McCormick v. Roberts et al

Filing 30

MEMORANDUM AND ORDER granting 24 Motion to Dismiss Count VIII of Plaintiff's Amended Complaint. Signed by District Judge Monti L. Belot on 2/24/2012. (alm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DALE MCCORMICK,
Plaintiff,
v.
RAY ROBERTS, et al.,
Defendants.

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CIVIL ACTION
No.

11-3130-MLB

MEMORANDUM AND ORDER
This case comes before the court on defendants’ motion to
dismiss count eight of plaintiff’s amended complaint. (Doc. 24). The
motion has been fully briefed and is ripe for decision. (Docs. 25, 28,
29).

Defendants’ motion is granted for the reasons herein.

I.

Facts
Plaintiff is a prisoner confined in the Lansing Correctional

Facility (LCF).

On July 12, 2011, plaintiff filed his section 1983

complaint against Governor Sam Brownback, the State of Kansas, and
several employees at the prison.

Plaintiff’s allegations concerned

lead poisoning and asbestos contamination in the prison.

Plaintiff

asserted state tort claims as well as a violation of his Eighth
Amendment rights.

Judge Crow dismissed plaintiff’s claims against

Brownback and the State of Kansas for lack of personal participation.
Plaintiff filed his amended complaint against the remaining defendants
and again added Brownback and the State of Kansas.

(Doc. 23).

In addition to his prior claims, plaintiff added a habeas claim.
Plaintiff alleges that he was subject to a disciplinary proceeding
after a discovery of a paperclip in his legal paperwork.

The

disciplinary proceeding resulted in a loss of good time credit and a
fine of twenty dollars. Plaintiff alleges that he was wrongfully
denied the presentation of a defense to the charges against him in the
disciplinary proceeding.

Defendants move for dismissal of this claim

on the basis that a habeas claim cannot be brought pursuant to section
1983.

Plaintiff asserts that a habeas claim can be brought in the

same action as a 1983 claim.
II.

Motion to Dismiss Standards: FRCP 12(b)(6)
The standards this court must utilize upon a motion to dismiss

are well known. To withstand a motion to dismiss for failure to state
a claim, a complaint must contain enough allegations of fact to state
a claim to relief that is plausible on its face. Robbins v. Oklahoma,
519 F.3d 1242, 1247 (10th Cir. 2008) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974 (2007)).

All well-

pleaded facts and the reasonable inferences derived from those facts
are viewed in the light most favorable to plaintiff.

Archuleta v.

Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008). Conclusory allegations,
however, have no bearing upon this court’s consideration.
City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007).

Shero v.
In the

end, the issue is not whether plaintiff will ultimately prevail, but
whether he is entitled to offer evidence to support his claims.
Beedle v. Wilson, 422 F.3d 1059, 1063 (10th Cir. 2005).
III. Analysis
While plaintiff is correct that a section 2241 may be joined with
a section 1983 claim to save judicial resources and economy, see
Preiser v. Rodriguez, 411 U.S. 475, at 499 n. 14 (1973), a joinder of
these claims in this case is not proper under the rules.
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Plaintiff’s

habeas claim does not comply with the Federal Rules governing proper
joinder of claims and parties. Those rules, briefly summarized, allow
all claims to be filed in one complaint that are against a single
defendant.

However, in order to join a second or other defendants in

the same action, all claims against all named defendants must arise
from the same transaction or set of transactions.
P. Rules 18, 20.

See Fed. R. Civ.

In other words, a plaintiff may not file a single

action raising a myriad of unrelated claims against every person he
believes he has a claim against.

Plaintiff’s habeas claim and his

civil rights claims are totally unrelated.
Accordingly, the claim will be dismissed, without prejudice.
Additionally, the State of Kansas and Sam Brownback are dismissed, as
ordered by Judge Crow.

(Doc. 6).

Plaintiff is free to challenge the

loss of his good time credit by filing a complaint or complaints
pursuant to § 2241 on forms provided by the court.
IV.

Conclusion
Defendants’ motion to dismiss is therefore granted.

(Doc. 24).

Count 8 of the amended complaint is dismissed, without prejudice. The
clerk is instructed to attach the current form for section 2241
complaints to this order and mail it to plaintiff.
A motion for reconsideration of this order pursuant to this
court's Rule 7.3 is not encouraged.

Any such motion shall not exceed

three pages and shall strictly comply with the standards enunciated
by this court in Comeau v. Rupp.

The response to any motion for

reconsideration shall not exceed three pages.
filed.

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No reply shall be

IT IS SO ORDERED.
Dated this

24th

day of February 2012, at Wichita, Kansas.
s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE

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