Golston (ID 40507) v. Bloomquist et al

Filing 7

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 2 to proceed without prepayment of fees is granted and he is assessed the full filing fee herein of $350.00 to be collected through payments automatically deducted from his institutional a ccount as funds become available. Plaintiff's motion 4 to appoint counsel is denied without prejudice. Plaintiff is granted thirty (30) days in which to file an Amended Complaint upon forms that cures the deficiencies in his original complai nt. The clerk shall docket plaintiff's submission entitled "Order to Show Cause" as of today's date as "Plaintiff's Second Supplement." Signed by Senior District Judge Sam A. Crow on 6/11/2012. (Mailed to pro se party Kenneth Golston by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KENNETH GOLSTON,
Plaintiff,
v.

CASE NO.

12-3046-SAC

CORRECT CARE
SOLUTIONS, et al.,
Defendants.
MEMORANDUM AND ORDER
This civil complaint, 42 U.S.C. § 1983,1 was filed pro se by an
inmate of the Lansing Correctional Facility, Lansing, Kansas (LCF).
Mr. Golston is given time to file an Amended Complaint that cures
the deficiencies found by the court upon screening and discussed
herein. If plaintiff fails to comply within the time allotted, this
action may be dismissed without further notice.

MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES
The statutory fee for filing a civil rights complaint is
$350.00.
Prepayment

Plaintiff has filed an Application to Proceed Without
of

Fees

(Doc.

2)

and

has

submitted

affidavit and financial records in support.

the

requisite

Where insufficient

funds exist for immediate payment of the full filing fee, the court
is required to assess and collect an initial partial filing fee.
U.S.C. § 1915(b)(1)(A) and (B).

1

However, where an inmate has no

Plaintiff’s bald reference to “Title II of the American Disability Act
Section 504” does not include facts showing discrimination against him by the
recipient of federal funding due to his disability or an explanation as to how
this court might otherwise have jurisdiction over his claims under this provision.
Barnes v. Gorman, 536 U.S. 181, 189 (2002). Accordingly, it is not considered as
a jurisdictional basis.

means by which to pay an initial partial filing fee, the prisoner
shall not be prohibited from bringing a civil action.
1915(b)(4).

28 U.S.C. §

Having considered the plaintiff’s financial records,

the court finds no initial partial filing fee may be imposed at this
time due to plaintiff’s limited resources, and grants plaintiff
leave to proceed without prepayment of fees.
However, plaintiff is reminded that he remains obligated to pay
the $350.00 court filing fee for this action, and that prison
officials are authorized to automatically deduct payments from his
inmate trust fund account when funds become available as authorized
by 28 U.S.C. § 1915(b)(2).2

DEFENDANTS, ALLEGATIONS, AND CLAIMS
Plaintiff

names

the

following

persons

at

the

Winfield

Correctional Facility (WCF) as defendants: Emmalee Cornover, Warden;
Ray Bloomquist, Mental Health Administrator; Jane Doe (1), Food
Administrator, Aramark; Tammy and Mary, Aramark Supervisors; and
John

Doe

(1),

Transporting

Officer

for

Kansas

Department

of

Corrections (KDOC).
He names the following persons at the Hutchinson Correctional
Facility (HCF) as defendants: Sam Cline, Warden; Utt, Deputy Warden;
Steve Schneider, Information Officer and Warden Designee; Ford,
Aramark Food Administrator; Beamis and Slague, Aramark Supervisors;

2

Pursuant to §1915(b)(2), the Finance Office of the facility where
plaintiff is confined is directed by copy of this Order to collect twenty percent
(20%) of the prior month’s income each time the amount in plaintiff’s account
exceeds ten dollars ($10.00) until the filing fee has been paid in full.
Plaintiff is directed to cooperate fully with his custodian in authorizing
disbursements to satisfy the filing fee, including but not limited to providing
any written authorization required by the custodian or any future custodian to
disburse funds from his account.

2

Nunetz, Disciplinary Board Hearing Officer; Shradder, Williams,
Moore, Hackney, Schneider, Dusseau, Mack, and Patton, Unit Team
Managers; Ki Anderson, Unit Team Counselor; Russell, Bruce, Foron,
Newkirk, and Mickle, Corrections Officers; Ward and Brown, Master
Sergeants ; and John Doe (2), Aramark Supervisor.

He names the

following medical staff at HCF as defendants: Dr. Bumgarner; Dr.
Moore, Correct Care Solution (CCS) Mental Health Department; Brice
Gilbert, Administrator, Mental Health Department for CCS; RN Debra
Lundry, Director of Nursing, CCS; RN Marie Stevens; Mrs. Miller,
Mental

Health

Counselor;

John

Coordinator; Mrs. Alexander,

Doe

(3),

Mental

Health

Parole

Mental Health Activity Therapist; and

Tonya, “Med Tech”.
Plaintiff

names

the

following

persons

at

the

Ellsworth

Correctional Facility (ECF) as defendants; Dan Schnurr, Warden; Jeff
Stone and Candita McNeal, Unit Team Counselors; Booher, Unit Team
Manager; Captain Donely; Krajewski, Parker, Wolf, and John Doe (4),
Corrections Officers; Eno and Parker, CSI Corrections Officers;
John/Jane Doe, Mailroom Clerk; and Osmond and Beaver, Disciplinary
Hearing Officers.

He names the following ECF medical staff: Dr.

McGawn; RN Susan Mehler, Health Service Administrator, CCS; RN Mable
Walker, Director of Nursing, CCS; Coatney, Mental Health Director,
CCS; DeMott, Mental Health Counselor, CCS; Nurse Dickerson, CCS;
Nurse T. Stone; Nurse Rush, CCS.
Plaintiff names the following persons at the Wichita Work
Release as defendants: Emmalee Cornover, Warden; Jane Doe (2),
Deputy Warden;

Jane Doe (3), Property Officer; and Jane Does (4 &

5), Aramark Supervisors.
Plaintiff

also

names

the

following
3

as

defendants

without

providing their location: Dr. Kepka, CCS; Larry Bearden, Regional
Manager, Aramark; Jerry Boyle, Regional Director, CCS for KDOC;
Evans; and Murry.
As Count I, plaintiff generally claims intentional infliction
of emotional distress, campaign of harassment, and denial of medical
care,

and

Amendment.

asserts
As

violation

Count

II,

he

of

his

rights

complains

of

under
his

the

Eighth

confinement

in

segregation and asserts violation of his due process and equal
protection rights.

As Count III, he claims denial of his right to

practice his religion in violation of the First Amendment. As Count
IV, he claims “Tort of negligence, abusive force.”

Mr. Golston

seeks “damages and injunctive relief.”

SCREENING
Because Mr. Golston is a prisoner suing government officials,
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),(b); 1915(e)(2)(B).

DISCUSSION
The court finds that the complaint is deficient in several
respects.

First,

complaint

violates

it

is

Rule

immediately
8(a)

of

the

obvious
Federal

that

plaintiff’s

Rules

of

Civil

Procedure, which provides in pertinent part that a complaint “must
contain:”

4

(1) a short and plain statement of the grounds for the
court’s jurisdiction . . . ;
(2) a short and plain statement of the claim showing that
the pleader is entitled to relief . . . .
A complaint with exhibits totally over 400 pages is not a short and
plain

statement.

Having

nevertheless

screened

the

voluminous

materials filed, the court finds that this action is subject to
dismissal for other reasons as well.

The complaint is replete with

claims and parties that are improperly joined.

In addition, the

allegations in the complaint fail to state a federal constitutional
claim.

Finally, some of plaintiff’s claims appear to be time-

barred.
1.

Improper Joinder

It is patently obvious from the myriad allegations in the
complaint and the lengthy list of defendants with their varying
locations that this pleading is replete with improperly joined
parties and claims.

The Federal Rules of Civil Procedure (FRCP)

apply to suits brought by prisoners.
607 (7th Cir. 2007).

George v. Smith, 507 F.3d 605,

The court may insist upon a prisoner’s

compliance with the rules.

See McNeil v. United States, 508 U.S.

106, 113 (1993)(federal rules apply to all litigants, including
prisoners lacking access to counsel).

FRCP Rule 18(a) governs

joinder of claims and pertinently provides: “A party asserting a
claim . . . may join, as independent or alternative claims, as many
claims as it has against an opposing party.” From this language, it
is clear that a plaintiff may bring multiple claims against a single
defendant under Rule 18(a).

However, it should also be clear that

“[u]nrelated claims against different defendants belong in different
suits.”

George, 507 F.3d at 607.
5

Under Rule 18(a), “multiple

claims

against

a

single

party

are

fine,

but

Claim

A

against

Defendant 1 should not be joined with unrelated Claim B against
Defendant 2.”

Id.

Allowance is more generous for claims than it is

for parties, given the rules allow a party to bring multiple
claims-related or not-against a single party in one action.

FRCP

Rule 18(a).
FRCP Rule 20(a)(2) governs permissive joinder of parties and
pertinently provides:
(2) Defendants. Persons . . . may be joined in one action
as defendants if: (A) any right to relief is asserted
against them jointly, severally, or in the alternative
with respect to or arising out of the same transaction,
occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants
will arise in the action.
Id.

Rule 20(a)(2) thus imposes two specific requirements for the

permissive joinder of defendants: (1) a right to relief must be
asserted against each defendant relating to or arising out of the
same

transaction

or

occurrence

or

series

of

transactions

or

occurrences; and (2) some question of law or fact common to all
parties must arise in the action.

See e.g., League to Save Lake

Tahoe v. Tahoe Regional Planning Agency, 558 F.2d 914, 917 (9th Cir.
1977)(citation omitted); see also DIRECTTV, Inc. v. Barrett, 220
F.R.D. 630, 631-32 (D.Kan. 2004)( citing 7 Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure §
1653), aff'd 249 Fed.Appx. 27 (10th Cir. 2007).

It follows that

under Rule 20(a)(2), a plaintiff may not bring multiple claims
against multiple parties in a single action unless the “statutory
nexus” is demonstrated with respect to all defendants named in the
action.

While joinder is encouraged for purposes of judicial

economy, the “Federal Rules do not contemplate joinder of different
6

actions against different parties which present entirely different
factual and legal issues.” Zhu v. Countrywide Realty Co., Inc., 160
F.Supp.2d 1210, 1225 (D.Kan. 2001)(citation omitted).
Requiring adherence in prisoner suits to the federal rules
regarding joinder of claims and parties prevents “the sort of morass
[a multiple claim, multiple defendant] suit produce[s].”
507 F.3d at 607.
obligations3

and

George,

It also prevents prisoners from “dodging” the fee
the

three

strikes

provisions4

of

the

Prison

Litigation Reform Act. Id. (FRCP Rule 18(a) ensures “that prisoners
pay the required filing fees--for the Prison Litigation Reform Act
limits to 3 the number of frivolous suits or appeals that any
prisoner may file without prepayment of the required fees.”).
This court has previously adopted the reasoning in George. See
e.g., McCormick v. Morrison, 2008 WL 4216115 (D.Kan. Sept. 12,
2008).

Applying that reasoning here, the court has no difficulty

determining that plaintiff’s complaint violates Rule 18(a) because
it contains numerous claims that are not related to numerous other
claims against different defendants. The court also determines that
the complaint violates Rule 20(a)(2) because it contains numerous
defendants who are not shown to be connected to all claims raised in
the complaint by a common occurrence and question of law.

For

3
28 U.S.C. § 1915(b)(1) and (2) pertinently provide: “[I]f a prisoner
brings a civil action or files an appeal in forma pauperis, the prisoner shall be
required to pay the full amount of a filing fee.” To that end, the court “shall
assess” an initial partial filing fee, when funds exist, and after payment of the
initial fee, the prisoner “shall be required to make monthly payments of 20
percent of the preceding month’s income credited to the prisoner’s account.” Id.
4
28 U.S.C. § 1915(g) provides: In no event shall a prisoner bring a
civil action or appeal a judgment in a civil action or proceeding under this
section if the prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court of the United
States that was dismissed on the grounds that it is frivolous, malicious, or fails
to state a claim upon which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.

7

example, Mr. Golston improperly attempts to litigate a claim based
upon an incident that occurred at the HCF and involved HCF employees
with another claim based upon an unrelated incident that occurred at
the LMHCF during a different time frame. Incidents that occurred at
different facilities are unrelated unless the two incidents were
caused by the same person or arose from the same transaction or set
of transactions.

Plaintiff's allegations do not suggest that the

incidents at different prisons described in his complaint are
sufficiently
defendant.

related

or

were

caused

by

the

same

individual

For another example, plaintiff improperly joins his

claims regarding disciplinary actions with his claims regarding
denial

of

medical

treatment

and

either

of

these

claims

are

improperly joined with his claims regarding mail handing, even if
the events occurred at the same institution.

Unless the same

defendant or defendants caused all three incidents, they are not
properly joined.

These

are only a very few examples of the

extensive misjoinder of claims in the complaint.

Plaintiff sets

forth numerous claims that do not arise out of the same transaction,
occurrence, or series of transactions or occurrences and that lack
a question of law or fact common to all defendants.
To

permit

plaintiff

unrelated

claims

litigated

in

against

separate

to

proceed

different

actions

would

in

this

single

defendants
allow

him

that
to

action on
should

avoid

assessed the filing fees required for separate actions.5

be

being

It would

5
Non-prisoner and prisoner litigants alike should not be allowed to
combine their unrelated claims against different defendants into a single lawsuit
simply to avoid paying another filing fee for a separate lawsuit. Every litigant
is required to responsibly weigh and individually bear, when possible, the costs
of his or her decision to pursue litigation of disputes in federal court.

8

also allow Mr. Golston, who has one prior strike,6 to circumvent the
three strikes provision set forth in 28 U.S.C. § 1915(g), since many
if not all his numerous claims appear to have no merit.

Frivolous

claims would clearly count as multiple “strikes” if they were raised
in separate lawsuits.

Multiple frivolous claims are not normally

treated as separate strikes when brought in a single case.
FRCP Rule 41(b) “has long been interpreted to permit courts to
dismiss actions sua sponte for a plaintiff’s failure to . . . comply
with the rules of civil procedure or the court’s orders. Nasious v.
Two Unknown B.I.C.E. Agents, at Araphone County Justice Center, 492
F.3d 1158, 1161 & n.2 (10th Cir. 2007)(“Rule 41(b) specifically
authorizes a district court to dismiss an action for failing to
comply with any aspect of the Federal Rules of Civil Procedure.”);
Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003).
Because plaintiff’s complaint is such a morass of unrelated
multiple claims and defendants, the court has no idea which claim or
claims should be severed and which properly joined claims the
plaintiff may wish to continue to pursue in this action.

Some

courts suggest that the entire complaint containing improperly
joined claims or parties should be dismissed, with the plaintiff
being given time to file another amended complaint.

However, the

court will give Mr. Golston the opportunity to file an Amended
Complaint, rather than dismissing this action at this time.7
6

See Golston v. McKune, No. 03-3392-GTV (July 29, 2004)(dismissed as
stating no claim for relief with plaintiff advised of § 1915(g)).
7

Mr. Golston is not prevented by this order from raising all his claims
in federal court. He may litigate any claims that are not properly joined in this
lawsuit by filing separate lawsuits, each of which may likewise only contain
claims and parties that are properly joined. The $350.00 fee must be paid for
each civil action filed. By these remarks, the court does not intend to encourage
Mr. Golston to file an Amended Complaint herein and then file the many separate

9

2.

Failure to State Claim

Apparently as support for all his counts, plaintiff lists over
1100 “facts” regarding numerous events that have aggravated him
throughout

his

confinement

in

various

state

facilities.

For

example, Mr. Golston complains of several unrelated disciplinary
actions on various grounds, denial of his request for a lower bunk,
the taking of his property including religious and art materials,
denial of medical treatment for an ear tube, denial of a free
partial dental plate, denial of crackers to take with medicine, his
fear that he was poisoned by a Med Tech and others, staff speaking
meanly to him, attempts to place him in a five-man cell and other
unwanted custody changes, improper opening of his official mail, and
failure to acknowledge his need for mental health treatment at the
same time that his other allegations indicate he has been provided
psychotropic medications and has refused or been removed from MH
treatment in the form of programs and classes.
portion of plaintiff’s myriad complaints.

This is but a small

These complaints are not

facially different from those raised by other inmates. However, the
allegations made in support of these claims differ from the norm in
that they generally indicate that Mr. Golston has precipitated his
own difficulties by making unreasonable demands or refusing to
follow reasonable rules or directives, and then has felt mistreated
or harassed without apparent justification.

He has filed numerous,

sometimes repetitive, grievances regarding many events and then

lawsuits it would take to present all the claims in his complaint that are not
properly joined herein. Instead, Mr. Golston is directed to carefully heed the
court’s additional findings regarding substantial deficiencies in all his claims.
If he files two more frivolous actions, he will be subject to the three-strikes
provision.

10

filed

additional

grievances.

His

grievances
own

regarding

exhibits

and

the

handling

allegations

show

of

his

that

his

grievances have often been denied on reasonable grounds, including
his

failure

to

follow

the

prison

grievance

procedures.8

His

allegations indicate his disagreement with the decisions of prison
staff, his frequent non-compliance, and his inability to cope with
criticism and other disciplinary measures,9 rather than a violation
of his federal constitutional rights by the named defendants.
Many of plaintiff’s other claims are unusual in that they are
based

upon

allegations

that

characterized as delusional.

the

court

believes

can

be

fairly

For example, Mr. Golston complains

that people are timing and counting his steps then cutting in front
of him; heavy set staff and inmates are walking around areas and
talking with “no slim” person in sight; he has noticed “strange
movement going on around him by staff” and inmates, which has caused
him to stop going to religious services and recreation; the lunch
line stops when he gets there; Aramark workers, nurses, and other
staff and inmates have been standing “with (their) buttocks facing
him” and bending over in front of him; one nurse always opens her
legs in front of him; women staff are flaunting their buttocks or
breast toward him, naked inmates have stood real close to him in the
showers to dry off; an inmate apparently humiliated him by farting

8

For example, plaintiff’s own exhibits of his grievances on denial of
crackers, a bottom bunk, and a free partial dental plate show that his requests
were considered and rational responses were provided that the items were not found
to be necessary.
They also show that grievances he improperly filed as
emergencies were denied.
9
He describes himself at various times as “ready to fight and get
violent,” mentally and emotionally devastated, tired of the sexual harassment by
staff and inmates, depressed, feeling he would attack someone, angry and ready to
take revenge on staff and inmates, very disruptive, screaming and cussing, and
argumentative.

11

behind him; carrots are being placed on top of his food as well as
in the water fountain he uses; and that all this evinces a pattern
of harassment against him. The events described by plaintiff do not
establish that he has actually been harassed by certain persons at
particular locations on specific dates. Instead, they indicate that
he merely “feels he was being harassed” and “feels” the MH staff and
administration were “behind all of these events.”

They may also

indicate, as one correctional officer suggested to him, that he is
exhibiting some paranoia regarding everyday events.

Plaintiff

acknowledges that all program classification reviews “mention his
mental health emotional and mental disability.”
In support of both his normal and unusual complaints, Mr.
Golston also often fails to provide crucial facts such as the dates,
locations, and names of each participant.

He similarly fails to

allege any facts in the body of his complaint showing the personal
participation of each named defendant in all the events that he
claims violated his constitutional rights.

Personal participation

is an essential element of a civil rights claim.
Some of plaintiff’s claims, like those involving denial of
medical care or religious materials, are little more than formulaic
recitations of constitutional violations.

The facts purported to

support these claims are simply not sufficient to state a claim of
federal constitutional violation.

For example plaintiff alleges

that

with

he

was

denied

applicators

his

suppositories

for

hemorrhoids, but also reveals that latex gloves were provided rather
than applicators because of a prior problem with the applicators.
In this instance, plaintiff’s allegations do not amount to facts
showing deliberate indifference that led to denial of necessary
12

medical treatment. His mere difference of opinion with decisions of
the

medical

violation.

staff

does

not

present

a

federal

constitutional

The court concludes that no set of facts in the 400

pages filed by plaintiff is sufficient to suggest that his federal
constitutional rights have been violated.

3.

Time Limitation

The court further finds that plaintiff raises claims in his
complaint that appear to be time-barred.
pursuant

to

42

U.S.C.

§

1983,

is

subject

“[An] action brought
to

the

statute

of

limitations of the general personal injury statute in the state
where the action arose.”
111,

120

(1979).

See United States v. Kubrick, 444 U.S.

K.S.A.

§

60-513(a)(4)

provides

a

two-year

limitations period for bringing an action “for injury to the rights
of another.”

This means that any claims in the complaint that

occurred more than two years prior to the date the complaint was
filed or executed, were not brought within the applicable time
limit.
The first 38 “facts” listed by plaintiff involve events that
occurred in 2009.

Facts 39-43 involve events in 2010 that took

place more than two years prior to the filing of the complaint.

Any

of the acts or events complained of in the complaint that occurred
more than two years prior to plaintiff’s execution of his complaint,
which was on February 3, 2012, are likely to be considered barred by
the statute of limitations unless plaintiff can show that he is
entitled to some exception to the statute of limitations.

If

plaintiff includes such claims in his Amended Complaint or a new
separate complaint, he will be required to show cause why they
13

should not be dismissed as time-barred.
F.3d

673,

674-75

(10th

Cir.

See Fratus v. Deland, 49

1995)(district

court

may

consider

affirmative defenses sua sponte when the defense is obvious from the
face of the complaint.).

MOTION TO APPOINT COUNSEL
Plaintiff has filed a Motion for Appointment of Counsel (Doc.
3). Having considered this motion, the court finds it should be
denied without prejudice. 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 whether to appoint counsel lies

in the court’s discretion.
(10th Cir. 1991).

Williams v. Meese, 926 F.2d 994, 996

The burden is on the applicant to convince the

court that there is sufficient merit to his claims to warrant the
appointment of counsel.” 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 have assisted [the prisoner] in presenting his
strongest possible case, [as] the same could be said in any case.”
Id. (citing Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir.
1995)).

In deciding whether to appoint counsel, the district court

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.

The court has considered the

relevant factors and concludes that plaintiff’s motion should be
denied at this juncture because it is not convinced that any of the
14

claims in the complaint has merit.

PROPOSED ORDER TREATED AS SECOND SUPPLEMENT
Plaintiff has submitted a document which appears on the top
page to be a proposed order for a show cause hearing as to why a
preliminary injunction should not issue.

However, he has attached

several pages of repetitive allegations and exhibits to it and
refers to it later as an affidavit as well as an order.
document was not filed as an order.

This

Plaintiff has not filed a

proper Motion for Preliminary Injunction.

Nor has he alleged

sufficient facts to establish the factors that would entitle him to
a preliminary injunction.

The clerk will be directed to file this

document as Plaintiff’s “Second Supplement.”

Plaintiff is advised

that he is not obligated to present evidence in any form until he is
required to prove his claims.
summarize,

or

refer

by

page

He will now need to reproduce,
number

to

any

exhibits

he

has

prematurely submitted in his two supplements if he relies upon them
in connection with his Amended Complaint.

PLAINTIFF ORDERED TO FILE AN AMENDED COMPLAINT
Plaintiff is given the opportunity to file an Amended Complaint
that cures the deficiencies discussed herein.

This means that his

Amended Complaint must not contain any claims that are improperly
joined or are time-barred. It also means that plaintiff must allege
additional

facts

in

his

Amended

Complaint

to

state

a

federal

constitutional violation and to show the personal participation of
each named defendant.
Plaintiff must submit his Amended Complaint upon forms provided
15

by the court.

He must write the number of this case, 12-3046, on

the first page of the Amended Complaint.
the forms to the best of his ability.

Plaintiff must complete
He may submit additional

pages only if necessary to answer all the questions on the form
complaint. However, the number of additional pages he may submit is
limited to 10.

The court can perceive of no need to submit

additional exhibits at this time. The court will screen the Amended
Complaint once it is filed.
An

Amended

Complaint

is

not

combined

complaint, but completely supercedes it.
Consequently,

plaintiff

may

not

simply

with

the

original

See Fed.R.Civ.P. Rule 15.
refer

to

his

original

complaint and instead must present all the properly joined claims
and factual allegations that he intends to pursue in this action in
his Amended Complaint.

Any claims or allegations in the original

complaint that are not presented in the Amended Complaint will not
be considered further by the court.

If plaintiff fails within the

time allotted to file an Amended Complaint that cures all the
deficiencies discussed herein, this action may be dismissed without
further notice.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff’s Motion to
Proceed Without Prepayment of Fees (Doc. 2) is granted, and he is
assessed the full filing fee herein of $350.00 to be collected
through

payments

automatically

deducted

from

his institutional

account as funds become available, as authorized by 28 U.S.C. §
1915(b)(2).
IT IS FURTHER ORDERED that plaintiff’s Motion to Appoint
Counsel (Doc. 4) is denied, without prejudice.

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IT IS FURTHER ORDERED that plaintiff is granted thirty (30)
days in which to file an Amended Complaint upon forms that cures the
deficiencies in his original complaint as discussed herein.
IT IS FURTHER ORDERED that the clerk shall docket plaintiff’s
submission entitled “Order to Show Cause” as of today’s date as
“Plaintiff’s Second Supplement.”10
The clerk is directed to send plaintiff § 1983 forms.
IT IS SO ORDERED.
Dated this 11th day of June, 2012, at Topeka, Kansas.

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

10
Upon initial receipt of this document, the court thought it was a
proposed order as entitled, which would not be filed unless and until the court
decided to utilize it. However, the content and attachments have been considered
by the court and are not limited to a proposed order. For these reasons this
document is now being filed as supplemental material.

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