Lynn (ID 64377) v. McCurrie et al

Filing 73

MEMORANDUM AND ORDER. Plaintiff is granted until July 20, 2018, to file a proper second amended complaint that complies with the rules as set forth in this Memorandum and Order. Plaintiff should also refrain from filing any pleadings other than a proper second amended complaint. Plaintiff's practice of continuing to file voluminous pleadings delays the screening process. Signed by District Judge John W. Broomes on 6/25/2018.Mailed to pro se party Patrick C. Lynn. (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 Lansing Correctional Facility
in Lansing, Kansas (“LCF”). Plaintiff proceeds pro se and has paid the filing fee in full. This
matter is before the court for screening of Plaintiff’s First Amended Complaint (“FAC”).
(Doc. 64.)
I. Nature of the Matter before the Court
On March 14, 2017, Plaintiff filed this civil rights action under 42 U.S.C. § 1983 against
various Kansas Department of Correction (“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 lifethreatening medical condition; and retaliation. Plaintiff’s original complaint 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 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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Plaintiff filed a motion (Doc. 44) seeking an extension of time to file an amended
complaint. The court entered an Order granting an extension of time to October 20, 2017, and
cautioned Plaintiff that he must follow Rules 18 and 20 of the Federal Rules of Civil Procedure
when filing his amended complaint. (Doc. 46, at 3–4.) Plaintiff filed another motion for extension
of time (Doc. 49), and the court entered an Order (Doc. 50) granting Plaintiff an extension of time
to November 20, 2017, to file his amended complaint. Plaintiff filed another motion for extension
of time (Doc. 59), and the court entered an Order (Doc. 61) granting Plaintiff an extension of time
to December 30, 2017, to file his amended complaint. Plaintiff again filed another motion for
extension of time (Doc. 62), and the court entered an Order (Doc. 63) granting an extension to
February 2, 2018, and noting that no further extensions would be granted.
Plaintiff filed his FAC on February 2, 2018 (Doc. 64). Various pages in the FAC set forth
categories of defendants, without listing any individual defendants. On February 12, 2018,
Plaintiff filed a document titled “Plaintiff’s Submission of Defendants’ Names for Compliance
with Sections A.3(a)–(e).” (Doc. 65.) The document consists of eight pages containing lists of
individual defendants.
On April 2, 2018, Plaintiff filed a 171-page document titled “Plaintiff’s Proffer of Evidence
& Supporting Memorandum.” (Doc. 66.)

In the proffer, Plaintiff states that he is submitting “a

sample of evidence” which validates his causes of action for being subjected to “around 100
conspiratorially perjurous” prison disciplinary reports and hearings that violated due process and
other laws. Plaintiff then asserts that Defendants should be required to file a Martinez Report.
Plaintiff attaches 168 pages of exhibits, including documentation for various disciplinary reports
and appeals, and Plaintiff’s handwritten “background facts” relating to those disciplinary reports.

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Plaintiff submits documentation relating to DR Cases: 17-9-137; 17-9-164; 17-10-427; 17-10433; 17-11-232; and 17-12-369.
On May 9, 2018, Plaintiff filed a “Motion for Orders with Supporting 2nd Samples of
Evidence,” with 191 pages of attached exhibits. (Doc. 68.) On May 16, 2018, Plaintiff filed a 74page document containing additional exhibits to Doc. 68. (Doc. 69–1.) On June 18, 2018,
Magistrate Judge Gale’s chambers received a letter from Plaintiff, inquiring about the status of the
case, and requesting a teleconference hearing and service on defendants. (Doc. 71–1.) On June
20, 2018, Magistrate Judge Gale entered an Order, denying Plaintiff’s request for a teleconference
hearing and finding that Plaintiff is responsible for service in light of the denial of his motion to
proceed in forma pauperis. (Doc. 71.) Magistrate Judge Gale denied Plaintiff’s Motion for Orders
(Doc. 68), extended the deadline for service to September 29, 2018, and stayed the service
requirement until such time as the court’s screening order instructs Plaintiff regarding if and when
service should proceed as well as which Defendant(s) shall be served. (Docs. 71, 72.)
II. Plaintiff’s FAC
In complete disregard of the court’s Order to follow Rules 18 and 20 when filing his
amended complaint, Plaintiff’s FAC includes multiple unrelated claims and defendants. Counts 1
through 25 of the FAC allege 25 separate instances of excessive force; Counts 26 through 31 allege
the denial of medical care; Counts 32 through 39 allege the denial of court access and the tort of
“obstruction of justice”; Counts 40 through 44 allege retaliation; and Counts 45 through 48 allege
ADA violations at each facility. Plaintiff’s retaliation claims relate to: transfers; rules violations
and alleged unconstitutional disciplinary hearings; the denial of court access; and the destruction
and removal of legal files.

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Plaintiff offers no justification for disregarding the previous order nor any new arguments
as to why claims involving entirely different incidents and defendants are properly joined. Plaintiff
names approximately 311 defendants, including approximately 98 John Does.

His named

defendants include: former and current staff at LCF, HCF and EDCF; KDOC staff; Corizon Health
staff and medical providers; Corizon Health; the Kansas Governor, Attorney General, and State
Representatives; the Leavenworth County Sheriff and District Attorney; the Butler County Sheriff
and District Attorney; the Reno County Sheriff and District Attorney; the Chief Judge of the
Kansas Court of Appeals; the Chief Judge of the Kansas Supreme Court; the Kansas Disciplinary
Administrator; members of the Kansas Judicial Qualifications Commission; a Johnson County
District Court Judge and the Chief Judge; the Kansas Judicial Administrator; the State of Kansas;
the KDOC; the Kansas BIDS Director; the Kansas Court of Appeals’ “Retention/Yes Vote”
Campaign Spokesperson for the November 2016 General Election; the current and former United
States Attorneys for the District of Kansas; a Kansas “FBI/SAIC”; the United States Attorney
General; and the Department of Justice Civil Rights Division.
III. Discussion
On August 30, 2017, the court entered an Order (Doc. 46) granting Plaintiff’s motion for
leave to amend. The Order expressly provides as follows:
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.
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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 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.

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Doc. 46, at 3–4. The Order further directed the Clerk to send Plaintiff copies of Rules 18 and 20
of the Federal Rules of Civil Procedure. Id. at 9.
Plaintiff has failed to follow the court’s Order regarding Rules 18 and 20 in filing his FAC.
Plaintiff’s FAC also violates Rule 8 of the Federal Rules of Civil Procedure because it is not a
short and plain statement of Plaintiff’s claim. His FAC also violates D. Kan. Rule 9.1(a) because
Plaintiff has not actually submitted his claims and supporting facts on the court-approved forms.
Instead, he references paragraphs from his attached, handwritten pages.
The court recognizes that Plaintiff was required to pay the filing fee in this case because
he is a three-strikes litigant. “To permit plaintiff to proceed in this single action on unrelated
claims against different defendants that should be litigated in a separate action or actions would
allow him to avoid paying the filing fees required for separate actions.” McLemore v. Saline Cty.
Sherriff’s Office, No. 15-3202-JAR-DJW, 2016 WL 3522048, at *4–5 (D. Kan. June 28, 2016)
(noting that the separateness of Plaintiff’s claims is evidenced by the separate filings over the
course of months). “It might also allow him to circumvent the three strikes provision set forth in
28 U.S.C. § 1915(g).” Id.
The court in Gulley v. Semple, noted that “Rule 20 is becoming increasingly important to
district courts tasked with reviewing prisoner’s complaints pursuant to 28 U.S.C. § 1915A.”
Gulley v. Semple, No. 3:16-cv-1575 (MPS), 2016 WL 7394004, at n.2 (D. Conn. Dec. 21, 2016)
(finding complaint failed to comply with Rule 20 where plaintiff’s excessive force claims were
unrelated to his claim of deliberate indifference to serious mental health needs and the claims
involved different defendants). The court cited two commentators as follows:
In the past, courts did not always pay much attention to this rule.
However, nowadays they are concerned that prisoners will try to
avoid the filing fee and “three strikes” provisions of the Prison
Litigation Reform Act (PLRA) by joining claims in one complaint
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that really should be filed in separate actions which require separate
filing fees and would count as separate “strikes” if dismissed on
certain ground.
Id. at n.2 (citing John Boston & Daniel E. Manville, Prisoner’s Self-Help Litigation Manual 348
(4th ed. 2010) (collecting cases)).
Applying the rules to Plaintiff’s FAC, the fundamental problem is that no single claim
implicates all 311 defendants. Plaintiff has not asserted any claim against all defendants that
“arises out of the same transaction or occurrence and presents questions of law or fact common to
all” as required by Rule 20. Consequently, in addition to violating the court’s order, Rule 8 and
Local Rule 9.1, Plaintiff’s FAC fails to comply with the joinder rules and cannot go forward as
filed. To allow this “mishmash of a complaint” to proceed as filed would result in a “morass” and
would also effectively allow Plaintiff to bring multiple lawsuits for the price of one. George, 507
F.3d at 607. The only way all of Plaintiff’s claims could be brought in one lawsuit is if the court
were to find that the transaction or occurrence out of which all the claims arise is Plaintiff’s
incarceration. This commonality is not sufficient to comply with the joinder rules. See Redmon
v. Zavarus, No. 09-cv-02133-BNB, 2009 WL 4059188 at *4 (D. Colo. Nov. 20, 2009); see also
Johnson v. Pamplin, No. 17-cv-0560-BAS-BLM, 2018 WL 316974, at *3 (S.D. Cal. Jan. 8, 2018)
(despite alleged assaults occurring within twenty four hours of each other, “temporal proximity is
insufficient to link two unrelated events for the purposes of Rule 20, even when the alleged acts
are similar” and fact that defendant-officers work at same institution is not enough to show that
distinct incidents are related) (citations omitted); Smith v. Goss, No. 1:16-cv-01356-BAM (PC),
2017 WL 2572460, at *6 (E.D. Cal. June 14, 2017) (finding that plaintiff may not pursue multiple
unrelated claims regarding excessive force); Brooks v. Houston County Detention Center, No.
5:15-cv-408 (MTT), 2016 WL 3676505, at n.2 (M.D. Ga. July 6, 2016) (finding that although

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plaintiff was allegedly assaulted at both prisons, “Plaintiff’s allegations fail to demonstrate a
‘logical relationship’ between his claims arising out of the conduct of any McEver Probation
Detention Center Official and claims arising out of the conduct of Houston County Detention
Center officials”); Ballard v. Hatley, No. 3:17-cv-393-FDW, 2018 WL 357905, at *1 (W.D. N.C.
Jan. 10, 2018) (finding that Eighth Amendment claims regarding deliberate indifference to serious
medical needs, conditions of confinement, and excessive force failed to comply with the rules
governing joinder of multiple claims and defendants in the same lawsuit).
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. In filing his second
amended complaint, Plaintiff must do the following: 1) utilize the forms provided by the clerk’s
office pursuant to Local Rule 9.1; 2) comply with Rule 8 by setting forth a short, plain statement
of the claim(s); and 3) comply with Rules 18 and 20. The misjoined claims and parties Plaintiff
excises from his FAC may be brought in separate actions. See McLemore, 2016 WL 3522048, at
*5 (dismissing without prejudice unrelated claims and noting that plaintiff “is welcome to file
those as separate cases” but plaintiff would be responsible for the full filing fees). However,
Plaintiff should be aware of potential statute of limitations issues, as the filing date of any separate
lawsuit would not relate back to the filing date of the original complaint. In other words, the statute
of limitations would not be tolled. See DirecTV, 467 F.3d at 845.
To clarify the current status of Plaintiff’s case, the court has not yet completed the screening
of his FAC required by 28 U.S.C. § 1915A(a). Once there is a complaint complying with this

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court’s orders, the Local Rules and the Federal Rules of Civil Procedure, the court will screen that
complaint, or those complaints in the event of severance, and dismiss any claim that is frivolous
or malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages
from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b).
IT IS THEREFORE ORDERED that Plaintiff is granted until July 20, 2018, to file a
proper second amended complaint that complies with the rules as set forth in this Memorandum
and Order. Plaintiff should also refrain from filing any pleadings other than a proper second
amended complaint. Plaintiff’s practice of continuing to file voluminous pleadings delays the
screening process.
IT IS SO ORDERED.
Dated this 25th day of June, 2018, in Wichita, Kansas.

s/ John W. Broomes________________
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE

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