LaBelle v. Mikelson et al

Filing 5

ORDER ENTERED: Plaintiff is granted until January 22, 2018, in which to file a complete and proper Amended Complaint to cure all the deficiencies. Signed by U.S. Senior District Judge Sam A. Crow on 12/22/17. Mailed to pro se party Kelly N. LaBelle by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KELLY N. LABELLE,
Plaintiff,
v.

CASE NO. 17-3137-SAC

(FNU) MIKELSON, et al.,
Defendants.
ORDER
Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. The Court
granted Plaintiff leave to proceed in forma pauperis. Plaintiff states in his Complaint that he will
need to amend his complaint to add additional counts. The Court will grant Plaintiff’s request
and give him additional time to file an amended complaint.
I. Plaintiff’s Complaint
Plaintiff alleges that he was brought into the Butler County Detention Center (“BCDC”)
as a pretrial detainee due to a traffic ticket. Plaintiff claims he was immobile and suffered from
heart conditions when he entered the facility.

Plaintiff’s “life vest” and money vanished.

Plaintiff was denied doctor-ordered physical therapy.

Deputies Leve and Sgt. Mikelson

assaulted Plaintiff, injuring his foot, shoulder and knee. Although Plaintiff couldn’t walk, “she”
said “she” was going to break Plaintiff’s other leg if he didn’t keep up with their pace. Leve
threatened to spray and taze Plaintiff, even though Plaintiff was not a threat because he was
immobile.
The hospital stated that Plaintiff had a hand sprain and needed an MRI. Dr. Gary ignores
the records and is unaware of them, and denies Plaintiff proper medication by changing his
prescription. Dr. Gary denies Plaintiff’s nitroglycerin and gives him beta blockers instead.
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Plaintiff’s MRI was ordered on July 7, but he has still not received it. Deputy Mueller requested
to view Plaintiff’s sexual organs, used a hand gesture to assimilate a sexual action, and asked if
Plaintiff’s penis was any larger than this. Plaintiff made reports to staff, but Detective McGuire
“buried them” and called Plaintiff a liar. Plaintiff claims he is living on the floor of his isolation
cell and “dragging himself through his own urine.” Until July 18, Plaintiff was denied any form
of written communication by Sgt. Mikelson. Plaintiff has also been denied access to the law
library.
II. DISCUSSION
Plaintiff states that he will need to amend his complaint when he has paper available.
The Court will give Plaintiff the opportunity to file a complete and proper Amended Complaint
upon court-approved forms. 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
number of this case (17-3137-SAC) at the top of the first page of his Amended Complaint.
Plaintiff 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’s current Complaint is deficient in that it refers to
“she” instead of naming the defendant; it includes an allegation that Plaintiff was denied access

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to the law library, without alleging who denied him access; it fails to allege who is responsible
for his vest and money disappearing; it fails to identify who is responsible for and what the facts
are surrounding Plaintiff’s claim that he is living on the floor of his isolation cell and “dragging
himself through his own urine.” Plaintiff fails to allege how Defendants Ramsey, Nurse, Brooke,
and Wilmite violated Plaintiff’s constitutional rights. Plaintiff’s claims must allege sufficient
additional facts to show a federal constitutional violation.
Plaintiff also joins various claims in his Complaint, including an alleged assault, the
failure to provide medical care, and an alleged sexual harassment. Plaintiff must 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.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is granted until
January 22, 2018, in which to file a complete and proper Amended Complaint to cure all the
deficiencies discussed herein.
The clerk is directed to send § 1983 forms and instructions to Plaintiff.
IT IS SO ORDERED.
Dated in Topeka, Kansas on this 22nd day of December, 2017.

S/ Sam A. Crow
Sam A. Crow
U.S. Senior District Judge

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