Conley (ID 60437) v. McKune et al

Filing 84

ORDER ENTERED: Plaintiff's motion 69 for a preliminary injunction and restraining order, motion 78 for a preliminary injunction, motion 70 for appointment of counsel, and motion 83 for leave to file a second amended complaint are denied . The complaint 1 as first amended in response to the court's show cause order 68 is dismissed as stating no claim for relief. Signed by Senior District Judge Sam A. Crow on 3/27/2013. (Mailed to pro se party Anthony Dean Conley by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ANTHONY DEAN CONLEY,
Plaintiff,
v.

CASE NO. 11-3200-SAC

DAVID MCKUNE, et al.,
Defendants.

O R D E R
Plaintiff, a prisoner incarcerated in a Kansas correctional
facility, proceeds pro se and in forma pauperis on a complaint seeking
relief under 42 U.S.C. ' 1983.
are identified as:

The defendants named in the complaint

Kansas Department of Corrections Secretary Ray

Roberts; Kansas Governor Sam Brownback; Lansing Correctional Facility
(LCF) Warden David McKune; LCF Associate Wardens Kyle Deere and Rex
Pryor; LCF Correctional Officer Bryan; LCF Unit Team Manager Andrew
Parks; LCF M-Unit Counselor Joe Pantano; LCF Employee Brett Peterson;
Correct Care Solutions, LLC (CCS); CCS President and CEO Jerry Boyle;
CCS at LCF (CCS-LCF) Health Services Administrator Ellen Bartz; and
CCS-LCF Dentist Kent Murry.
After reviewing the complaint and the voluminous documents
plaintiff submitted thereafter, the court on August 23, 2012, allowed
plaintiff an opportunity to submit a proper first amended complaint
on a court approved form, and to cure identified deficiencies in order
to avoid summary dismissal of the complaint.
In response, plaintiff submitted a First Amended Complaint on
1

a court approved form as directed, but expanded his pleading to 65
pages to extensively reiterate allegations that defendants have
denied him necessary treatment and accommodations.

Plaintiff also

continued his practice of submitting supplemental material, often in
the form of copies of correspondence he mailed to various defendants
in this matter.
Pending Motions for Preliminary Injunctions
The court first addresses plaintiff’s two pending motions for
preliminary injunctive relief.
A

party

seeking

a

preliminary

injunction

or

temporary

restraining order may not rest on bare and conclusory allegations,
but instead must show by clear proof that:

(1) he will suffer

irreparable injury unless the relief is granted; (2) the threatened
harm outweighs any damage the relief sought would cause the opposing
parties; (3) the remedy, if granted, would not be adverse to the public
interest; and (4) there is a substantial likelihood that plaintiff
will prevail on the merits in this action.
F.3d 1245, 1251 (10th Cir.2010).

See Little v. Jones, 607

The Tenth Circuit has made it plain

that “because a preliminary injunction is an extraordinary remedy,
the right to relief must be clear and unequivocal.”

Beltronics USA,

Inc. v. Midwest Inventory Distribution, LLC, 562 F.3d 1067, 1070 (10th
Cir.2009)(quoting Greater Yellowstone Coalition v. Flowers, 321 F.3d
1250, 1256 (10th Cir.2003)).
Having reviewed plaintiff’s pending motions for a preliminary
injunction or temporary restraining order, the court finds no showing
is made to warrant the relief being sought.
In his first pending motion (Doc. 69), plaintiff seeks the
specific itemized relief requested in his original complaint as
2

amended

and

supplemented,

namely:

immediate

dental

cosmetic

restoration; medical marijuana and related items for his personal
possession; an iPod and shelf stereo with free uncensored downloaded
songs of his choice; pornographic heterosexual movies; and to be
transferred from maximum segregation to a single cell in a medium
security facility.

Plaintiff repeats arguments asserted in his

complaint as amended and supplemented, and broadly contends all
requested relief is essential to protect the life and safety of himself
and others.
However, for the reasons stated herein and in the show cause
entered on August 23, 2012, it is clear that plaintiff cannot
demonstrate a likelihood of prevailing on the merits of any of these
claims.

Plaintiff’s first pending motion for preliminary injunctive

relief is denied.
In his second pending motion (Doc. 78), plaintiff seeks a court
order addressing restraints on his access to electronic filing
(“e-filing”) of court documents during his segregated confinement at
LCF.

Plaintiff contends there is no adequate e-filing system for LCF

prisoners confined in segregation, and complains that legal mail and
documents for filing must be handed over unsecured and unsealed to
prison staff for mailing or e-filing.

The court finds no showing of

any untoward interference in plaintiff’s ability to file his documents
electronically is demonstrated by plaintiff or evident on the record.
The court also finds no showing of irreparable injury.
Nonetheless, the court denies this pending motion as moot because
plaintiff is now incarcerated in a different correctional facility.
Motion for Leave to Further Amend the Complaint
While still incarcerated at LCF, plaintiff submitted a Second
3

Amended Complaint.

The court liberally construes this pro se

pleading as encompassing a motion for leave to file a second amended
complaint,1 and denies that motion because allowing plaintiff to file
his proposed Second Amended Complaint would be futile.

See Forman

v. Davis, 371 U.S. 178, 182 (1962)(in determining whether to grant
leave to amend the court may consider such factors as the futility
of the proposed amendment); Lind v. Aetna Health, Inc., 466 F.3d 1195,
1199 (10th Cir.2006)("A proposed amendment is futile if the complaint,
as amended, would be subject to dismissal.")(internal quotation marks
and citation omitted).
The proposed Second Amended Complaint essentially duplicates the
content and eighteen “causes of action” set forth in plaintiff’s First
Amended Complaint.

While plaintiff proposes ten additional “causes

of action,” six simply advance Eighth Amendment arguments that
defendants failed to adequately diagnose his dental needs or to
adequately investigate the viability of plaintiff’s self-treatment
protocol

(Claims

19-24),

and

the

remaining

additional

claims

improperly exceed the scope of this action (Claims 25-28).2
1
See Fed.R.Civ.P. 15(b) which provides in relevant part that if a party is
not amending once as a matter of course as provided by Rule 15(a), a party may amend
its pleading only with leave of the court.
See also D.Kan. Rule 15.1 which further requires in part that “A party filing
a motion to amend or a motion for leave to file a pleading or other document that
may not be filed as a matter of right must: (1) set forth a concise statement of
the amendment or leave sought;[and](2)attach the proposed pleading or other
document.”
2
The court previously notified plaintiff that amendment of the complaint would
not be allowed to encompass allegations and claims beyond the alleged deliberate
indifference to plaintiff’s dental needs.
Nonetheless, the proposed Second Amended Complaint includes demands for
relief unrelated to plaintiff’s claims regarding the denial of specific dental
treatment. It also continues to advance plaintiff’s First Amendment claims of being
denied his right to freedom of expression by the denial of experimental treatment
that allows him to express himself (Claim 17), and that allows him to regain his
heterosexuality (Claim 18). And it continues to advance claims of being subjected
to cruel and unusual punishment by: failing to adequately address the health
consequences of plaintiff’s homosexual activities, or to stop this activity (Claim
25); failing to dismiss disciplinary actions that plaintiff contends resulted from

4

Additionally, plaintiff submitted his proposed Second Amended
Complaint to the court by mail, rather than e-filing the document as
required by court rules.3
First Amended Complaint Filed in Response to the Show Cause Order
In the show cause order entered on August 23, 2012, the court
found the complaint was subject to being summarily dismissed for the
following reasons.
First, the court explained that plaintiff’s claims for damages
against state defendants in their official capacities were barred by
the Eleventh Amendment.

Plaintiff eliminated this deficiency by

naming these defendants only in their individual capacities in his
First Amended Complaint.
Second, the court found no claim of constitutional significance
was presented for the purpose of proceeding under § 1983 by the alleged
violations of state statutes and prison regulations.

The First

Amended Complaint, however, reflects plaintiff’s continuing reliance
on alleged violations of Kansas prison regulations regarding medical
care and professional conduct as the basis for his claims of being
denied due process.

The court thus concludes the First Amended

his untreated dental and mental health conditions (Claim 26); failing to allow or
provide plaintiff with an electric razor (Claim 27); and not allowing plaintiff to
use mandatory and forced savings to pay for hygiene items (Claim 28).
3
See District of Kansas Standing Order 12.2 (requiring e-filing by prisoners
incarcerated in facilities designated as participating in the e-filing pilot
project).
Participation in the e-filing pilot project “is mandatory for all
prisoner litigants assigned to designated facilities, and all correspondence and
court filings in civil cases in the District of Kansas must be electronically
transmitted.” Id. LCF is designated by the Kansas Department of Corrections as
participating in the e-filing pilot project. Id.
Because plaintiff is now incarcerated in the El Dorado Correctional Facility,
which is not yet a designated e-filing facility, the court directed the clerk’s
office to accept and docket the proposed Second Amended Complaint instead of
returning that document to plaintiff for resubmission in compliance with court
rules.

5

Complaint fails to plausibly establish a liberty interest protected
by the Due Process Clause, and provides no legal basis for relief under
§ 1983.
Third, the court found plaintiff’s allegations were insufficient
to plausibly establish any personal participation by defendants
Brownback, Roberts, McKune, Deere, and Pyror.

Plaintiff’s First

Amended Complaint contains no new facts or arguments relevant to this
necessary showing, thus the court finds no claim for relief is stated
against these defendants.
Fourth, the court found no viable claim of being subjected to
cruel and unusual punishment was presented in plaintiff’s allegations
of being denied the specific comprehensive dental treatment plaintiff
believed was necessary to stabilize his mental health and to protect
his life and life of others.

In response, plaintiff identifies no

denial of prescribed care, and instead relies on his disagreement with
the dental procedures routinely provided prisoners.

Plaintiff’s

continued reliance on his subjective assessment of his dental needs
and the treatment required is misplaced.

The two-part test for

establishing an Eighth Amendment claim of deliberate indifference to
a serious dental need first requires an objective showing the alleged
deprivation was sufficiently serious.
294, 298 (1991).

Wilson v. Seiter, 501 U.S.

Plaintiff’s own assessment of his condition and the

treatment needed is not the proper basis for a constitutional claim.
Fifth, the court found plaintiff’s allegations were insufficient
to state a claim for relief against CCS, or any CCS employee including
CEO Boyle.

Plaintiff’s First Amended Complaint fails to identify any

new factual or legal basis for plausibly establishing a viable cause
of action against these defendants.
6

The court further notes that no

claim of constitutional significance is presented by plaintiff’s
reliance on alleged violations of CCS contract provisions for
providing medical care at the facility.
Conclusion
Accordingly, for the reasons stated herein and in the show cause
order dated August 23, 2012, the court concludes the First Amended
Complaint should be dismissed as stating no plausible claim upon which
relief can be granted under § 1983 against any named defendant.4
U.S.C. § 1915(e)(2)(B)(ii).

28

Plaintiff’s motion for appointment of

counsel is thereby rendered moot.
IT IS THEREFORE ORDERED that plaintiff’s motion for a preliminary
injunction and restraining order (Doc. 69), motion for a preliminary
injunction (Doc. 78), motion for appointment of counsel (Doc. 70) are
denied, and motion for leave to file a Second Amended Complaint (Doc.
83) are denied.
IT IS FURTHER ORDERED that the complaint (Doc. 1) as first amended
(Doc. 68) in response to the court’s show cause order, is dismissed
as stating no claim for relief.
IT IS SO ORDERED.
DATED:

This 27th day of March 2013 at Topeka, Kansas.

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

4

Dismissal of this action as stating no claim for relief constitutes a “strike”
under the 3-strike provision in 28 U.S.C. § 1915(g) if plaintiff files no appeal
or any appeal from the final order and judgment entered herein is affirmed no appeal.
Plaintiff is reminded that his litigation history in the District of Kansas already
contains
two
prior
“strikes.”
See
Conley
v.
McFarland,
Case
No.
02-3405-GTV)(complaint dismissed as frivolous); Conley v. Nunnelley, Case No.
98-3438-GTV(complaint dismissed as stating no claim for relief).

7