McIntosh v. Messina et al

Filing 17

MEMORANDUM AND ORDER ENTERED: Plaintiff is given thirty (30) days in which to submit a "certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing&qu ot; of this action "obtained from the appropriate official of each prison at which the prisoner is or was confined." Within the same thirty-day period, plaintiff is required to submit an Amended Complaint upon court-approved forms that cur es the deficiencies set forth herein. Plaintiff's motion 9 to amend complaint is granted but only to the extent that plaintiff is required to file a complete and proper Amended Complaint as ordered herein; and plaintiff's other motions (Docs. 5-8 and 10-16) are denied. Signed by Senior District Judge Sam A. Crow on 4/24/2013. (Mailed to pro se party Rodney Othel McIntoshby regular mail.) (smnd).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

RODNEY OTHEL McINTOSH,
Plaintiff,
v.

CASE NO.

13-3048-SAC

FRED MESSINA, et al.,
Defendants.
MEMORANDUM AND ORDER
This pro se civil complaint was filed pursuant to 28 U.S.C. §
1331 by an inmate of the CCA, Leavenworth, Kansas.

Plaintiff claims

that he was assaulted by federal prison employees and was injured
and illegally confined as a result.

Having reviewed the materials

filed the court finds the pleadings are deficient in several ways.
Plaintiff is given time to cure those deficiencies.

If he fails to

do so within the prescribed time this action may be dismissed without
further notice.

FILING FEE
The statutory fee for filing a civil rights complaint is
$350.00.

Plaintiff has submitted an Application to Proceed without

Prepayment of Fees (Doc. 2).

He is reminded that under 28 U.S.C.

§ 1915(b)(1), being granted leave to proceed without prepayment of
fees does not relieve a plaintiff of the obligation to pay the full
1

amount of the filing fee.

Instead, it entitles him to pay the fee

over time through payments automatically deducted from his inmate
trust fund account as authorized by 28 U.S.C. § 1915(b)(2).1
In addition, 28 U.S.C. § 1915 requires that a prisoner seeking
to bring a civil action without prepayment of fees submit a “certified
copy

of

the

trust

fund

account

statement

(or

institutional

equivalent) for the prisoner for the 6-month period immediately
preceding the filing” of the action “obtained from the appropriate
official of each prison at which the prisoner is or was confined.”
28 U.S.C. § 1915(a)(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 to or average monthly
balance in the prisoner’s account for the six months immediately
preceding the date of filing of a civil action.
Plaintiff has not provided the financial information required
by federal law to support his application.

The data he does provide

is not in the form of a certified statement and includes transactions
for only 4 of the 6 months immediately preceding the filing of this
complaint.

It does not include running or monthly balances, and each

transaction is not plainly marked as either a deposit or a withdrawal.
However, it does appear that several deposits have been made to

1

Pursuant to § 1915(b)(2), the Finance Office of the facility where plaintiff
is currently confined will be authorized 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.

2

plaintiff’s account, which indicates that he will be assessed and
required to pay an initial partial filing fee once the court has the
information to calculate the appropriate amount.
This action may not proceed further until plaintiff has provided
the financial information required by federal law.

He will be given

time to provide the requisite information, and is forewarned that
if he fails to comply with the provisions of 28 U.S.C. § 1915 in the
time allotted, this action may be dismissed without further notice.

ALLEGATIONS AND CLAIMS
As the factual background for this lawsuit, plaintiff alleges
the following.

On October 27, 2010, plaintiff was assaulted outside

his cell in the USPL by defendant Officer Fred Messina.

Defendant

Messina asked plaintiff to step out of his cell so Messina could
conduct a cell search, and plaintiff complied.

Plaintiff saw

Messina toss his “Islamic relics and literature” onto the floor, and
asked Messina three or four times if he could pick up his Qu’ran and
prayer beads off the floor.

Messina told him to go away more than

once, then approached him outside his cell and commanded him to move.
Plaintiff put his papers down and started to walk away, but then saw
Messina “roughing through his property and stepping on his personal
items.”

Messina looked up as plaintiff turned to pick up his papers

and ordered him to go to the lieutenant’s office.

Messina then

hopped toward plaintiff with his fist balled up and starting jabbing
3

at plaintiff’s face.

Plaintiff avoided or counteracted the jabs,

and tried to hold off Messina and stay on his feet.

Messina ordered

plaintiff to stop resisting, continued to jab at him, and attempted
to trip, hold, and body slam him and grab his neck.

Messina called

for assistance by pressing the panic button on his radio, and “over
all available federal staff arrived.”
by Messina’s “cohorts.”

Plaintiff was then assaulted

His limbs were bent unnaturally, he was

struck by several pairs of hands, and an unknown employee threw jabs
at his face, which was also smashed against the concrete floor.
Ketchum grabbed plaintiff’s left harm hyperextending it and “they
roughly applied restraints.”
assault.

Plaintiff was nauseated from the

His body was pulled from the ground by his limbs, and “they”

bent his wrists while escorting him to the lieutenant’s office.
Plaintiff incurred multiple injuries including his “entire face was
smashed” by knees and hands and stepped on, and his back was knelt
upon by several staff causing severe pain.

Plaintiff was taken to

the Special Housing Unit (SHU) and was medically assessed.
Messina wrote an institutional violation
plaintiff with assaulting an employee.
criminally.

report

charging

Plaintiff was also charged

He was held in the SHU for 18 months.

During this time

in “the hole” plaintiff began taking psychotropic medications to
treat the mental illness he developed from being completely isolated.
On October 6, 2011, plaintiff was indicted by a federal Grand
Jury on nine counts of Assault of a Federal Employee in violation
4

of

18

U.S.C.

§

11-cr-20085-KHV-1.

111(a)(1).

U.S.

v.

McIntosh,

Case

No.

On April 13, 2012, he was transferred to the CCA.

On April 18, 2012, plaintiff completed the 48-month sentence he was
serving at the time of the assault.

The record of the criminal case

shows that a detention hearing was held on the new assault charges,
and bond was denied.

On December 12, 2012, Mr. McIntosh was

acquitted by a jury of assaulting Messina, but was found guilty of
the eight remaining counts in the indictment.

The record also shows

that sentencing in the case is currently set for May 2013.
Plaintiff

names

as

defendants

Fred

Messina

and

other

correctional officers Michael Newell, Earl Genter, Officer Ketchum,
and Keith Thomas.

He seeks six million dollars in actual and

punitive damages for personal injuries from the alleged beating and
for false imprisonment as well as for mental trauma.

SCREENING
Because Mr. McIntosh 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 upon which
relief may be granted, or seeks relief from a defendant immune from
such

relief.

28

U.S.C.

§

1915A(a)

1915(e)(2)(B).

STANDARDS
5

and

(b);

28

U.S.C.

§

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.”
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.”
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Bell

The court

accepts all well-pleaded allegations in the complaint as true.
Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006).

Still, “when

the allegations in a complaint, however true, could not raise a claim
of entitlement to relief,” dismissal is appropriate.
U.S.

at

558.

To

avoid

dismissal,

the

Twombly, 550

complaint’s

“factual

allegations must be enough to raise a right to relief above the
speculative level” and there must be “enough facts to state a claim
to relief that is plausible on its face.”
570.

Twombly, 550 U.S. at 555,

The Tenth Circuit Court of Appeals has explained “that, to

state a claim in federal court, a complaint must explain what each
defendant did to [the pro se plaintiff]; when the defendant did it;
how the defendant’s action harmed (the plaintiff); and, what specific
6

legal right the plaintiff believes the defendant violated.”

Nasious

v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Center,
492 F.3d 1158, 1163 (10th Cir. 2007).

DISCUSSION
Plaintiff submitted his complaint upon forms and an attached
pro se “civil complaint,” neither of which complies with local court
rules.

His claims appear to be of three different types.

he claims he was assaulted by federal prions employees.
claims that he was or is being falsely imprisoned.

First,

Second, he

Third, he claims

that he developed mental illnesses as a result of his isolation in
the SHU.
1.

Claim of Assault by federal prison employees

Plaintiff’s claim of assault is defective in several ways.
First, Mr. McIntosh has not asserted a jurisdictional basis for this
claim.

He has not utilized court-approved forms for a particular

federal action.

To proceed under 28 U.S.C. § 1331 he must assert

the violation of a federal constitutional right, which he has not
done.

He does not mention the Federal Tort Claims Act (FTCA), 28

U.S.C. § 2671, et seq.; and this court does not provide forms for
filing an FTCA complaint.

2

Moreover, it is not clear from

2

If plaintiff sues federal employees for damages for acts taken in their
official capacity he must proceed under the FTCA, and the United States is the
only proper defendant. Plaintiff does not indicate whether he is suing defendant
federal employees in their official or individual capacity. In addition, under
the FTCA, plaintiff must have completed the administrative claim process by

7

plaintiff’s allegations that he intends to or can establish diversity
jurisdiction under 28 U.S.C. § 1332.

The court is not free to

construct a legal theory on plaintiff’s behalf.

Accordingly,

plaintiff is required to file an Amended Complaint that clearly sets
forth the jurisdictional basis for this claim.
Second, plaintiff does not allege facts showing that he
exhausted all administrative remedies available within the Bureau
of Prisons (BOP) on this or any of his claims prior to filing this
lawsuit.3

When directed to give details regarding his use of BOP

administrative procedures including dates and results, he instead
refers to his criminal proceedings.

It thus appears from the face

of the complaint that Mr. McIntosh has not exhausted the BOP
administrative remedies on his claims.

He is required to show

exhaustion of administrative remedies in his Amended Complaint.

submitting his claim to the BOP prior to filing this lawsuit.
of the FTCA provides:

Section 2675(a)

An action shall not be instituted upon a claim against the United
States for money damages for injury or loss of property or personal
injury or death caused by the negligent or wrongful act or omission
of an employee of the government while acting within the scope of his
office or employment, unless the claimant shall have first presented
the claim to the appropriate Federal agency and his claim shall have
been fully denied by the agency in writing and sent by certified or
registered mail. . . .
3

The BOP provides a three-level Administrative Remedy Program for inmates
to obtain “review of an issue which relates to any aspect of their confinement.”
28 C.F.R. § 542.10. First, an inmate must attempt informally to resolve the issue
with institutional staff.
28 C.F.R. § 542.13(a).
If the concern is not
informally resolved, an inmate may file an appeal to the Warden. 28 C.F.R. §
542.14. Next, an inmate may appeal an adverse decision to the Regional Director.
28 C.F.R. § 542.15(a). Finally, the inmate may appeal to the BOP’s Central Office.
Id. No administrative remedy appeal is considered fully and finally exhausted
until it has been denied by the Central Office. Id.

8

Third, plaintiff does not allege facts showing the essential
element of personal participation on the part of each named defendant
in the October 2010 assault.

The only defendants referred to by name

in the complaint and whose acts during the assault are described are
Messina and Ketchum.

To state a claim against defendants Newell,

Genter, and Thomas, plaintiff is required in his Amended Complaint
to explain what each of these defendants did to him and when; how
that defendant’s action harmed him; and what specific legal right
plaintiff believes the defendant violated.
Fourth, it appears from the face of the complaint that
plaintiff’s claim for money damages based upon the alleged assault
by Messina is time-barred. 4

“[An] action brought pursuant to 42

U.S.C. § 1983, is subject to the statute of limitations of the general
personal injury statute in the state where the action arose.”
United States v. Kubrick, 444 U.S. 111, 120 (1979).

See

K.S.A. §

60-513(a)(4) provides a two-year limitations period for bringing an
action “for injury to the rights of another.”

Like an action brought

under § 1983, a Bivens action or a diversity action as a general matter
“is subject to the statute of limitations of the general personal
injury statute in the state where the action arose.”

4

Muhammed v.

This claim would have accrued on the date of the alleged assault and not
on the date that plaintiff was found not guilty of the assault charge that arose
from the same incident. See Wallace v. Kato, 549 U.S. 384 (2007)(A § 1983 claim
based on false imprisonment or illegal arrest accrues at the time of the issuance
of process or arraignment, not when the conviction was reversed by the state
court.).

9

Moore, 760 F.Supp. 869, 870 (D.Kan. 1991); Turner v. Schultz, 130
F.Supp.2d 1216, 1221 (D.Colo. 2001)(citing Industrial Constructors
Corp. v. United States Bureau of Reclamation, 15 F.3d 963, 968 (10th
Cir.

1994).

period.5

An FTCA complaint is subject to a similar limitations

In his Amended Complaint, plaintiff must show cause why

this claim should not be dismissed as time-barred.
Once plaintiff files an Amended Complaint, it will be screened
under 28 U.S.C. § 1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(B) again
and to determine whether or not he has cured these threshold
deficiencies.
2.

Claim of False Imprisonment

Plaintiff claims false imprisonment based on the following
allegations.

As a result of the assault on October 27, 2010, he was

indicted on October 6, 2011 by a federal Grand Jury for forcibly
assaulting Fred Messina.

On April 18, 2012, he completed the

48-month sentence he was serving at the time of the assault, but was
detained to face criminal charges of assault on a federal employee.
He was tried and acquitted of assaulting Messina on December 12, 2012.
Based on these allegations, plaintiff claims that he was falsely
5

The statute of limitations for an FTCA claim is set forth in 28 U.S.C. §
2401(b):
A tort claim against the United States shall be forever barred unless
it is presented in writing to the appropriate Federal agency within
two years after such claim accrues or unless action is begun within
six months after the date of mailing, by certified or registered mail,
of notice of final denial of the claim by the agency to which it was
presented.

10

imprisoned and seeks money damages.
Plaintiff’s own allegations and the record of his criminal
proceedings refute his false imprisonment claim.

His detention

after completion of his prior federal sentence was not due to the
charge of assaulting Officer Messina alone.

Instead, he was

detained on eight other charges and was found guilty of those charges.
His argument that he would not have been charged with the other eight
counts of assaulting various federal employees but for the assault
incident with Messina is refuted by the record in his criminal case,
which indicates that his assaults on other federal officers occurred
on various dates.

His argument that he is falsely imprisoned because

he would not have been in the hole where he committed the other
assaults were it not for Messina’s assault is specious at best.

The

court concludes that the facts alleged by plaintiff taken as true
utterly fail to state a claim of false imprisonment.6
3.

Claim Regarding Isolation

Plaintiff claims that he was totally isolated in the SHU at the
USPL for 18 months and as a result suffered “mental trauma,” developed

6

Plaintiff alleges that defendant Messina wrote an incident report against
him for assaulting a federal employee and that he was held in the SHU for 18 months
as a result. He further alleges that the charge was false, apparently relying
upon his acquittal of assaulting Messina in the criminal case. Plaintiff does
not state that he seeks damages in connection with the prison disciplinary
proceedings. Even if he did, he alleges no facts showing that he was denied due
process during those proceedings. Nor does he show that this disciplinary action
actually was overturned on administrative appeal or by a court. It follows that
his claim for money damages, if any, based on challenges to this disciplinary
proceeding is barred by Heck v. Humphrey, 512 U.S. 477, 487 (1994). Disciplinary
proceedings are not criminal proceedings, and the standard of proof is only “some
evidence,” rather than beyond a reasonable doubt.

11

mental illness, and began taking psychotropic medication.

Since his

transfer to the CCA, plaintiff is no longer in the SHU at the USPL.
He seeks money damages only.

He does not adequately describe

conditions that he was subjected to while in the SHU and show that
they were unconstitutional, i.e., that they amounted to an “atypical
and significant hardship” when compared to the ordinary incidents
of prison life.

Moreover, he does not allege that any named

defendant caused unconstitutional conditions in the SHU.

He may not

hold a defendant liable for conditions plaintiff suffered from while
in the SHU unless that individual personally participated in causing
those conditions.
Plaintiff is given time to file an Amended Complaint in which
he cures all the deficiencies discussed in this Memorandum and Order.
He must submit his complaint upon court-approved forms and write the
number of this case (13-3048-SAC) and “Amended Complaint” at the top
of the first page.

The Amended Complaint will completely supersede

the original complaint.

This means that plaintiff may not simply

refer back to his original complaint, and instead must include all
his claims and allegations in his Amended Complaint and fully answer
all questions therein.

It also means that once the Amended Complaint

is filed, the original complaint will no longer have any legal effect,
so that any claims or factual allegations not included in the Amended
Complaint will no longer be before the court.

Plaintiff is warned

that if he fails to comply within the prescribed time, this action
12

may be dismissed without further notice.

PENDING MOTIONS
With

his

complaint,

plaintiff

Appointment of Counsel (Doc. 5).

submitted

a

Motion

for

Having considered this motion, the

court finds it should be denied because there is no right to
appointment of counsel in this civil action and it appears highly
unlikely that this case will survive screening.
Subsequent to filing his complaint, plaintiff submitted 11
motions, which are mainly frivolous and abusive.

His duplicate

motion for appointment of counsel (Doc. 14) is denied for reasons
already stated.
The court has considered and denies plaintiff’s Motion for
Temporary Restraining Order (Doc. 6).

This motion is premised

partly upon plaintiff’s claim that he is currently confined due to
a

wrongful

conviction.

Any

claim

that

plaintiff’s

current

confinement is illegal may not be litigated in this civil rights
complaint.

Instead, all challenges to the convictions pursuant to

which he is currently confined must be presented to the trial court,
if still feasible, and on direct appeal in his criminal case. 7
Moreover, a claim for money damages based on challenges to the
convictions in his still-pending criminal case is clearly premature
under Heck.
7

The court notes that neither sentence nor a final

Plaintiff has similar motions currently pending in his criminal case.

13

judgment has been entered in plaintiff’s pending criminal case.
This motion is also based upon plaintiff’s conclusory allegations
that “the Federal Government” may seek revenge by murdering him or
attacking his family or property and his request for protective
custody.

He

alleges

no

allegations and request.

facts

whatsoever

to

support

these

Nor does he show that he has sought

protective custody through appropriate administrative procedures
within the prison.

Moreover, plaintiff utterly fails to allege

facts establishing the requisite elements for entitlement to a
temporary restraining order.

This motion is frivolous and abusive.

The court has considered plaintiff’s Motion for Injunctive
Relief (Doc. 7) and Motion for Immediate Release (Doc. 15), and denies
these motions.

In these motions, plaintiff seeks dismissal of all

counts in his criminal case, immediate release, and other improper
relief.

As already stated, plaintiff may not challenge his criminal

convictions in this civil complaint.

These motions are frivolous

and abusive.
The court has considered and denies plaintiff’s Motion for DNA
Testing (Doc. 8).

The court notes that he has filed a similar motion

in his criminal case.

No factual basis or legal authority is stated

that would entitle plaintiff to DNA testing in this civil case.

This

motion is frivolous and abusive.
The court has considered plaintiff’s Motion to Amend Complaint
(Doc. 9).

While plaintiff may amend his complaint once as a matter
14

of right, a complete Amended Complaint must be attached to the motion
that is submitted upon court-approved forms and that complies with
the Federal Rules of Civil Procedure regarding joinder of claims and
parties.

Plaintiff’s motion is granted; but only to the extent that

he is required to submit a complete and proper Amended Complaint.
The attachments to his motion are not accepted as his Amended
Complaint.

These attachments appear to be multiple complaints

against different persons based upon incidents that did not occur
at the same time.

It is not clear that all these claims and parties

may be properly joined in this single action. 8

Because these

attachments are not proper amendments, they will not be considered
further herein.

The court reiterates that plaintiff is barred by

Heck from suing for money damages based upon the assaults of which
he has been found guilty in his criminal case unless and until he
manages to have those convictions overturned; and that any claim that
those convictions are invalid must be raised on direct appeal and
not in this civil complaint.
The court has considered and denies plaintiff’s Motion to

8

Under “the controlling principle” in FRCP Rule 18(a), “[u]nrelated claims
against different defendants belong in different suits.” George v. Smith, 507
F.3d 605, 607 (7th Cir. 2007). Requiring adherence in prisoner suits to the federal
rules regarding joinder of parties and claims prevents “the sort of morass [a
multiple claim, multiple defendant] suit produce[s].” Id. It also prevents
prisoners from “dodging” the fee obligations and the three strikes provisions of
the Prison Litigation Reform Act. Id. (FRCP Rule 18(a) ensures “that prisoners
pay the required filing fees” for each action they file and that they are subject
to the Prison Litigation Reform Act’s limit of 3 frivolous suits or appeals that
a prisoner may file without prepayment of the required fees.). 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.

15

Appoint Master (Doc. 10).

No factual basis or legal authority is

presented that would entitle plaintiff to the requested action.
This motion is frivolous and abusive.
The court has considered and denies plaintiff’s “Motion for
Miscellaneous Relief” (Doc. 11).

9

The relief that plaintiff

actually seeks in this motion is not evident but appears to be his
attempt to state a jurisdictional basis for his claims.

He may not

sue federal employees under 42 U.S.C. § 1983, as they act under color
of federal rather than state law.

He must file a complete Amended

Complaint to add any claims or significant factual allegations.

He

has already been ordered to file an Amended Complaint in which he
is to set forth the jurisdictional basis for his claims.

This motion

is frivolous and abusive.
The court has considered plaintiff’s Motion for Miscellaneous
Relief (Doc. 12).

In this motion, plaintiff complains of denial of

access to “the legal computer” at CCA, and seeks to prevent the
medical department at the CCA from injecting him with a hypodermic
needle.

These claims are not shown to be related to the claims raised

in the initial complaint, and personal participation by each of the
named defendants in these events is not alleged.

Plaintiff may not

simply add claims by submitting a motion that is not a complete
Amended Complaint and, in any event, may not add every new complaint
9

Plaintiff must entitle a motion to reflect what court action he seeks in
the motion.
For example, motion for appointment of counsel and motion for
restraining order. His motions for miscellaneous relief are improper.

16

he perceives unless all his claims may be properly joined in a single
action under the Federal Rules of Civil Procedure.

The court is not

convinced that these claims can be properly joined in this action.
Claims that are not properly joined may only be raised by the filing
of a completely separate action for which plaintiff will be required
to pay the requisite filing fee.
and abusive.

This motion is denied as frivolous

Plaintiff’s Petition for Name Change (Doc. 13) is

denied for the same reasons, and because there is no showing that
the federal court would have jurisdiction over such a petition.
The court has considered and denies plaintiff’s Motion for
immediate release (Doc. 15).

The court repeats that plaintiff may

not challenge his criminal convictions in 11-20085-01-KHV by way of
this civil action.

Nor is an inmate entitled to release based upon

a claim of assault or excessive force.

This motion is frivolous and

abusive.
The court has considered and denies plaintiff’s Motion for
Miscellaneous Relief (Doc. 16) in which he seeks proof that summons
has issued in this case or the issuance of summons.

As noted, because

Mr. McIntosh is a prisoner, his complaint is subject to screening.
The court will not order issuance of summons until the screening
process is complete and only then if plaintiff’s claims have survived
the screening process.

This motion is unnecessary and frivolous.

Mr. McIntosh is directed to refrain from filing any additional
frivolous or abusive motions in this case.
17

The court finds that he

has impeded the processing of this case as well as the court’s
calendar by submitting numerous baseless motions.

Mr. McIntosh is

warned that if he continues to file frivolous motions, the court may
place restrictions upon his filing of motions in this case.
Plaintiff is to proceed herein by submitting his Amended
Complaint as ordered.
IT IS THEREFORE ORDERED that plaintiff is given thirty (30) days
in which to submit a “certified copy of the trust fund account
statement (or institutional equivalent) for the prisoner for the
6-month period immediately preceding the filing” of this action
“obtained from the appropriate official of each prison at which the
prisoner is or was confined.”
IT IS FURTHER ORDERED that within the same thirty-day period,
plaintiff

is

required

to

submit

an

Amended

Complaint

upon

court-approved forms that cures the deficiencies set forth herein.10
IT IS FURTHER ORDERED that plaintiff’s Motion to Amend Complaint
(Doc. 9) is granted but only to the extent that plaintiff is required
to file a complete and proper Amended Complaint as ordered herein;
and that plaintiff’s other motions (Docs. 5-8 and 10-16) are denied.
The clerk is directed to send plaintiff § 1331 complaint forms.
IT IS SO ORDERED.

10

Plaintiff may utilize the court’s § 1331 forms to file a complaint under
either § 1331 or the FTCA. To us them for an FTCA claim, he must name the United
States as the only defendant, clearly state that the complaint is brought under
the FTCA, and provide information, including dates and amounts, showing that he
has exhausted the FTCA administrative claim prerequisite.

18

Dated this 24th day of April, 2013, at Topeka, Kansas.

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

19