Lynn (ID 64377) v. McCurrie et al

Filing 61

ORDER ENTERED: Plaintiff's Motion to Appoint Counsel 56 is denied without prejudice. Plaintiff's Motions 52 , 54 , 55 & 57 are denied. Plaintiff's Motion to Stay Deadlines 51 and Motion for Extension of Time to File Amende d Complaint 59 are granted to the extent that Plaintiff is granted until December 30, 2017, in which to file an Amended Complaint. To the extent Plaintiff seeks additional relief in Docs. 51 and 59 , Plaintiff's requests are denied. Signed by District Judge J. Thomas Marten on 12/01/17. 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-KGG

ANTHONY McCURRIE, et al.,
Defendants.

ORDER
Plaintiff, Patrick C. Lynn, is a prisoner currently housed at Hutchinson Correctional
Facility in Hutchinson, Kansas (“HCF”). 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 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 El Dorado Correctional Facility in El Dorado, Kansas (“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 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. On August 30, 2017, the Court granted Plaintiff’s motion to amend his
complaint (Doc. 46), directing Plaintiff to file his amended complaint by October 20, 2017.
Plaintiff filed a motion for an extension of time to file his amended complaint, and the Court
granted him an extension of time to November 20, 2017, to file his amended complaint.
(Doc. 50.) Plaintiff was transferred to HCF on November 27, 2017. (Doc. 60.)

Plaintiff

has

now filed various motions seeking to stay the proceedings, for an extension of time, and
requesting appointment of counsel and a video-teleconference hearing.
II. Motions
1) Motion for Temporary Stay (Doc. 51); Motion for Extension of Time (Doc. 59);
Motions for Hearings (Docs. 52, 53, 54, and 55); and Motion for Grand Jury
Appearance (Doc. 57).
Plaintiff alleges that on October 25, 2017, CSI Palm entered Plaintiff’s cell at EDCF after
Plaintiff left to shower. (Doc. 51, at 1.) Plaintiff’s revisions for his amended complaint were on
top of Plaintiff’s desk. Palm ransacked Plaintiff’s files and documents and trashed Plaintiff’s
work product. Plaintiff alleges that he cannot start over in preparing his amended complaint
without protective orders. Plaintiff acknowledges that he was charged with rules violations on
October 25, 2017, and attaches his disciplinary report. Id. at 17.

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Plaintiff alleges that during the ransacking incident, his legal files were “dumped atop
[his] cell desk” and “emptied from the file folders and dumped/disarrayed in a pile atop [his]
desk.” (Doc. 52, at 1.) Plaintiff seeks a hearing, alleging that he is being denied writing paper,
pen, and legal postage credit to write his attorney or the courts. Id. at 2. The Court notes that
Plaintiff has filed numerous documents with this Court, and his pleadings filed since
November 1, 2017, total over 180 pages.
Plaintiff seeks an extension of time to file his amended complaint, expressing concern
that some of his documents submitted to ECDF staff were not filed with the Court. The Court
will grant Plaintiff’s request to stay the deadlines in the case and will grant him an extension of
time to file his amended complaint. This will give Plaintiff time to get his legal work product in
order for filing. The Court also directs the Clerk to provide Plaintiff with a copy of the docket in
this case.
Plaintiff’s requests for a hearing and to appear before a grand jury are based on his
disciplinary issues arising from the October 25, 2017 incident, as well as other grievances he has
filed relating to his conditions of confinement. These issues, arising after Plaintiff filed the
instant case, must be exhausted through the administrative remedies procedures available to
Plaintiff before being brought before the Court. After exhaustion, 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. The Court denies Plaintiff’s requests
for a hearing and to appear before a grand jury.
2. Motion to Appoint Counsel (Doc. 56) and Correction (Doc. 58)
Plaintiff seeks appointment of counsel, alleging that he needs assistance in completing
and filing his amended complaint due to his legal paperwork being ransacked and his legal pad

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with 25 to 30 pages of his halfway completed amended complaint being confiscated. The Court
has granted Plaintiff’s request for an extension of time to file his amended complaint. Plaintiff
has also submitted a draft of his Amended Complaint that he submits as proof of his due
diligence. See Doc. 59–1.
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
assert a colorable claim against a named defendant in his proposed Amended Complaint or
whether the issues in the Amended Complaint will be complex.

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IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion to Appoint
Counsel (Doc. 56) is denied without prejudice.
IT IS FURTHER ORDERED that Plaintiff’s Motions (Docs. 52, 54, 55, and 57) are
denied.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Stay Deadlines (Doc. 51) and
Motion for Extension of Time to File Amended Complaint (Doc. 59) are granted to the extent
that Plaintiff is granted until December 30, 2017, in which to file an Amended Complaint as set
forth in this Order. To the extent Plaintiff seeks additional relief in Docs. 51 and 59, Plaintiff’s
requests are denied.
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 a copy of the docket in this case.
IT IS SO ORDERED.
Dated on this 1st day of December, 2017, in Wichita, Kansas.

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

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