Harvey v. Rohling et al

Filing 12

ORDER ENTERED: This action is dismissed and all relief is denied. Plaintiff's motion 5 to proceed without prepayment of fees is provisionally granted for the sole purpose of dismissing this action. Plaintiff's motions 4 & 8 to appoint counsel are denied as moot. Signed by Senior District Judge Sam A. Crow on 6/19/2012. (Mailed to pro se party Levi Lloyd Harvey by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

LEVI LLOYD HARVEY,
Plaintiff,
v.

CASE NO.

11-3137-SAC

KAREN ROHLILNG, Warden,
et al.,
Defendants.
O R D E R
This civil rights complaint, 42 U.S.C. ' 1983, was filed
pro se by plaintiff while he was an inmate of the Hutchinson
Correctional
2011,

the

Facility,

court

Hutchinson,

entered

a

Kansas.

Memorandum

On

and

Order

September
in

12,

which

it

discussed deficiencies it had found upon screening and directed
plaintiff

to

submit,

filing fee of $8.50.

within

thirty

days,

an

initial

partial

In addition, plaintiff was ordered to file

a response showing that prison administrative remedies had been
exhausted on each of his claims, and showing cause as to why
this action should not be dismissed for the reasons stated in
the Memorandum and Order.
Plaintiff

has

since

submitted

two

motions

for

appointment of counsel (Docs. 4 & 8), his motion to proceed
without

prepayment

documents

entitled

of

fees

AJury

upon

Trial

forms

Demanded

(Doc.

5),

Complaint

and
for

four
Money

Damages and Injunction@ (Docs. 6, 7, 9, & 10).
The first “complaint” submitted by plaintiff is a twopage document with 161 pages of exhibits (Doc. 6) and the third
includes 64 pages of exhibits (Doc. 9).

Having considered all

materials filed herein, the court finds that plaintiff failed to
comply with the orders of the court within the time prescribed
in that he failed to submit the assessed initial partial filing
fee or clearly object to its imposition, failed to show that
administrative

remedies

were

fully

and

properly

exhausted

on

each of his claims prior to his filing this lawsuit, and failed
to show cause why this action should not be dismissed for the
reasons stated in the screening order dated September 9, 2011,
including failure to state a federal constitutional claim.1
In its screening order the court, with great difficulty,
liberally

construed

plaintiff’s

claims

as

encompassing

three

categories: (1) exposure to asbestos, (2) mail mishandling, and
(3) prison disciplinary actions and reprisals.

The court found

that plaintiff alleged no facts regarding his personal exposure
to asbestos and sought no relief based on these allegations, but
offered the facts only as background for his other two claims.
The court further found that plaintiff’s allegations failed to
show

personal

participation

1

of

each

defendant

in

Furthermore, plaintiff’s First Amended Complaint is not a complete complaint (Doc. 6) that supersedes his
original complaint. Mr. Harvey did not seek and was not given leave to file three additional amended complaints.
Thus, technically, the only complaint properly before the court is plaintiff’s First Amended Complaint (Doc. 6),
which could be filed without leave of court, and which contains no specific facts whatsoever.

2

unconstitutional acts.

The court also found it apparent from

allegations in the complaint that Mr. Harvey had not fully and
properly exhausted administrative remedies prior to filing this
lawsuit.

He was given time to show that he properly followed

the three-step process for exhaustion on each of his claims.

In

addition, the court set forth why plaintiff’s allegations of
mail

mishandling

and

his

challenges

to

disciplinary

actions

including denial of good time awards failed to state a claim
under

§

1983.

The

court

further

noted

that

plaintiff

had

improperly joined some unrelated claims, and that other possible
claims were conclusory or not supported by sufficient factual
allegations.
Plaintiff’s second and third “complaints” (Docs. 6 & 7)
do

nothing

more

than

list

numerous

additional

defendants,

incorrectly state that they all acted “under color of federal”
as

well

as

state

law,

and

generally

allege

that

they

were

“responsible for adequate medical or mental health care or for
the supervision of such providers,” or for performing management
or

administrative

duties,

or

for

the

grievance

process.

Plaintiff’s third and fourth “complaints” (Docs. 9 & 10) also do
nothing but list additional numerous defendants with the same
general

language

regarding

responsibility.

The

defendants

listed in the latter two complaints also appear to be improperly
joined in this action.

3

Plaintiff
deficiencies

in

utterly
his

fails

original

to

complaint

defendants and very general statements.

adequately
with

these

address
lists

of

He does not describe

acts or omissions taken by each named defendant, provide the
date and location of those acts, and explain how they amounted
to a violation of his federal constitutional rights in light of
the

court’s

violations.

discussion

that

they

did

not

arise

to

such

Supervisory officials may not be held liable for

the acts of individual correctional officers or medical staff
based upon their supervisory capacity or their having affirmed
the denial of a grievance.
Plaintiff’s exhibits confirm that he received medical
attention

for

his

hernia

and

his

skin

condition.

Many

are

plainly irrelevant to his claims, and he still fails to explain
the

significance

neither

his

of

any

additional

particular

generic

exhibit.

allegations

Furthermore,

nor

his

exhibits

establish that he fully exhausted all his claims before he filed
this lawsuit, or that his federal constitutional rights were
violated.
The court concludes that this action must be dismissed
pursuant to 28 U.S.C. ' 1915A(a),(b) and 28 U.S.C. 1915(e)(2)(b)
for the reasons stated in this order and in its Memorandum and
Order

of

September

9,

2011.

This

strike under 28 U.S.C. § 1915(g).

4

dismissal

qualifies

as

a

IT IS THEREFORE BY THE COURT ORDERED that this action is
dismissed and all relief is denied.
IT IS FURTHER ORDERED that plaintiff’s Motion to Proceed
without Prepayment of Fees (Doc. 5) is provisionally granted for
the sole purpose of dismissing this action, and that plaintiff’s
Motions to Appoint Counsel (Docs. 4 & 8) are denied as moot.
IT IS SO ORDERED.
Dated this 19th day of June, 2012, at Topeka, Kansas.

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

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