monies” must be held in a
savings account until the inmate's release from custody. In March 2004,
a Kansas appeal court affirmed the dismissal of Ellibee's claim.
In November 2003, Ellibee filed grievances that eventually led to
another civil rights suit.
The gist of his claim? That his First Amendment rights were violated
when a prison employee removed him from an “inmate law clerk” position
at the prison's law library, allegedly in retaliation for filing certain
grievances and giving legal assistance to other inmates. In April 2005,
the trial court's order denying Ellibee's motion for summary judgment
was affirmed by a Kansas appeal court. (Although it's unclear whether
Ellibee ultimately recovered any damages from this suit, he did get
reassigned to his law clerk position.)
In August 2005, Ellibee filed a complaint with the Kansas Department of
This time, the target was the vendor who contracted with the DOC to
provide meals to inmates. Ellibee, who professed to follow the Jewish
faith, said the vendor had violated the Kansas Consumer Protection Act
by denying him kosher food. In March 2007, a Kansas appeal court
affirmed the dismissal of this suit.
No, we aren't quite done.
In September 2007, Christopher Biggs, the original prosecutor in the
case, testified at Ellibee's parole hearing. Among other things, he told
the parole board how Ellibee had received the shell casing from Turner
as a souvenir of the crime. Biggs repeated this testimony in 2009 while
appearing before a subcommittee of the Kansas state legislature. Both
times, the prosecutor was quoting from the Kansas Supreme Court's
opinion in 1993 that had rejected Turner's appeal.
This didn't sit too well with Ellibee, who later sued Biggs for damages.
According to Ellibee, the sentencing judge had specifically found that
he didn't receive the shell casing as a souvenir. By lying about this
fact to the parole board and the legislative subcommittee, Biggs, among
many other things, had defamed him and committed the tort of outrage,
the suit claimed. Besides asserting — and I kid you not — that the
prosecutor had destroyed his reputation, Ellibee said Biggs' testimony
had “scuttled” his minimum security placement in prison and thwarted his
application for parole.
Ellibee suffered an early setback when the trial court granted the
prosecutor's motion to dismiss for failing to state a claim. Undaunted,
he filed another appeal.
But earlier this month, a Kansas appeal court slammed the door shut for
In the Sunflower State, the tort of outrage requires proof of “extreme
and outrageous conduct” that “exceeds the bounds of decency.” That
wasn't the case here, said the appeals court, because quoting a Kansas
Supreme Court opinion 16 years after its publication like Biggs had done
in no way rises to the level of extreme or outrageous conduct.
The appeals court also rejected Ellibee's characterization of the
alleged finding by the sentencing judge.
Although the lower court found that Turner had initially kept the shell
casing, that didn't rule out the possibility that he later gave it to
Ellibee as a souvenir. So since Ellibee couldn't prove that Biggs had
“communicated false words,” the appeals court ruled that his defamation
claim was properly dismissed.
Ellibee is reportedly up for parole again this September. Instead of
making any predictions, I will let the Kansas prison authorities decide
his fate. But if Ellibee is again denied parole, I have a sneaking
suspicion that he'll keep the courts in Kansas pretty busy.
By the way, did I tell you the outcome of Ellibee's suit against the
parole board members who denied his first parole request? Let me
research that and get back to you.
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