Gerlt v. Maye et al

Filing 19

ORDER ENTERED: Plaintiff is granted thirty (30) days in which to submit to the court an initial partial filing fee of $8.50. Any objection to this order must be filed on or before the date payment is due. The failure to pay the fees as requir ed herein may result in dismissal of this action without prejudice. The following motions filed by plaintiff are denied: Motion 9 for temporary restraining order, motion 14 for preliminary injunction, motions 14 & 18 to appoint counsel, mot ion 15 requesting court order for preservation of evidence. Plaintiff's motion 16 to amend complaint is granted subject to his submitting a complete Second Amended Complaint upon forms provided by this court within thirty (30) days of the date of this order. Signed by Senior District Judge Sam A. Crow on 7/16/2013. (Mailed to pro se party Donald R. Gerlt by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DONALD R. GERLT,
Plaintiff,
v.

CASE NO.

12-3195-SAC

Warden Claude Maye,
et al.,
Defendants.
O R D E R
Plaintiff styled his initial pleading in this case as a petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2241 and filed it
in the Western District of Missouri.

That court transferred the

action here because Mr. Gerlt was confined within the District of
Kansas.

This court screened the initial pleading and found several

deficiencies

including

that

Mr.

Gerlt

was

complaining

about

conditions of his confinement, which are claims that may not be
litigated in a habeas corpus petition.

The court ordered plaintiff

to file an Amended Complaint upon court-provided forms and to satisfy
the prerequisites for the appropriate filing fee.

Since the court’s

screening order was entered, Mr. Gerlt has submitted his First
Amended Complaint (Doc. 7) and Motion for Leave to Proceed without
Prepayment of Fees (Doc. 8).

He also submitted two motions for

preliminary relief (Docs. 9, 14); two motions for appointment of

1

counsel (Docs. 14, 18), a letter complaining of a lack of access to
a law library and a copy machine 1 (Doc. 11) followed by a letter
stating he had managed to obtain and send copies (Doc. 12); Motion
Requesting Court Order for Preservation of Evidence (Doc. 15); and
Motion to Amend Complaint (Doc. 16).

Having considered these

materials, the court finds as follows.

ASSESSMENT OF INITIAL PARTIAL FILING FEE
This action proceeds as a civil complaint because plaintiff
challenges the conditions of his confinement.

At the time this

action was filed, the statutory fee for filing a civil complaint was
$350.00.

Plaintiff has filed a Motion for Leave to Proceed without

Prepayment of Fees (Doc. 8) and has attached an Inmate Account
Statement in support as statutorily mandated.

Under 28 U.S.C. §

1915(b)(1), a prisoner granted such leave is not relieved of the
obligation to pay the full fee for filing a 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
an

initial

partial

filing

fee

followed

by

payments

deducted

automatically from his inmate trust fund account as authorized by

1

Plaintiff has not filed a motion requesting court action as to these matters.
In any event, this court accepts hand-written copies. Furthermore, in order to
state a claim of a constitutional denial of access to the courts an inmate must
show that a non-frivolous case filed by him has actually been prejudiced.

2

28 U.S.C. § 1915(b)(2).2

Section 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

institutional

account

for

the

six-month

period

immediately preceding the date of filing of the civil action.

Having

examined the records of plaintiff’s account, the court finds the
average monthly deposit during the relevant time period was $44.29,
and the average monthly balance was $27.67.

The court therefore

assesses an initial partial filing fee of $ 8.50, 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 within the time provided by the court.

His

failure to comply may result in dismissal of this action without
further notice.

MOTION TO AMEND COMPLAINT
In the court’s screening order, plaintiff was ordered to file
an Amended Complaint that cured the numerous deficiencies discussed
therein.

He filed his First Amended Complaint (Doc. 7) pursuant to

28 U.S.C. § 1331 (Doc. 7) upon forms; however, it does not cure all
deficiencies.

The court declines to fully screen the First Amended

Complaint at this time because, as noted, plaintiff has filed another
2

Pursuant to § 1915(b)(2), the Finance Office of the facility where plaintiff
is currently confined is authorized to collect twenty percent (20%) of the prior
month’s income each time the amount in plaintiff’s institution account exceeds
ten dollars ($10.00) until the filing fee has been paid in full.

3

Motion to Amend Complaint (Doc. 16), in which he seeks to file a Second
Amended Complaint.

Plaintiff was informed in the court’s initial

order that an amended complaint must be submitted upon court-approved
forms and a complete copy of the amended complaint must be attached
to a motion to amend.

Plaintiff’s latest Motion to Amend does not

meet these directives.

He has not attached to this motion to amend

a complete Second Amended Complaint upon court-approved forms.

The

affidavit and exhibits he does attach do not comply with the court’s
prior directives or Rule 15 of the Federal Rules of Civil Procedure.
Plaintiff is given time to submit his “Second Amended Complaint” upon
court-approved forms.

Mr. Gerlt is warned again that his Second

Amended Complaint will completely supersede all prior complaints,
and as a result the original complaint and the First Amended Complaint
will no longer be before the court for consideration.

Therefore,

he must include all claims and all allegations he intends to present
in his Second Amended Complaint and any not included will not be
considered.

Plaintiff’s motion to amend is granted subject to his

submitting a complete Second Amended Complaint upon forms within the
time limit set by the court.

FAILURE TO STATE FACTS TO SUPPORT CLAIMS
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).
4

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.”
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).

A

pro se litigant’s “conclusory allegations without supporting factual
averments are insufficient to state a claim upon which relief can
be based.”

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

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

Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
In its screening order, the court found that plaintiff failed
to state facts to support his claims and that he had not named as
defendants the person or persons who actually caused him injury.

In

his Second Amended Complaint, Mr. Gerlt must name all defendants in
the caption as required by Rule 10 of the Federal Rules of Civil
Procedure.

If he is unable to name a particular defendant, he must

provide other descriptive or factual information regarding that
defendant that is sufficient to allow service of process.

As

plaintiff was previously informed, his allegations of ADA violations
were nothing but conclusory statements.

He must allege facts to

support his claims including that of “deliberate indifference” to
his “serious medical and rehabilitation needs.”

In addition, he

must show each defendant’s personal participation.

Therefore, in

his Second Amended Complaint he is required to refer to each defendant
in the caption and again in the body of his complaint, and in the
5

body describe the personal acts or inaction of each defendant showing
their personal participation in the alleged violation of his federal
constitutional rights.

He must also provide the date(s) and the

location(s) of each defendant’s unconstitutional acts.3
The clerk will be directed to send plaintiff forms for filing
his Second Amended Complaint and he must write that title and the
number of this case on the top of the first page.

Plaintiff is

directed to utilize the forms he receives from the clerk and to
carefully follow the accompanying directions.

Once plaintiff files

his Second Amended Complaint, the court will be required to screen
that complaint.

Plaintiff is cautioned that in his Second Amended

Complaint he must cure all deficiencies discussed herein and in the
court’s prior screening order.

EXHAUSTION OF ADMINISTRATIVE REMEDIES MUST BE SHOWN
3

An exhibit attached to a motion filed by plaintiff is a copy of a part of
a motion filed by him in his criminal case in the Western District of Missouri
and indicates the following factual background. See Doc. 14-1; USA v. Gerlt, Case
No. 09-cr-04017 (Doc. 174, filed June 18, 2012). On May 29, 2012, Mr. Gerlt was
sentenced in the Western District of Missouri to 48 months confinement in the
Federal Bureau of Prisons (BOP). Mr. Gerlt was at the time awaiting transfer to
the BOP and was housed in the custody of the U.S. Marshal at the CCA – Leavenworth
Detention Center. His attorney noted that the court was provided information and
made findings regarding Mr. Gerlt’s medical condition at sentencing.
He moved
that the court recommend to the BOP that it transfer Mr. Gerlt to a Federal Medical
Center “as speedily as possible.” Counsel stated that “while efforts have been
made to deal with Mr. Gerlt’s medical problems during his pretrial incarceration,”
Mr. Gerlt was in severe pain and required consultation with a specialist as well
as physical therapy to assist him with use of his recently reconstructed prosthesis
that were being delayed. In an affidavit dated December 3, 2012 (Doc. 14-1, Exhib.
D), plaintiff stated that he has been confined to a wheelchair since September
28, 2010, because he does not have a properly fitted prosthesis and that proper
fitting cannot occur “until further surgery is done.” He also stated that he has
“muscle and lung damage due to a gunshot wound that prevents him from using crutches
effectively.”

6

Furthermore, in plaintiff’s First Amended Complaint he states
only that he has filed BP-9 and BP-8 remedies.

Thus his complaint

together with his own exhibits indicate that he did not fully and
properly exhausted all available prison administrative remedies on
his claims prior to filing this action in federal court.

Plaintiff

was required by 42 U.S.C. § 1997(e)(a) to fully and properly exhaust
the available BOP administrative remedies including having filed a
BP-8, BP-9, BP-10 and BP-11 prior to filing this action in federal
court.

See Woodford v. Ngo, 548 U.S. 81, 84-85 (2006).

Because

failure to exhaust is apparent from the pleadings, the court requires
plaintiff to show in his Second Amended Complaint that he filed
grievances regarding each of his claims at every available step of
the BOP administrative remedies process and to provide copies or
summaries of his grievances as well as the administrative responses.

OTHER MOTIONS
The court has considered plaintiff’s motions for temporary
restraining order and preliminary injunction and denies these
motions.

Plaintiff has filed a Notice of Change of Address, which

indicates that he has been transferred to a federal prison outside
this judicial district.

It follows that his claims for injunctive

relief at the USP-Leavenworth as well as the Leavenworth Detention
Center are moot.
The court has considered plaintiff’s motions for appointment
7

of counsel and finds that they 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).

The decision whether to appoint

counsel in a civil matter 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 merit to his claim 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).
The court does not suggest that if plaintiff alleges sufficient facts
to show he was harmed by conditions that violate the Eighth Amendment
and that those conditions were caused by named defendants, he would
fail to state a claim under the Eighth Amendment.

On the other hand,

in order to proceed on a claim for money damages in federal court
at this time Mr. Gerlt must cure the significant deficiencies
explained in this and the court’s prior screening order.
no

special

legal

training

is

required

to

recount

Because

the

facts

surrounding an alleged injury, pro se litigants may be expected to
present sufficient
assistance.
1991).

facts

to state a claim

without any legal

See Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.

Considering the above circumstances, the Court concludes in

this case that (1) it is not clear at this juncture that plaintiff
has asserted a colorable claim for money damages against the
8

defendants, named and unnamed; (2) the issues are not complex; and
(3) plaintiff appears capable of adequately presenting facts and
arguments.

If this case progresses beyond screening and it becomes

apparent that appointed counsel is necessary, plaintiff may renew
this motion.
The court has considered plaintiff’s Motion Requesting Court
Order for Preservation of Evidence (Doc. 15) and finds it must be
denied.

In this motion, plaintiff lists several alleged conditions

such as black mold and sores and injuries on his body4 and requests
“photos and unbias (sic) witness.”

This request is too vague in that

plaintiff does not describe evidence that already exists together
with its location.

Instead, he appears to ask the court to find

photos of, and a witness to, his injuries and cell conditions and
then preserve that evidence.

Prior to seeking a court order

regarding existing evidence, plaintiff must make some effort to
obtain or preserve that evidence through available means including
prison administrative remedies.

Moreover, any discovery requests

must comply with the Federal Rules of Civil Procedure, and Rule 26(d)
expressly states that a “party may not seek discovery from any source
before the parties have conferred as required by Rule 26(f),” except
when otherwise authorized.

Rule 26(f) provides for a conference of

4

Any significant factual allegations or claims presented in this motion that
are different from those made in the complaint are not before the court unless
plaintiff presents them in his Second Amended Complaint. Plaintiff cannot add
claims by simply presenting them in a motion, and instead must present them in
a properly amended complaint.

9

the parties that includes the planning of discovery.
requests

for

discovery

at

this

juncture

defendants have not yet been served.

are

Furthermore,

premature

since

For these reasons, this motion

is denied without prejudice.
Plaintiff’s other filings are not actually motions.

His

letters regarding lack of access to a law library and copiers are
not in the form of motions.

In order to seek action by the court

in a pending case, plaintiff must file a separate document with the
caption and case number at the top of the first page together with
a title that reflects the action the court is being asked to take.
In addition, the movant must state facts in the motion showing his
entitlement to the requested relief.

A litigant may not request

court action by simply submitting correspondence.
IT IS THEREFORE ORDERED that plaintiff is granted thirty (30)
days in which to submit to the court an initial partial filing fee
of $ 8.50.

Any objection to this order must be filed on or before

the date payment is due.

The failure to pay the fees as required

herein may result in dismissal of this action without prejudice.
IT IS FURTHER ORDERED that the following motions filed by
plaintiff are denied: Motion for Temporary Restraining Order (Doc.
9), Motion for Preliminary Injunction (Doc. 14), Motions to Appoint
Counsel

(Docs.

14

&

18),

Motion

Requesting

Court

Order

for

Preservation of Evidence (Doc. 15).
IT IS FURTHER ORDERED that plaintiff’s Motion to Amend Complaint
10

(Doc. 16) is granted subject to his submitting a complete Second
Amended Complaint upon forms provided by this court within thirty
(30) days of the date of this Order.
The clerk is directed to send plaintiff § 1331 forms.
IT IS SO ORDERED.
Dated this 16th day of July, 2013, at Topeka, Kansas.

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

11