Lynn (ID 64377) v. McCurrie et al

Filing 46

ORDER ENTERED: Plaintiff's Motion to Appoint Counsel 4 is denied without prejudice. Plaintiff's Motions 11 , 12 , 14 , 15 , 16 , 17 , 24 , 29 , 30 , 31 , 40 and 43 are denied. Plaintiff's Motion for Leave to Amend Co mplaint 44 is granted. Plaintiff is granted until October 20, 2017, in which to file an Amended Complaint as set forth in this Order. The clerk is directed to send Plaintiff forms for filing a civil rights complaint pursuant to § 1983, which he must use for his Amended Complaint. The clerk is also directed to send Plaintiff copies of Rules 18 and 20 of the Federal Rules of Civil Procedure. Signed by District Judge J. Thomas Marten on 08/30/17. Mailed to pro se party Patrick C. Lynn by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

PATRICK C. LYNN,
Plaintiff,
v.

CASE NO. 17-3041-JTM-DJW

ANTHONY McCURRIE, et al.,
Defendants.

ORDER
Plaintiff, Patrick C. Lynn, is a prisoner currently housed at El Dorado Correctional
Facility in El Dorado, Kansas (“EDCF”). Plaintiff proceeds pro se and has paid the filing fee in
full. This matter is before the Court on various motions filed by Plaintiff.
I. Background
On March 14, 2017, Plaintiff filed this civil rights action under 42 U.S.C. § 1983 against
various KDOC staff members and Corizon employees alleging “23 criminal batteries/excessive
use of force in violation of Plaintiff’s 8th Amendment rights that occurred between 3/18/15
through 5/11/16”; deliberate indifference to his life-threatening medical condition; and
retaliation. Plaintiff names ninety-seven defendants by name and an additional fifteen John or
Jane Doe defendants.

At the time of filing, Plaintiff was incarcerated at the Hutchinson

Correctional Facility in Hutchinson, Kansas (“HCF”). Plaintiff was transferred to the Lansing
Correctional Facility (“LCF”) around April 5, 2017. See Doc. 9. Plaintiff asserts that he is
transferred every 100 to 120 days under a rotation schedule between LCF, HCF and EDCF.

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On July 17, 2017, the Court entered an Order (Doc. 19): finding that Plaintiff is subject
to the “three-strikes” provision under 28 U.S.C. § 1915(g); finding that Plaintiff failed to show
that he is in imminent danger of serious physical injury; denying Plaintiff’s motion to proceed in
forma pauperis (Doc. 3); and granting Plaintiff until July 31, 2017, to submit the $400.00 filing
fee. Plaintiff was transferred to the El Dorado Correctional Facility in El Dorado, Kansas
(“EDCF”) on July 21, 2017. See Doc. 21. The Court granted Plaintiff an extension of time to
pay the filing fee (Doc. 39); and the filing fee was paid on August 16, 2017.
II. Motions
1. Motion to Amend Complaint (Doc. 44)
Plaintiff has filed a motion seeking leave to file a “comprehensive consolidated”
amended complaint. (Doc. 44.) Plaintiff asks the Court to grant him forty-five days in which to
file his amended complaint. The Court grants the motion. The Court therefore denies Plaintiff’s
previous requests to amend the complaint or to add supplemental claims. See Doc. 11 (Motion
for Meaningful Court Access Order to Properly Finish Remaining Counts); Doc. 29 (Motion for
Leave to Add Supplemental Actionable Claims and Defendants); and Doc. 30 (Motion for Leave
to Amend Complaint).
In order to add claims, significant factual allegations, or change defendants, a plaintiff
must submit a complete Amended Complaint. See Fed. R. Civ. P. 15. An Amended Complaint
is not simply an addendum to the original complaint, and instead completely supersedes it.
Therefore, any claims or allegations not included in the Amended Complaint are no longer
before the court. It follows that a plaintiff may not simply refer to an earlier pleading, and the
Amended Complaint must contain all allegations and claims that a plaintiff intends to pursue in
the action, including those to be retained from the original complaint. Plaintiff must write the

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number of this case (17-3041-JTM-DJW) at the top of the first page of his Amended Complaint
and he must name every defendant in the caption of the Amended Complaint. See Fed. R. Civ.
P. 10(a). Plaintiff should also refer to each defendant again in the body of the complaint, where
he must allege facts describing the unconstitutional acts taken by each defendant including dates,
locations, and circumstances. Plaintiff must allege sufficient additional facts to show a federal
constitutional violation.
Plaintiff must also follow Rules 20 and 18 of the Federal Rules of Civil Procedure when
filing an Amended Complaint.

FRCP Rule 20 governs permissive joinder of parties 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.
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.”).

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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.”).
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
in Rule 20(a)(2) is demonstrated with respect to all defendants named in the action.
The Federal Rules authorize the court, on its own initiative at any stage of the litigation,
to drop any party and sever any claim. Fed. R. Civ. P. 21; Nasious v. City & Cnty. of Denver
Sheriff’s Dept., 415 F. App’x 877, 881 (10th Cir. 2011) (to remedy misjoinder, the court has two
options: (1) misjoined parties may be dropped or (2) any claims against misjoined parties may be
severed and proceeded with separately). In any Amended Complaint, Plaintiff should set forth
the transaction(s) or occurrence(s) which he intends to pursue in accordance with Rules 18 and
20, and limit his facts and allegations to properly-joined defendants and occurrences. Plaintiff
must allege facts in his complaint showing that all counts arise out of the same transaction,
occurrence, or series of transactions or occurrences; and that a question of law or fact common to
all defendants will arise in this action.
Plaintiff is given time to file a complete and proper Amended Complaint in which he
(1) shows he has exhausted administrative remedies for all claims alleged; (2) raises only

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properly joined claims and defendants; (3) alleges sufficient facts to state a claim for a federal
constitutional violation and show a cause of action in federal court, and (4) alleges sufficient
facts to show personal participation by each named defendant.
2) Motion to Appoint Counsel (Doc. 4)
Plaintiff seeks appointment of counsel, alleging that he has a severe heart condition and
he is routinely on disciplinary segregation without access to supplies, postage, and legal
materials. 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) (quoting Hill
v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004)). It is not enough “that
having counsel appointed would have assisted [the prisoner] in presenting his strongest possible
case, [as] the same could be said in any case.” Steffey, 461 F.3d at 1223 (quoting Rucks v.
Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)). In deciding whether to appoint counsel,
courts must evaluate “the merits of a prisoner’s claims, the nature and complexity of the factual
and legal issues, and the prisoner’s ability to investigate the facts and present his claims.” Hill,
393 F.3d at 1115 (citing Rucks, 57 F.3d at 979).
The Court denies the motion to appoint counsel without prejudice to Plaintiff refiling the
motion after the Court has screened Plaintiff’s Amended Complaint. Although Plaintiff has
demonstrated the ability to present his claims, it is not clear at this juncture whether Plaintiff will

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assert a colorable claim against a named defendant in his proposed Amended Complaint or
whether the issues in the Amended Complaint will be complex.
3) Motion for Protective Order (Doc. 12)
Plaintiff alleges in his motion that he has been subjected to approximately twenty
“separate criminal assaults & batteries/excessive uses of force & chemical munitions by LCF
guards” between March 18, 2015 and April 11, 2017. Plaintiff makes additional arguments
regarding his conditions of confinement. Plaintiff asks the Court to bar “LCF defendants & their
agents from further contact with him in any capacity much less another physical or chemical
munitions attack.”

(Doc. 12, at 3.)

The Court denies Plaintiff’s motion.

Plaintiff was

transferred from LCF on June 21, 2017 (Doc. 21) and the Court has previously held that Plaintiff
failed to show that he is in imminent danger of serious physical injury. See Doc. 19. Plaintiff’s
claims regarding his conditions of confinement should be submitted pursuant to a properly filed
complaint or, if appropriate, as part of his Amended Complaint in this case.
4) Motion for Orders to Enforce Court Access (Doc. 14)
Plaintiff claims retaliation in the form of denial of his legal and personal property by
defendants, along with other claims regarding his conditions of confinement. Plaintiff attaches a
copy of a habeas petition that he claims he has been denied the means to photocopy and file in
state court. Plaintiff claims that from November 11, 2016 to April 5, 2017, he was provided with
postage by HCF staff, but LCF defendants refuse to extend him credit for postage. The Court
denies Plaintiff’s motion. As noted, Plaintiff was transferred from LCF on June 21, 2017, and
Plaintiff’s claims regarding his conditions of confinement should be submitted pursuant to a
properly filed complaint or, if appropriate, as part of his Amended Complaint in this case.

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5) Motion for Sanctions and Motion for Orders (Doc. 15)
Plaintiff filed his “motion for sanctions” alleging that the LCF librarian is retaliating
against him by allowing him to only check out two items per week. Plaintiff states that he is
giving notice that he is adding the LCF librarian as a defendant. Plaintiff seeks sanctions against
various defendants and “injunctive relief & a sweeping declaratory judgment.” (Doc. 15, at 2.)
Plaintiff also notes that at EDCF he was routinely allowed to check out twenty legal cases a
week, and six or more cases a week at HCF. The Court denies the motion, again noting that
Plaintiff is no longer housed at LCF and claims regarding his conditions of confinement should
be submitted pursuant to a properly filed complaint or, if appropriate, as part of his Amended
Complaint in this case.
6) Motion for Injunctive Relief (Doc. 16)
Plaintiff’s motion sets forth his disagreement with medical treatment he received on
May 17, 2017, and seeks a hearing to take testimony from medical staff and “a sweeping
injunction” that orders defendants to seize and safekeep all security camera tapes and to allow
Plaintiff to appear before the federal grand jury to give evidence. The Court denies the motion,
again noting that Plaintiff is no longer housed at LCF and claims regarding his conditions of
confinement should be submitted pursuant to a properly filed complaint or, if appropriate, as part
of his Amended Complaint in this case.
7) Motion for Emergency Hearing (Doc. 17)
Plaintiff alleges in his motion that on May 15, 2017, he submitted for E-filing a 25-page
continuation including Counts 23 to Count 52, plus an amended listing of defendants. Plaintiff
claims this document was “corruptly seized” by defendants who refused to E-file the document.
Plaintiff again asks the Court to present him to a federal grand jury. Plaintiff further alleges that

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additional documents submitted for E-filing on May 15 and May 18 were not filed. Plaintiff
seeks a hearing to obtain protective orders and to require the USAO to present all evidence to a
federal grand jury. The Court denies the motion, again noting that Plaintiff is no longer housed
at LCF and claims regarding his conditions of confinement should be submitted pursuant to a
properly filed complaint or, if appropriate, as part of his Amended Complaint in this case.
8) Notice of Heart Attack and Request for Orders (Doc. 24)
Plaintiff alleges in his motion that he discovered that his legal and personal property were
destroyed by LCF staff when he was transferred to EDCF on July 21, 2017. Plaintiff also claims
he was denied adequate medical care by EDCF staff on July 22, 2017. Plaintiff seeks “court
intervention & leave to file another supplemental lawsuit to add each & everyone involved in
this corrupt deliberate indifference to [his] serious medical condition.” (Doc. 24, at 2–3.) The
Court is granting Plaintiff’s motion for leave to file an Amended Complaint. The Court denies
the motion, and claims regarding his conditions of confinement should be submitted pursuant to
a properly filed complaint or, if appropriate, as part of his Amended Complaint in this case.
9) Motion for Orders (Doc. 31) and Motion to Compel Return of All Legal Files &
Materials (Doc. 40)
Plaintiff claims that he is being denied possession of his legal property in retaliation for
his pending litigation. Plaintiff states that EDCF staff has assured him that he will be allowed to
have the previously removed legal items. The Court denies the motion, and any retaliation
claims should be brought pursuant to a properly filed complaint or, if appropriate, as part of his
Amended Complaint.

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10) Motion for Leave to Reopen and Consolidate (Doc. 43)
Plaintiff seeks to add claims from previously-closed cases into his forthcoming amended
complaint, and asks the Court to “reserve judgment until it receives the proposed consolidated
§ 1983 complaint.” The Court denies the motion because it does not seek relief at this time. The
Court will determine the propriety of all claims included in Plaintiff’s amended complaint upon
screening.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion to Appoint
Counsel (Doc. 4) is denied without prejudice.
IT IS FURTHER ORDERED that Plaintiff’s Motions (Docs. 11, 12, 14, 15, 16, 17, 24,
29, 30, 31, 40 and 43) are denied.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to Amend Complaint
(Doc. 44) is granted. Plaintiff is granted until October 20, 2017, in which to file an Amended
Complaint as set forth in this Order.
The clerk is directed to send Plaintiff forms for filing a civil rights complaint pursuant to
§ 1983, which he must use for his Amended Complaint. The clerk is also directed to send
Plaintiff copies of Rules 18 and 20 of the Federal Rules of Civil Procedure.
IT IS SO ORDERED.
Dated on this 30th day of August, 2017, in Wichita, Kansas.

s/ J. Thomas Marten
J. THOMAS MARTEN
U. S. District Judge

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