Zapata v. Conard et al
MEMORANDUM AND ORDER ENTERED: This action is dismissed without prejudice. Plaintiff's Amended Motion to Add a New Defendant to Lawsuit 8 is denied. Signed by Senior U.S. District Judge Sam A. Crow on 01/25/17. Mailed to pro se party John Zapata by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CASE NO. 16-3114-SAC-DJW
LEVI CONARD, SHAWN McCLAY,
and RENO COUNTY CORRECTIONAL
MEMORANDUM AND ORDER
Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is
currently incarcerated at the Ellsworth County Jail in Ellsworth, Kansas.
The Court entered a
Notice and Order to Show Cause (“NOSC”) (Doc. 6), finding this action subject to dismissal,
and giving Plaintiff time to show good cause why this action should not be dismissed for the
reasons stated in the NOSC. The matter is before the Court upon Plaintiff’s Response to the
NOSC (Doc. 7) and Plaintiff’s Amended Motion to Add a New Defendant to Lawsuit (Doc. 8).
I. Nature of the Matter before the Court
In his original Complaint (Doc. 1), Plaintiff alleges that while he was an inmate at the
Reno County Correctional Facility his constitutional rights were violated when Defendants
opened his legal mail outside of his presence. (Doc. 1.) Plaintiff alleges that on April 4, 2016,
Defendant Conard opened Plaintiff’s legal mail from his attorney outside of Plaintiff’s presence.
The mail was delivered to Plaintiff the next day. On May 10, 2016, Plaintiff received mail from
the Court consisting of forms, which had been opened outside of his presence.
Plaintiff filed a Motion for Leave to File an Amended Complaint (Doc. 4), seeking to add
claims against Reno County District Attorney Thomas Stanton for harassment, threat and
prosecutorial misconduct. In the NOSC, Magistrate Judge Waxse granted the motion to amend,
finding that Plaintiff is entitled to amend his complaint once as a matter of course, See Fed. R.
Civ. P. 15(a)(1) (a party has the right to amend the complaint once as a matter of course if the
amendment is timely filed). However, Magistrate Judge Waxse found that the new claims set
forth in Plaintiff’s motion to amend are subject to dismissal. Plaintiff’s response did not address
the claims against the District Attorney, and they are dismissed for the reasons set forth in the
1. Legal Mail
In the NOSC, Magistrate Judge Waxse held that because Plaintiff has not alleged
improper motive or interference with access to the courts or counsel, he has failed to allege a
constitutional violation and his claim is subject to dismissal. (Doc. 6, at 4–5) (citing Florence v.
Booker, 23 F. App’x 970, 972 (10th Cir. 2001) (citing Smith v. Maschner, 899 F.2d 940, 944
(10th Cir. 1990) (the Tenth Circuit has held that where prison officials opened one piece of
constitutionally protected mail by accident, “[s]uch an isolated incident, without any evidence of
improper motive or resulting interference with [the inmate’s] right . . . of access to the courts,
does not give rise to a constitutional violation.”); Thompson v. Hooper, No. 05-3470-JWL, 2006
WL 1128692, at *4 (D. Kan. April 25, 2006) (citing Florence, 23 F. App’x at 972) (where a
plaintiff has alleged merely two isolated incidents in which jail officials opened legal mail,
plaintiff “must therefore show either an improper motivation by defendants or denial of access to
the courts.”); see also Bagguley v. Barr, 893 F. Supp. 967, 972 (D. Kan. 1995) (“[A]ssuming
these three envelopes were opened in violation of the applicable federal regulations, such
conduct, under the circumstances of this case, does not rise to the level of a constitutional
violation.”); Williams v. Armstrong, No. 12-3136-SAC, 2013 WL 812185, at *4 (D. Kan. March
5, 2013) (claim dismissed where prisoner’s legal mail was opened on one or more occasions and
was explained to him as an error); Elrod v. Swanson, 478 F. Supp. 2d 1252, 1275 (D. Kan. 2007)
(plaintiff could not show injury from alleged opening of legal mail where plaintiff did not argue
interference with communication with counsel and did not show anything more than an
inadvertent mistake by prison officials); Rashaw-Bey v. Carrizales, No. 09-3075-JAR, 2010 WL
3613953, at *8 (D. Kan. Sept. 3, 2010) (inadvertent opening of three envelopes with no
allegation of deliberate conduct on part of prison officials insufficient to establish a First
Amendment constitutional violation)).
Plaintiff attempts to cure this deficiency in his Response at Doc. 7. Plaintiff alleges that
his legal mail had been opened on three prior occasions, but he “let those slide” since they were
only letters informing Plaintiff of his next court date. Plaintiff also alleges that the legal mail
opened on April 4, 2016, was examined because the staple was removed, the pages were out of
order, and his cell was searched that same day. Plaintiff claims that during the search of his cell,
officers went through his legal papers. Plaintiff claims that the District Attorney was aware of
information that was included in the letter. Plaintiff also alleges that other inmates had their
legal mail opened outside of their presence. In his response, Plaintiff asks for $2,500 in damages
from each defendant.
Plaintiff’s request for compensatory damages is subject to dismissal as barred by 42
U.S.C. § 1997e(e), which provides in pertinent part:
No Federal civil action may be brought by a prisoner confined in a jail, prison, or
other correctional facility, for mental or emotional injury suffered while in
custody without a prior showing of physical injury or the commission of a sexual
act (as defined in section 2246 of Title 18).
Id. Section 1997e(e) applies regardless of the nature of the underlying substantive violation
asserted. Searles v. Van Bebber, 251 F.3d 869, 876 (10th Cir. 2001) (applying § 1997e(e) to the
plaintiff’s First Amendment claim for free exercise of religion). Furthermore, Plaintiff is no
longer incarcerated at the Reno County Correctional Facility, making any request for injunctive
relief moot. Therefore, Plaintiff’s claim regarding his legal mail must be dismissed. If Plaintiff
believes that evidence was wrongly obtained in his criminal proceedings, he should raise that
issue in his criminal action.
2. Amended Motion to Add a New Defendant to Lawsuit
Plaintiff’s amended motion (Doc. 8) seeks to add the Sheriff of Ellsworth County and the
Ellsworth County Jail as Defendants. The allegations in the motion relate to conditions at the
Ellsworth County Jail, where Plaintiff is currently incarcerated. The current action is based on
allegations that Plaintiff’s legal mail was opened at the Reno County Correctional Facility, where
Plaintiff was previously incarcerated. Plaintiff must follow Rules 20 and 18 of the Federal Rules
of Civil Procedure.
FRCP Rule 20 governs permissive joinder of parties and pertinently
(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
Fed. R. Civ. P. 20(a)(2). Rule 18(a) governs joinder of claims and pertinently provides: “A party
asserting a claim . . . may join . . . as many claims as it has against an opposing party.” Fed. R.
Civ. P. 18(a). While joinder is encouraged for purposes of judicial economy, the “Federal Rules
do not contemplate joinder of different 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). The Court of Appeals for the Seventh Circuit held in
George v. Smith that under “the controlling principle” in Rule 18(a), “[u]nrelated claims against
different defendants belong in different suits.” George v. Smith, 507 F.3d 605, 607 (7th Cir.
2007) (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.”).
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 obligations1 and the three strikes provisions2 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.”).
In sum, under Rule 18(a), a plaintiff may bring multiple claims against a single
defendant. Under Rule 20(a)(2), he may join in one action any other defendants who were
involved in the same transaction or occurrence and as to whom there is a common issue of law or
fact. He may not bring multiple claims against multiple defendants unless the prescribed nexus
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. Nonprisoner 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 in 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.
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.”
in Rule 20(a)(2) is demonstrated with respect to all defendants named in the action. The nexus is
lacking with respect to the new defendants and new claims alleged in Plaintiff’s motion to
amend. Accordingly, Plaintiff’s Amended Motion to Add a New Defendant to Lawsuit is
IT IS THEREFORE ORDERED BY THE COURT that this action is dismissed
IT IS FURTHER ORDERED that Plaintiff’s Amended Motion to Add a New
Defendant to Lawsuit (Doc. 8) is denied.
IT IS SO ORDERED.
Dated in Topeka, Kansas on this 25th day of January, 2017.
S/ Sam A. Crow
Sam A. Crow
Senior U. S. District Judge
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