Gross v. Kochinowski et al

Filing 5

MEMORANDUM AND ORDER ENTERED: This action may proceed only upon plaintiff's Eighth Amendment claim of denial of medical treatment. All other claims in the original complaint are dismissed without prejudice. This action is dismissed and all re lief is denied, without prejudice, as to the following defendants: Glen Kochinowski, Soldan, Shea, Sutton, Bett, Haaga, Reece, Wallace, Redmond, Brenda Herring, A. Jackson, Roehn, Black, Kindlesparger, Shiever and Tina Miller. Plaintiff is required to file a complete Amended Complaint upon court-provided forms and the Amended Complaint is to be limited to his claim of denial of medical treatment against defendant Beth Komarek. Signed by Senior District Judge Sam A. Crow on 2/7/2014. (Mailed to pro se party Glenn Douglas Gross by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GLENN DOUGLAS GROSS,
Plaintiff,
v.

CASE NO.

13-3197-SAC

GLEN KOCHINOWSKI, Sheriff,
Saline County, et al.,
Defendants.
MEMORANDUM AND ORDER
This pro se civil rights complaint was filed pursuant to 42
U.S.C. § 1983 by an inmate of the Saline County Jail, Salina,
Kansas.

The filing fees were paid in full.

On December 18,

2013, the court entered an Order screening the complaint and
finding deficiencies which were discussed therein.
was given time to cure the deficiencies.

Plaintiff

In response, plaintiff

has filed an “Addendum to Cause of Action.”

Having considered

this pleading, the court finds as follows.

PLAINTIFF REQUIRED TO FILE AMENDED COMPLAINT
In order to add claims, significant fact allegations, or to
change defendants, the plaintiff must submit a complete Amended
Complaint.

See Federal Rules Civil Procedure, Rule 15.

An

Amended Complaint is not filed by simply submitting an addendum

1

that adds allegations or claims and refers back to the original
complaint.
original

Instead,

complaint,

considered

by

and

the

an

Amended

the

court.

Complaint

original
It

supersedes

complaint

necessarily

is

follows

no

the

longer

that

the

Amended Complaint must contain all allegations and claims the
plaintiff intends to pursue in the action, including all those
to be retained from the original complaint.
claims

not

included

before the court.

in

the

Amended

Any allegations or

Complaint

are

no

longer

All defendants must be named in the caption

of the Amended Complaint and “et al” following the name of one
of multiple defendants is not sufficient.

Each defendant must

be referred to again in the body of the Amended Complaint along
with facts describing each defendant’s personal participation.
Mr. Gross is required to file an Amended Complaint.

He must

write the number of this case (13-3197) at the top of the first
page of his Amended Complaint.

The Amended Complaint must be

submitted upon court-approved forms.

NON-MEDICAL CLAIMS AND DEFENDANTS DISMISSED
In his Amended Complaint, Mr. Gross must present his claim
of denial of necessary medication and medical treatment only.
The other claims in his original complaint are hereby dismissed,
without prejudice, because they are not properly joined in a
single complaint with his medical claims against defendant Beth
2

Komarek.

Plaintiff’s claim of denial of bond release based on

acts taken by an unnamed female guard are not related to his
medical claims and are not based upon acts taken by defendant
Komarek.1

Likewise,

plaintiff’s

claims

that

he

has

been

subjected to excessive force and inhumane conditions2 other than
denial of medical treatment are unrelated to his medical claim
and do not allege involvement on the part of defendant Komarek.3
1

The court further finds that this claim still appears to be frivolous.
Plaintiff does not provide sufficient reason for his refusal to clean his
cell and does not show either that he was entitled to be bonded out on the
date in question or that he missed being bonded out through no fault of his
own.
Moreover, any claim that Mr. Gross was or is entitled to be released
from jail may only be raised in a habeas corpus petition and not in a civil
rights complaint.
2

The court is also not convinced by allegations in plaintiff’s addendum
that the denial of privileges or property and the incidents of force
complained about were other than legitimate attempts to control or punish
plaintiff’s disruptive behavior, or that any harsh conditions were of
sufficient duration. However, the court makes no determination on these nonmedical conditions claims in this lawsuit.
3

While joinder is encouraged for purposes of judicial economy, the
“Federal Rules do not contemplate joinder of different actions against
different parties. Zhu v. Countrywide Realty Co., Inc., 160 F.Supp.2d 1210,
1225 (D.Kan. 2001)(citation omitted).
Under “the controlling principle” in
Fed.R.Civ.P. 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. (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.”).
Fed.R.Civ.P. Rule 20(a)(2) governs
permissive joinder of defendants 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 18(a) governs joinder of claims and pertinently provides: “A party

3

Because all non-medical claims are dismissed, this action is
dismissed as against all defendants named herein that were not
involved

in

the

alleged

denial

of

medical

treatment.

Accordingly, this action is dismissed as against all defendants
other than Beth Komarek.
In order to proceed upon claims of excessive force and
other non-medical jail conditions, Mr. Gross will have to file a
separate lawsuit.4

He must follow the joinder rules in any other

lawsuit that he may file.

The allegations and claims in the

Addendum are not related to plaintiff’s medical claims and are
no longer relevant.

Accordingly, they will not be considered

further in this action.5
IT IS THEREFORE ORDERED that this action may proceed only
upon plaintiff’s Eighth Amendment claim of denial of medical
treatment, and that all other claims in the original complaint
are dismissed, without prejudice.
IT IS FURTHER ORDERED that this action is dismissed and all

asserting a claim . . . may join, as independent or alternative claims, as
many claims as it has against an opposing party.”
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.
4

If on the other hand Mr. Gross should decide to proceed on his
excessive force claims in this action for which he has already paid the
filing fee, he must omit his medical claims from his Amended Complaint and
otherwise comply with the rules of joinder.
5

If he files a separate lawsuit on these claims, he must include in any
new complaint the facts and allegations, including dates and names of
participants, that he has included to some extent in his Addendum.

4

relief is denied, without prejudice, as against the following
defendants: Glen Kochinowski, Soldan, Shea, Sutton, Bett, Haaga,
Reece,

Wallace,

Redmond,

Brenda

Herring,

A.

Jackson,

Roehn,

Black, Kindlesparger, Shiever, and Tina Miller.
IT IS FURTHER ORDERED that plaintiff is required to file a
complete Amended Complaint upon court-provided forms and that
the Amended Complaint is to be limited to his claim of denial of
medical treatment against defendant Beth Komarek.
The clerk is directed to send plaintiff 1983 forms for use
in filing his Amended Complaint.
IT IS SO ORDERED.
Dated this 7th day of January, 2014, at Topeka, Kansas.

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

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