Lynn v. Werholtz et al

Filing 15

ORDER ENTERED: Plaintiff's requests for recusal and referral, and motion 12 to amend, are denied as improperly filed in this aborted case and as without basis; and the motion 12 for relief from orders and motion 13 to reopen judgment are denied because plaintiff has failed to allege grounds that entitle him to relief from judgment. Signed by Senior District Judge Sam A. Crow on 5/26/2011. (Mailed to pro se party Patrick C. Lynn by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

PATRICK C. LYNN,
Plaintiff,
v.

CASE NO.

10-3142-SAC

ROGER WERHOLTZ,
et al.,
Defendants.
O R D E R
Plaintiff, a three-strikes litigant, was denied leave to
proceed in forma pauperis (IFP) in this action.

The case was

dismissed after he failed to pay the filing fee up front and submit
his complaint on forms in the time allotted by the court.1

The

matter is now before the court upon plaintiff’s Motion for Relief
from Orders, Request for recusal of the undersigned judge with
referral to the Chief Judge, and Request to File Amended Complaint
(Doc. 12); and Motion to Reopen Judgment per Rule 60(b)(5)&(6)
(Doc. 13) with affidavit in support.
As plaintiff was previously advised, motions generally need
not be addressed in a case until the action has been properly
initiated through satisfaction of the statutory filing fee and the
submission of a complaint upon court-approved forms as required by
local

rule.

Plaintiff’s

current

motions,

other

than

for

1
Plaintiff’s allegation in this motion that he cannot possibly submit
the court-provided forms in the same-sized envelop in which he submitted his 14page complaint on the same-sized paper in this case is simply not credible.

reconsideration of the denial of his motion to proceed IFP, are not
now more appropriately before the court in this case, which is
closed

due

to

prerequisites.

plaintiff’s

failure

to

comply

with

filing

Thus, plaintiff’s motion for recusal and referral

to another judge need not be considered by the court unless this
case is reopened and the filing prerequisites are satisfied.

If

that happened, this motion would be denied for the reason that it
is based on nothing more than prior rulings of the undersigned
judge.

Similarly, plaintiff’s motion to file an amended complaint

will not be granted in this closed case in which a proper original
complaint was never filed, the fee has not been satisfied, and a
proper Motion to Amend with the proposed Amended Complaint attached
was not filed.
Plaintiff’s motions for relief from judgment and to reopen
are denied for the following reasons.

Such motions, when filed

more than 28 days after entry of judgment, are governed by Rule
60(b) of the Federal Rules of Civil Procedure.

Relief under Rule

60(b) is “extraordinary and may be granted only in exceptional
circumstances.”

Allender v. Raytheon Aircraft Co., 439 F.3d 1236,

1242 (10th Cir. 2006)(citations omitted); Bud Brooks Trucking, Inc.
v. Bill Hodges Trucking Co., 909 F.2d 1437, 1440 (10th Cir. 1990);
Amoco Oil Co. v. U.S.E.P.A., 231 F.3d 694, 697 (10th Cir. 2000).
Rule 60(b) does not permit a losing party to rehash or restate
arguments previously addressed or to present new legal theories or
supporting facts that could have been included in plaintiff’s
earlier filings.

Wilkins v. Packerware Corp., 238 F.R.D. 256, 263
2

(D. Kan. 2006)(citing Brown v. Presbyterian Healthcare Servs., 101
F.3d 1324, 1332 (10th Cir. 1996)), aff’d, 260 Fed.Appx. 98 (10th Cir.
2008); Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th
Cir. 2000))(A Rule 60(b) motion is not a vehicle to reargue the
merits of the underlying judgment, to advance new arguments which
could have been presented in the plaintiff’s original filings, or
as a substitute for appeal.).2
Plaintiff’s allegations and suggestions that a conditional
means of paying the filing fee could be arranged with funds from
his family are matters that could have been presented prior to
judgment, and thus are not grounds for reopening this lawsuit.

In

any event, Mr. Lynn still has not submitted funds for payment of
the fee.
Plaintiff’s allegations that it was impossible for him to
comply with this court’s orders herein due to limitations upon the
writing and mailing materials available to him could, and have,
been argued previously.

These allegations were found in his prior

cases to lack credibility by this court and the Tenth Circuit Court
of Appeals based upon the volume of materials Mr. Lynn has managed
to submit to this and other courts.

Filings by him in this court

over the past year likewise substantiate that he has the means
available

to

prepare

and

submit

numerous

written

pages,

particularly if he would limit his filings to non-frivolous claims.

2

The dismissal of this action was without prejudice, which means that
plaintiff is not precluded from attempting to raise his claims by submitting a
proper complaint as a new case. He did not pay and was not assessed a filing fee
in this case.

3

Mr. Lynn’s supporting Affidavit (Doc. 14) appears to be
intended to establish that he is under imminent danger of serious
physical injury and that the denial of his motion to proceed IFP
herein was therefore in error.

This affidavit and the allegations

therein are matters that could and should have been presented at
the time the complaint was filed.

Thus, these allegations are not

grounds for relief under Rule 60(b).

Furthermore, the allegations

in the affidavit regarding access, mail, grievances, and religious
materials do not involve physical danger.

Plaintiff’s allegations

regarding his confinement in “the shudder cells at EDCF” are more
material, but are too conclusory to establish that he was in
serious physical danger at the time he filed this complaint.

In

order for Mr. Lynn to have established that he was under imminent
danger of serious physical injury, he must have provided dates and
described the general nature of the physical danger he faced as
well as the involvement of specific defendants at the time he filed
this complaint.
Cir. 1998).

See White v. Colorado, 157 F.3d 1226, 1231 (10th

Mr. Lynn’s own allegations indicate he is regularly

rotated to different prisons and is often housed in the infirmary.
Thus, if EDCF is the only prison with “shudder cells” as he
alleges, then he is not continuously confined in a “shudder cell.”
Moreover, Mr. Lynn alleged in his most recent case that he is in a
cell with a window on the back wall. Plaintiff’s general claims of
continual conditions are often disaffirmed by his own more specific
allegations.
records

Furthermore, his own allegations, which KDOC on-line

confirm,

are

that

he

faces
4

years

of

confinement

in

disciplinary segregation as a result of his convictions of 200 to
300 disciplinary infractions.

It follows that his detention in

segregation under spare and discomforting conditions can hardly be
considered an unexpected incident of his confinement or as without
rational basis. In brief, plaintiff’s affidavit does not establish
that this court erred when it held that his complaint failed to
show he was in imminent danger of serious physical injury at the
time he filed this action. The court concludes that plaintiff does
not state grounds under Rule 60(b) that would entitle him to relief
from the judgment entered in this case.
The undersigned judge point outs that some of plaintiff’s
allegations in his post-judgment motion regarding conditions of his
confinement are disturbing, in that they could be viewed as
pleading a claim of cruel and unusual punishment had plaintiff
alleged additional facts including those regarding their duration.
However, in order to qualify a three-strikes litigant for IFP
status, even claims of cruel and unusual punishment must be coupled
with facts showing that actual, serious, physical danger from those
conditions is imminent at the time the complaint is filed.

For

example, claims of cruel and unusual conditions in the past do not
show imminent physical danger.
The court strongly urges Mr. Lynn that if he has additional
dates, circumstances, and other facts which, together with those
alleged in his post-judgment motions, could amount to a showing
that he is under imminent danger of serious physical injury, then
he should immediately present all such allegations in his only
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pending case, Lynn v. Roberts, Case No. 11-3073, in which he
challenges the same conditions of confinement and has a motion to
proceed IFP that is currently under consideration.
IT IS THEREFORE ORDERED that plaintiff’s Requests for
Recusal and Referral, and Motion to Amend (Doc. 12) are denied as
improperly filed in this aborted case and as without basis; and
that his Motion for Relief from Orders (Doc. 12) and Motion to
Reopen Judgment (Doc. 13) are denied because plaintiff has failed
to allege grounds that entitle him to relief from judgment.
IT IS SO ORDERED.
Dated this 26th day of May, 2011, at Topeka, Kansas.

s/Sam A. Crow
U. S. Senior District Judge

6