Lynn (ID 64377) v. McCurrie et al

Filing 105

MEMORANDUM AND ORDER denying 104 Motion to Reopen Case; denying 104 Motion to Consolidate Cases; denying 104 Motion for Hearing. Signed by District Judge John W. Broomes on 4/19/2019. Mailed to pro se party Patrick C. Lynn by regular mail. (sz)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PATRICK C. LYNN,
Plaintiff,
v.

CASE NO. 17-3041-JWB-KGG

ANTHONY McCURRIE, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff, Patrick C. Lynn, is a prisoner currently housed at the Hutchinson Correctional
Facility in Hutchinson, Kansas. Plaintiff filed this pro se civil rights action under 42 U.S.C. § 1983
on March 14, 2017. On November 21, 2018, the court entered an Order (Doc. 90) directing
Plaintiff to file a proper second amended complaint that complies with the Federal Rules of Civil
Procedure, the Local Rules and this court’s orders, by November 28, 2018. Plaintiff failed to file
a proposed second amended complaint by the court’s deadline and on December 6, 2018, the court
dismissed this matter without prejudice under Fed. R. Civ. P. 41(b). (Doc. 93.) Plaintiff appealed,
and the Tenth Circuit Court of Appeals dismissed his appeal for lack of prosecution on January
31, 2019. (Doc. 103). This matter is before the court on Plaintiff’s “Motion to Reopen Case &
Consolidate with Pending ‘Cline’ Suit & Request for Video-Teleconference Hearing” (Doc. 104).
Plaintiff asks the court to reopen his case and consolidate it with his pending case No. 19-3003.
Local Rule 7.3 provides that “[p]arties seeking reconsideration of dispositive orders or
judgments must file a motion pursuant to Fed. R. Civ. P. 59(e) or 60.” D. Kan. Rule 7.3(a).
Because Plaintiff’s motion was filed more than 28 days after the entry of the order, the court will
treat it as a motion under Rule 60. See Fed. R. Civ. P. 59(e) (“A motion to alter or amend a
judgment must be filed no later than 28 days after the entry of the judgment.”).

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Plaintiff’s motion is treated as a motion filed under Rule 60(b) of the Federal Rules of Civil
Procedure, seeking relief from judgment entered in this matter. See Weitz v. Lovelace Health
System Inc., 214 F.3d 1175, 1178 (10th Cir. 2000). Rule 60(b) provides in relevant part that:
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the
following reasons: (1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for a new
trial under Rule 59(b); (3) fraud (whether previously called intrinsic
or extrinsic), misrepresentation, or misconduct by an opposing
party; (4) the judgment is void; (5) the judgment has been satisfied,
released, or discharged; it is based on an earlier judgment that has
been reversed or vacated; or applying it prospectively is no longer
equitable; or (6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
The court has reviewed the record and finds that Plaintiff is not entitled to relief under Rule
60(b). A Rule 60(b) motion provides extraordinary relief which “may only be granted in
exceptional circumstances.” Amoco Oil Co. v. United States Environmental Protection Agency,
231 F.3d 694, 697 (10th Cir. 2000); Servants of the Paraclete v. Does, 204 F.3d 1005, 1009 (10th
Cir. 2000).
Plaintiff argues in his motion that he failed to meet the court’s deadlines for “multiple
reasons” including his multiple heart attacks and scheduled surgeries which were cancelled
repeatedly, and because his attorney had his legal files. Plaintiff’s motion rehashes arguments he
has previously made. The court granted Plaintiff multiple extensions of time in this case. The
court previously denied his motion for a stay in this case and denied his motion to reconsider that
decision. (Doc. 92.) The court held that: “Plaintiff was tasked with paring down his [First
Amended Complaint (“FAC”)] and excising unrelated claims and defendants. All of the pertinent
facts and allegations were already included in his FAC and Plaintiff did not need access to all of

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his legal files to accomplish the task of paring it down and excising claims and defendants as
directed by the Memorandum and Order entered on June 25, 2018.” (Doc. 92, at 2.)
Plaintiff was afforded multiple opportunities to comply with the court’s orders and was
warned that failure to comply would result in dismissal of this case. On June 25, 2018, the court
entered a Memorandum and Order finding that Plaintiff’s First Amended Complaint was deficient
and granting Plaintiff until July 20, 2018, to file a proper second amended complaint that complies
with the rules set forth in the Memorandum and Order. (Doc. 73.) The Memorandum and Order
provided that:
Plaintiff’s defiance of the prior order probably merits immediate
dismissal; however, since the prior order did not expressly warn
Plaintiff of this possible consequence, the court will make it clear
now. Failure to comply with this order will likely result in
dismissal of this case without further notice. The court will allow
Plaintiff one more opportunity to comply with the Federal Rules of
Civil Procedure, the Local Rules and this court’s orders.
(Doc. 73, at 8.) On July 2, 2018, Plaintiff filed a motion for extension of time (Doc. 75), and the
court granted Plaintiff an extension of time to October 19, 2018, to file his second amended
complaint. (Doc. 77.) On September 26, 2018, Plaintiff filed another motion for extension of time
(Doc. 84), seeking “an additional & final 30 days’ time extension.” On October 2, 2018, the court
entered an Order (Doc. 88), granting Plaintiff’s motion for a final extension and extending the
deadline for filing his second amended complaint to November 19, 2018. On November 15, 2018,
Plaintiff filed a motion for temporary stay (Doc. 89) asking the court to stay this case pending
resolution of his state habeas case. The court denied the motion, but granted Plaintiff a brief
extension of time to November 28, 2018, in which to file a proper second amended complaint that
complies with the Federal Rules of Civil Procedure, the Local Rules and this court’s orders. (Doc.
90.) The court’s Order at Doc. 90 noted that:

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Plaintiff initiated this action and has a duty to diligently prosecute
his case. This case has been pending for over twenty months, and
Plaintiff has received multiple extensions of time in this case. The
Court’s most recent order granting Plaintiff an extension of time
noted that Plaintiff requested a “final 30-day extension of time,” and
granted Plaintiff an extension of time to November 19, 2018, to file
his second amended complaint. (Doc. 88.) Due to the delay in this
case, the court denies Plaintiff’s request for a stay, but will grant
Plaintiff a brief extension of time to file his second amended
complaint. Failure to file a proposed second amended complaint by
this deadline will subject this matter to dismissal for failure to
prosecute under Fed. R. Civ. P. 41(b).
(Doc. 90, at 1–2.) Plaintiff failed to file a proposed second amended complaint as ordered by the
court and his case was dismissed.
“Relief under Rule 60(b) is discretionary and is warranted only in exceptional
circumstances.” Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991) (citation
omitted). Revisiting issues already addressed “is not the purpose of a motion to reconsider,” and
“advanc[ing] new arguments or supporting facts which were otherwise available for presentation
when the original . . . motion was briefed” is likewise inappropriate. Id. Plaintiff has not shown
that relief under Rule 60(b) is warranted, and his motion to reopen this case is denied.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s “Motion to Reopen
Case & Consolidate with Pending ‘Cline’ Suit & Request for Video-Teleconference Hearing”
(Doc. 104) is DENIED.
IT IS SO ORDERED.
Dated on this 19th day of April, 2019, in Wichita, Kansas.
___s/ John W. Broomes____________
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE

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