Meredith v. Roberts et al

Filing 6

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted thirty (30) days in which to submit to the court an initial partial filing fee of $3.00. Any objection to this order must be filed on or before the date payment is due. Within the same thirty -day period, plaintiff is required to file a complete Amended Complaint upon court-provided forms that cures the deficiencies discussed herein. Plaintiff's motion 3 for appointment of counsel is denied without prejudice. Plaintiff's motion 5 for leave to amend is granted to the extent discussed herein. Signed by Senior District Judge Sam A. Crow on 4/20/2012. (Mailed to pro se party Robert Meredith by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ROBERT MEREDITH,
Plaintiff,
v.

CASE NO.

12-3027-SAC

RAY ROBERTS, Secretary
of Corrections,
et al.,
Defendants.
MEMORANDUM AND ORDER
This civil complaint, 42 U.S.C. § 1983, was filed pro se by an
inmate of the Winfield Correctional Facility, Winfield, Kansas.
Plaintiff

has

also

filed

an

Application

to

Proceed

Without

Prepayment of Fees (Doc. 2), a Motion for Appointment of Counsel
(Doc. 3), a Supplement (Doc. 4), and a Motion for Leave to Amend his
Complaint (Doc. 5).

FILING FEE
The court has considered plaintiff’s Motion to Proceed Without
Prepayment of Fees and the attached Inmate Account Statement. Under
28 U.S.C. § 1915(b)(1), even if this motion is granted, Mr. Meredith
will not be relieved of the obligation to pay the full fee of
$350.00 for filing this civil action.

Instead, being granted such

leave merely entitles him to proceed without prepayment of the full
fee, and to pay the filing fee over time through payments deducted
automatically from his inmate trust fund account as authorized by 28
U.S.C. § 1915(b)(2).

Furthermore, § 1915(b)(1) requires the court

to assess an initial partial filing fee of twenty percent of the

greater of the average monthly deposits or average monthly balance
in the prisoner’s account for the six months immediately preceding
the date of filing of a civil action.

Having examined the records

of plaintiff’s account, the court finds the average monthly deposit
was $15.30, and the average monthly balance was $ 2.47.

The court

therefore assesses an initial partial filing fee of $ 3.00, twenty
percent of the average monthly deposit, rounded to the lower half
dollar.

Plaintiff must pay this initial partial filing fee before

this action may proceed further, and will be given time to submit
the assessed fee.

His failure to pay this part fee in the time

allotted may result in dismissal of this action without further
notice.

COMPLAINT NOT UPON FORMS
Plaintiff is required by court rule to submit his complaint on
a court-approved form.
him for that purpose.

D.Kan.Rule 9.1(a).

Forms will be sent to

The failure to comply with this requirement

in a timely manner may result in the complaint being dismissed
without prejudice and without further notice.

FACTUAL BACKGROUND AND ALLEGATIONS
As the factual background for his complaint, Mr. Meredith
alleges as follows.

On or about November 28, 2011, he received

“publications” in the mail from Acme Publication.

He was informed

in person that he could not have “certain items” that he had
received in the mail.

He asked why, and was informed by Sgt. Arnett

who was employed as A&D Property Supervisor, that some of the
publications were in violation of K.A.R. 44-12-313.
2

He told Arnett

he was going to file a grievance.

Arnett became angry and stated

that he was going to seize all the publications because plaintiff
was filing a grievance against him.

Defendant Arnett did not allow

plaintiff to receive “publication material” that he had been allowed
to receive from the same company for over 4 years.
Plaintiff filed “an appeal against Sgt. Arnett to the Policy
and Compliance Manager, Robbie Reynolds, Warden Emily Conover,
Secretary of Corrections Ray Roberts,” which was denied. The denial
by the Secretary of Corrections (SOC) was dated December 16, 2011,
which was the date his appeal was mailed out of the institution.
Plaintiff asserts that his rights under the First, Fourth, and
Eight Amendments were violated.

As factual support for Count I, he

alleges that defendant Arnett “became deliberate indifferent” when
he refused to allow plaintiff to receive all his publications.

He

further alleges that “under the Turner standard” defendant Arnett
“failed to abide by established procedures and standards” and
violated the First Amendment by failing to follow censorship rules
due to his personal anger.
acted

intentionally

and

Plaintiff alleges that defendant Arnett
maliciously,

“singled (plaintiff) out.”
alleges

that

defendants

abused

his

position,

and

As factual support for Count II, he
Conover,

Reynolds,

and

Roberts

were

supervisors over defendant Arnett and participated directly in the
violations because after they were informed of Arnett’s actions
“thru a report or appeal” they failed to remedy the wrong.

He

claims these defendants were grossly negligent in supervising their
subordinate Arnett “who commited (sic) the wrongful act.”
Plaintiff has attached several exhibits to his complaint.

The

second is entitled “WCF Notice of Action/Contraband/Censored Mail”
3

and dated November 28, 2011.
exhibit

shows

that

See Complaint (Doc. 1) Exh. 2.

materials

sent

to

Mr.

Meredith

by

This
Acme

Publication and received at the WCF on that date, were subject to
“return/destroy” for the reason: Sexually Explicit Material” under
K.A.R. 44-12-313.

Mr. Meredith was informed that he had 15 days to

protest the decision, and that all “protests shall be forwarded to
the Secretary of Corrections or the Secretary’s designee for final
review and disposition.”

Id.

At the bottom of this Notice “Protest

denied 12-16-11” is handwritten over an unintelligible signature.
Plaintiff also exhibits his “Appeal of Mail Censorship” dated
December 12, 2011, addressed to the Secretary of Corrections.
id., Exh. 1.
three

photos

Therein, he stated as follows.
and

one

photo

catalogue

See

On November 28, 2011,

were

seized

by

the

WCF

mailroom. The reason for the seizure was “supposedly” K.A.R. 44-12313 (Sexually Explicit Material).

On December 2, 2011, he received

a copy of the mail censor form from the mailroom.

He asked the SOC

to review the three photos and whole catalogue to determine if the
materials

were

properly

classified

under

K.A.R.

44-12-313,

to

overturn the censorship decision, and to order that the property be
given to him.
Plaintiff exhibits his grievances dated December 26 and 27,
2011, and January 9 and 10, 2012, in which he inquired about the
decision and the censored materials.

The responses include the

already noted handwritten response attached to the grievance dated
December 26, 2011.

Plaintiff was also given the alternatives of

sending the items out at his expense or their destruction and was
informed that the materials would not be held beyond December 30,
2011.

On January 12, 2012, plaintiff was informed that censored
4

material is viewed in its entirety, and that he had not met the
deadline to mail the items out so they were discarded.
4.

Id., Exhib

Plaintiff exhibits notices from Robbie Reynolds to him dated

December 2, 2011, that he had the right to appeal the decision to
the SOC and December 5, 2011, advising that he needed to write his
appeal and mail it directly to the SOC in Topeka.

Id., Exh. 5.

In

a notice dated December 16, 2011, Mr. Meredith was notified that his
appeal was processed and forwarded.

Id.

Plaintiff also attaches to his complaint numerous catalog and
magazine photos that he alleges he has been allowed to receive in
the prison mail, and claims that they are no different from the ones
being censored.
Plaintiff’s Supplement is a letter from Douglas W. Burris,
Corrections

Manager,

Risk

Management

dated

January

6,

2012.

Therein, Mr. Burris states that he reviewed the photos in question,
and they were found to be in violation of K.A.R. 44-12-313 on
12/16/11.

He stated, “There were several photos that violated the

rules about exposed buttock and female breast below the top of the
areola,” and that the “poses of the women and depiction of the
photos were clearly intended for sexual arousal or justification.”
Plaintiff seeks punitive damages and reimbursement for all
documents that “this facility has destroyed.” In addition, he seeks
injunctive relief in the form of removal of defendants Arnett and
Reynolds

from

the

decision-making

process

as

to

incoming

publications, the retraining of “all mail room personnel,” and a
“formal apology.”

SCREENING
5

Because Mr. Meredith is a prisoner, the court is required by
statute to screen his complaint and to dismiss the complaint or any
portion thereof that is frivolous, fails to state a claim on which
relief may be granted, or seeks relief from a defendant immune from
such

relief.

28

U.S.C.

§

1915A(a)

and

(b);

28

U.S.C.

§

1915(e)(2)(B). Having screened all materials filed, the court finds
the complaint is subject to being dismissed for reasons that follow.

PERSONAL PARTICIPATION OF SUPERVISORY DEFENDANTS NOT SHOWN
An

essential

element

of

a

civil

rights

claim

against an

individual is that person’s direct personal participation in the
acts or inactions upon which the complaint is based.

Trujillo v.

Williams, 465 F.3d 1210, 1227 (10th Cir. 2006)(A defendant’s direct
personal

responsibility

for

the

claimed

deprivation

of

a

constitutional right must be established); Mitchell v. Maynard, 80
F.3d 1433, 1441 (10th Cir. 1996); Olson v. Stotts, 9 F.3d 1475, 1477
(10th

Cir.

“plaintiff

1993)(affirming
failed

to

district

allege

court’s

personal

dismissal

participation

where
of

the

defendants”). A supervisor’s liability may not be predicated solely
upon a theory of respondeat superior.

Rizzo v. Goode, 423 U.S. 362,

371 (1976); Gagan v. Norton, 35 F.3d 1473, 1476 FN4 (10th Cir. 1994),
cert. denied, 513 U.S. 1183 (1995). “[T]he defendant’s role must be
more than one of abstract authority over individuals who actually
committed a constitutional violation.”
F.3d 1147, 1162 (10th Cir. 2008).

Fogarty v. Gallegos, 523
As the U.S. Supreme Court

recently explained in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct.
1937, 1948 (2009):

6

Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a
theory of respondeat superior.
(Citations omitted).
Because vicarious liability is inapplicable to . . . §
1983
suits,
a
plaintiff
must
plead
that
each
Government-official defendant, through the official’s own
individual actions, has violated the Constitution.
Id.

It is settled that denial of an administrative grievance does

not

constitute

“personal

participation”

in

the

denial

of

the

constitutional right, which occurred prior to the filing of the
Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir.

grievance.

2009)(“denial of a grievance, by itself without any connection to
the violation of constitutional rights alleged by plaintiff, does
not establish personal participation under § 1983.”)); Adams v.
Wiley,

398

plaintiff

Fed.Appx.

cannot

372

establish

(10th

Cir.

liability

2010)(unpublished).1

“A

under

by

§

1983

merely

‘show[ing] the defendant was in charge of other state actors who
actually committed the [constitutional] violation.

Instead, . . .

the plaintiff must establish a deliberate, intentional act by the
supervisor

to

violate

constitutional

rights.’”

Martinez

v.

Decesaro, 427 Fed.Appx. 660, 663 (10th Cir. 2011)(unpublished)(citing
Dodds v. Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010)(quoting
Serna v. Colo. Dep’t of Corr., 455 F.3d 1146, 1151 (10th Cir.
2006)).
Plaintiff’s allegations plainly indicate that the act of which
he

complains,

the

censorship

of

his

incoming

publications

November 28, 2011, was committed by defendant Sgt. Arnett.

on
His

allegations regarding the remaining defendants are insufficient to
hold them liable for this act of mail censorship.
1

Plaintiff will be

Unpublished opinions are not cited herein as binding precedent, but
for persuasive value. See Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.

7

given the opportunity to file an Amended Complaint in which he must
either

name

only

the

defendant

or

defendants

that

personally

participated in the censorship incident, or allege additional facts
showing the direct personal participation of all named defendants.

FAILURE TO STATE A CONSTITUTIONAL VIOLATION
Plaintiff’s assertion of a violation of rights under the Eighth
Amendment is not supported by any factual allegations, and is
therefore subject to being dismissed for failure to state a claim.
Generally, the Eighth Amendment “deliberate indifference” standard
is applicable to claims of denial of medical attention or excessive
force and other subjection to risk of harm.
Plaintiff’s claims are analyzed only as violations of his right
to receive information under the First Amendment and an illegal
seizure under the Fourth Amendment.
K.A.R. 44-12-601 governs mail procedures in KDOC institutions
and pertinently provides at (d)(Censorship grounds and procedures):
(1) Incoming or outgoing mail, other than legal, official,
or privileged mail, may be censored only when there is
reasonable belief in any of the following:
* * *
(E) The mail contains sexually explicit
material, as defined and proscribed by K.A.R.
44-12-313.
(2) If any communication to or from an inmate is censored,
all of the following requirements shall be met:
(A) Each inmate shall be given a written notice
of the censorship and the reason for the
censorship, without disclosing the censored
material.
(B) Each inmate shall be given the name and
address of the sender of incoming mail, if
known, or the addressee of outgoing mail and
8

the date the item was received in the mail
room.
Notice
of
the
censorship
of
correspondence by the facility shall be
provided to the sender, if known, by staff in
the facility's mail room within three business
days of the decision to censor.
(C) The author or addressee of the censored
correspondence shall have 15 business days from
the date of the notice of censorship to protest
that decision.
(D) All protests shall be forwarded to the
secretary of corrections or the secretary's
designee for final review and disposition.
(E) Each inmate shall have the option of having
censored correspondence or other materials in
their entirety either mailed out at the expense
of the inmate or discarded.
Id.

K.A.R. 44-12-313 provides in pertinent part:
Sexually explicit materials.
(a) No inmate shall have in possession or under control
any sexually explicit materials, including drawings,
paintings, writing, pictures, items, and devices.
(b) The material shall be considered sexually explicit if
the purpose of the material is sexual arousal or
gratification and the material meets either of the
following conditions:
(1) Contains nudity, which shall be defined as
the depiction or display of any state of
undress in which the human genitals, pubic
region, buttock, or female breast at a point
below the top of the aerola is less than
completely and opaquely covered . . . .

Id.
Plaintiff does not state a federal constitutional violation by
alleging that his materials were withheld as sexually explicit and
he

was

forced

to

dispose

subscribed, without more.

of

magazine

materials

to

which

As the Tenth Circuit has noted:

[S]uch restrictions are sufficiently commonplace in the
prison setting, see, e.g., Thornburgh, 490 U.S. at 415-19,
109 S.Ct. 1874 (upholding restrictions on prisoners'
incoming mail); Smith, 899 F.2d at 944 (complaint about
9

he

undelivered catalogues did not raise a constitutional
issue), that his claim is not plausible absent allegations
showing that the restrictions were imposed in violation of
prison regulations or that the regulations invoked were
unconstitutional in the circumstances.
Gee v. Pacheco, 627 F.3d 1178, 1190 (10th Cir. 2010).
Plaintiff does not specifically allege that he was denied
procedural due process as to his censored mail.

Nor does it appear

that he could, since his own exhibits show that he received written
notice with a statement of reason and was given the opportunity to
protest the censorship.

They also indicate that the censorship was

reviewed by someone other than the person who originally disapproved
the incoming mail.

His allegations regarding the time frame of the

decision at the SOC level do not establish a due process violation,
particularly in light of the exhibit he provides as a supplement,
which indicates that the SOC delegate had reviewed the censorship of
the pictures.
Nor

does

plaintiff

expressly

challenge

the

KDOC’s

mail

censorship regulation. In any event, this regulation was previously
reviewed thoroughly and upheld against constitutional challenge.
The Tenth Circuit reviewed claims similar to plaintiff’s in Strope
v. Collins, 315 Fed.Appx. 57, 59 (10th Cir. 2009)(unpublished).
Their discussion is instructive:
Kansas Administrative Regulation 44-12-313 provides that
no inmate within KDOC custody shall possess any “sexually
explicit materials,” which is defined in part as any
picture “contain[ing] nudity,” if its purpose is “sexual
arousal or gratification.”
R. Doc. 19-6 at 1.
As
relevant to this appeal, the regulation defines nudity as
“the depiction or display of any state of undress in which
the human . . . buttock . . . is less than completely and
opaquely covered.”
Id.
Enforcing this regulation,
defendants, all KDOC employees, withheld from Strope
various magazines to which he subscribed because they
contained images of scantily clad women revealing their
partially bare buttocks. In May 2006, Strope filed this
10

action under 42 U.S.C. § 1983, alleging violations of his
First Amendment right to receive information while in
prison. He claimed the regulation’s definition of nudity
was overly broad and that the regulation itself was
invalid because it served no valid penological purpose.
Id.

The Tenth Circuit found as follows:
The district court (found) the record insufficiently
developed on the issue of whether the challenged
regulation served a legitimate penological interest under
Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d
64 (1987).2
Responding to the court’s concerns, the
defendants submitted a second motion for summary judgment
on March 10, 2008, this time attaching an affidavit from
Roger Werholtz, Secretary of KDOC, who promulgated the
challenged
regulation.
Werholtz
testified
that
“depictions of nudity in any form generally tend to
disrupt the overall security of a correctional facility.”
R. Doc. 100-2 at 2. He specified such depictions can be
used to harass staff members and he noted male inmates, in
particular, who receive pictures of bare male buttocks are
at risk of violent homophobic attacks. Finally, Werholtz
claimed the regulation was a necessary tool in managing
and treating the sex offender inmate population.
* * *
On June 12, 2008, 2008 WL 2435560, the district court
issued an order granting the defendants’ second motion for
summary judgment and dismissing the case.
The court
acknowledged Strope’s First Amendment right to receive
information while in prison, but explained that he, as the
plaintiff, bore the burden of disproving the validity of
the regulation infringing that right.
After carefully
considering the record in light of Turner, it concluded he
had failed to do so. Most importantly, for purposes of
this appeal, the district court refused to invalidate the
2

The Tenth Circuit Court of Appeals instructed that:

In Turner, the Supreme Court held “when a prison regulation impinges
on inmates' constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests.” 482 U.S. at
89, 107 S.Ct. 2254.
It instructed lower courts to consider the
following factors in determining the validity of a challenged
regulation: (1) whether there is “a valid, rational connection
between the prison regulation and the legitimate governmental
interest put forward to justify it,” id. (quotation omitted); (2)
“whether there are alternative means of exercising the right that
remain open to prison inmates,” id. at 90, 107 S.Ct. 2254; (3) “the
impact accommodation of the asserted constitutional right will have
on guards and other inmates, and the allocation of prison resources
generally,” id.; and (4) whether there are ready alternatives to the
challenged regulation.
Id. fn. 3.

11

regulation simply because its definition of nudity banned
a broader range of materials than censorship regulations
at other facilities. And it concluded Strope failed to
identify any obvious, easy alternatives that would
accommodate his First Amendment rights at a de minimis
cost to the prison’s legitimate interest in institutional
security.
Here Strope argues primarily that the
regulation is unreasonable and its definition of nudity an
exaggerated response to prison concerns.
Id. at 59-60.

The KDOC regulation limiting sexually explicit

material was recently again upheld and found not to violate a
prisoner inmate’s First Amendment right to receive information in
Sperry v. Werholtz, 413 Fed.Appx. 31 (10th Cir. 2011).

In Sperry,

the Tenth Circuit ruled that this regulation prohibiting KDOC
inmates from possessing “sexually explicit material” was “reasonably
related to legitimate penological interests,” and therefore, did not
violate the plaintiff’s First Amendment right to receive information
while in prison, as such material tended to disrupt security at
correctional facilities, resulted in complaints from KDOC employees
having to review such material and increased potential for lawsuits
from such employees, promoted paraphilias and sexual deviance, and
increased the resources KDOC had to spend reviewing and censoring.
Id. at 32.

The court reasoned that the statement by defendant Roger

Werholtz, SOC, who had promulgated an amendment to this regulation,
was

based

on

his

many

years

of

experience

in

corrections

administration and established that the regulation was reasonably
related to legitimate penological interests.

Id. at 33.

The

regulation was thoroughly analyzed under all the Turner factors and
upheld.

Sperry, 413 Fed.Appx. At 40-42.

Mr. Meredith’s claim in this case amounts to one that the
censored materials were not “sexually explicit” as that term is
defined in the regulation.

In other words, he mainly claiming that
12

the administrative decision to censor the materials was arbitrary
and capricious. See Elliott v. Cummings, 49 Fed.Appx. 220, 221 (10th
Cir. 2002)(unpublished)(“As we understand his complaint, plaintiff
is not challenging the prison officials’ authority to censor and
exclude obscene materials from the prison,” but instead alleges
“that defendants have acted in an arbitrary and capricious manner in
censoring non-obscene publications” that were mailed to him.).
In support of this claim, Mr. Meredith alleges first that he
received similar materials for four previous years that were not
censored as “sexually explicit.”

Second, he attaches materials,

which he apparently claims are similar to those that were censored
and contends that they are not “sexually explicit.”3

The fact that

Mr. Meredith previously received similar materials that were not
censored does not establish that the materials he received on
November 28, 2011, were not “sexually explicit.”
having

viewed

plaintiff’s

exhibits

of

allegedly

Furthermore,
comparable

pictures,4 the court cannot say that a decision finding some of
those pictures containing partially bare buttocks to be “sexually
explicit” under the regulation was arbitrary and capricious.

In

3
Plaintiff baldly alleges that defendant Arnett did not follow
censorship procedures in that Arnett censored more materials that originally
intended because he was angry at plaintiff for saying he was going to file a
grievance. However, Mr. Meredith does not describe what materials he would have
received that were withheld solely due to Arnett’s anger. Nor does it appear that
he raised this claim in his administrative grievances. When it appears from the
face of a plaintiff’s materials that he has not exhausted administrative remedies
on a claim, the court may sua sponte question his failure to exhaust. Here, the
court finds that plaintiff has not alleged sufficient facts to present the claim
that Arnett censored materials that would not have been censored, “but for”
Arnett’s improper motive.
If plaintiff intends to challenge the censorship
decision based upon a claim of retaliation, then in his Amended Complaint he must
allege specific facts showing that the materials would not have been censored “but
for” the improper motive of defendant Arnett.
4
Generally, evidence of a plaintiff’s claim is not proffered until
trial or in response to a summary judgment motion, but the court is not prevented
from considering the evidence that is prematurely presented by plaintiff.

13

Elliott, the Tenth Circuit upheld the district court’s “sua sponte
dismissal” of a similar claim regarding magazine pictures under §
1915(e)(2)(B):
the district court entered a sua sponte order dismissing
plaintiff’s complaint under 28 U.S.C. § 1915(e)(2)(B).
(Section 1915 applied to the district court proceedings
because the court granted plaintiff's motion for leave to
proceed in forma pauperis.)
. . . [U]nder §
1915(e)(2)(B)(i), the court found that plaintiff's First
Amendment claims were frivolous.
The court based its
frivolousness determination on its review of the documents
attached to plaintiff's complaint.
According to the
court, “[t]he grievance responses show adequate and
reasonable bases for the decision to censor the materials
in question under the standards set out in [Kan. Admin.
Regs.] 44-12-313, and the complaint and attachments
provide
no
support
for
arbitrary
and
capricious
rule-making.”
Eliott, 49 Fed.Appx. At 223.
A court liberally construes a pro se complaint and applies
“less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).

However, the court

“will not supply additional factual allegations to round out a
plaintiff’s complaint or construct a legal theory on a plaintiff’s
behalf.”

To avoid dismissal, the complaint’s “factual allegations

must be enough to raise a right to relief above the speculative
level.”

Bell

Atlantic

(2007)(citation omitted).

Corp.

v.

Twombly,

550

U.S.

544,

555

Put another way, there must be “enough

facts to state a claim to relief that is plausible on its face.”
Id. at 570.

The court accepts all well-pleaded allegations in the

complaint as true and considers them in the light most favorable to
the nonmovant.

Anderson v. Blake, 469 F.3d 910, 913 (10th Cir.

2006). However, “when the allegations in a complaint, however true,
could not raise a claim of entitlement to relief,” dismissal is
appropriate.

Twombly, 550 U.S. at 558.
14

The complaint must offer

“more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action.”

Id. at 555.

The court finds that plaintiff does not allege sufficient facts
to

show

that

his

constitutional

rights

were

violated

by

the

censorship in question, and that his own exhibits indicate that his
claim is subject to dismissal as frivolous.
Plaintiff’s claims for injunctive relief including requests for
personnel action at the prison, are not supported by his factual
allegations, and in any event are not appropriate requests for court
order.

OTHER MOTIONS
The court has considered plaintiff’s Motion for Appointment of
Counsel (Doc. 3), and finds it should be denied.

There is no

constitutional right to appointment of counsel in a civil case.
Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989); Carper v.
Deland, 54 F.3d 613, 616 (10th Cir. 1995).

Instead, the decision as

to provision of counsel lies in the discretion of the district
court.

Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991).

The

burden is on the applicant to convince the court that there is
sufficient
counsel.”

merit

to

his

claim

to

warrant

the

appointment

of

Steffey v. Orman, 461 F.3d 1218, 1223 (10th Cir. 2006),

citing Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th
Cir.2004).

It is not enough “that having counsel appointed would

[assist the prisoner] in presenting his strongest possible case,
[as] the same could be said in any case.”

Steffey, 461 F.3d at

1223, citing Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir.
1995).

In deciding whether to appoint counsel, the district court
15

should consider “the merits of the prisoner’s claims, the nature and
complexity of the factual and legal issues, and the prisoner’s
ability to investigate the facts and present his claims.” Rucks, 57
F.3d at 979; Hill, 393 F.3d at 1115.

Having, considered these

factors, the court concludes in this case that (1) it is not clear
at this juncture that plaintiff has asserted a colorable claim; (2)
the issues are not complex; and (3) plaintiff appears capable of
adequately presenting facts and arguments.

Thus, the Court denies

plaintiff’s motion for appointed counsel, without prejudice.
Plaintiff has filed a Motion for Leave to Amend Complaint (Doc.
5).

Even though he cites Fed.R.Civ.P. Rule 15, he does not follow

its dictates.
of right.

A plaintiff may amend his complaint once as a matter

It follows that plaintiff did not need to file a motion

for leave to amend.
Complaint.

See

However, he did need to file a complete Amended

Fed.R.Civ.P.

Rule

15.

An

Amended

Complaint

completely supercedes the original complaint, and therefore must
contain all claims and name all parties that the plaintiff intends
to pursue in the action, including those raised in the original
complaint.

Any claims not included in the Amended Complaint shall

not be considered.

Plaintiff may not add either defendants or

claims to his original complaint by simply referring to them in a
motion for leave to amend.
Nevertheless, the court grants plaintiff’s motion for leave to
amend his complaint, for the reasons that he is being required to
file a complete Amended Complaint upon court-provided forms. In his
Amended Complaint, Mr. Meredith must cure the deficiencies discussed
herein.

He must write the case number of this action and the word

“Amended” on the first page of his new complaint.
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He may not simply

refer to his original complaint, but must fully complete and answer
all questions on the form complaint.

If Mr. Meredith fails to file

a complete Amended Complaint that cures the deficiencies found in
his original complaint within the time allotted, this action may be
dismissed without further notice.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff is granted
thirty (30) days in which to submit to the court an initial partial
filing fee of $ 3.00.

Any objection to this order must be filed on

or before the date payment is due.
IT IS FURTHER ORDERED that within the same thirty-day period
plaintiff is required to file a complete Amended Complaint upon
court-provided forms that cures the deficiencies discussed herein.
IT IS FURTHER ORDERED that plaintiff’s Motion for Appointment
of Counsel (Doc. 3) is denied, without prejudice; and his Motion for
Leave to Amend (Doc. 5) is granted to the extent discussed herein.
The clerk is directed to send plaintiff § 1983 forms.
IT IS SO ORDERED.
Dated this 20th day of April, 2012, at Topeka, Kansas.

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

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