Martini v. Cline et al
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE ENTERED: Plaintiff's motion to amend his complaint, for appointment of counsel and for injunctive relief 3 is granted in part and denied in part. Plaintiff's request for leave to amend his co mplaint is granted and the Clerk is directed to docket Plaintiff's proposed Amended Complaint at Doc. 3-1. Plaintiff's requests for injunctive relief are denied. Plaintiff's request for appointment of counsel is denied without prejud ice. Plaintiff's request to waive the initial partial filing fee 6 is granted. Plaintiff is granted until December 29, 2017, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why Plaintiff 039;s Amended Complaint should not be dismissed. Plaintiff is also granted until December 29, 2017, in which to file a complete and proper Second Amended Complaint to cure all the deficiencies. Signed by U.S. Senior District Judge Sam A. Crow on 12/01/17. Mailed to pro se party Scott Michael Martini by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SCOTT MICHAEL MARTINI,
CASE NO. 17-3188-SAC
SAM CLINE, et al.,
MEMORANDUM AND ORDER
AND ORDER TO SHOW CAUSE
Plaintiff Scott Michael Martini is hereby required to show good cause, in writing, to the
Honorable Sam A. Crow, United States District Judge, why this case should not be dismissed due
to the deficiencies in Plaintiff’s Amended Complaint that are discussed herein.
I. Nature of the Matter before the Court
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, and assessed an initial partial filing fee.
(Doc. 5.) Plaintiff filed a response (Doc. 6) indicating that he does not have the funds to pay the
initial partial filing fee. The Court will treat the response as a request to waive the initial partial
filing fee and will grant the request.
On November 2, 2017, Plaintiff filed a motion to amend his complaint, for appointment of
counsel and for injunctive relief (Doc. 3). Because Plaintiff is entitled to amend his complaint as
a matter of course under Fed. R. Civ. P. 15(a)(1), the Court grants the motion for leave to amend.
The Clerk is directed to docket Plaintiff’s proposed Amended Complaint at Doc. 3–1.
In his Amended Complaint, Plaintiff names as defendants: Sam Cline, Warden at Lansing
Correctional Facility (“LCF”); Ms. Parker, Unit Team C-1 at LCF; Ms. Holloman, Unit Team C-1
at LCF; and Mr. Taylor, Unit Team at Ellsworth Correctional Facility (“ECF”). Plaintiff sues the
Defendants in their official and individual capacities, and seeks compensatory and punitive
damages in the amount of three million dollars, and injunctive relief in the form of placement in
protective custody and immediate eye surgery.
Plaintiff alleges that Defendants have denied his requests to be placed in protective
custody. Plaintiff alleges that Defendants Parker and Holloman, Unit Team at C-1 Seg. Unit,
refused to put Plaintiff in protective custody at LCF. Plaintiff was moved to G-Pod at ECF, and
on February 28, 2017, he requested Defendant Taylor to immediately move him to protective
custody. Defendant Taylor denied his request. Plaintiff was subsequently assaulted by two
“attackers” on March 1, 2017, and was taken to the Ellsworth Hospital for a CAT scan. Plaintiff
attaches a KDOC Administrative Segregation Report dated March 1, 2017. (Doc. 3–1, at 8.)
The document shows that Plaintiff had a pre-segregation hearing and was then placed in
administrative segregation on “Other Security Risk” status after being involved in an altercation in
G-Pod. Plaintiff signed the report on March 2, 2017, writing “asking for protection” by his
Plaintiff also alleges that he is being denied proper medical care for the eye injury he
suffered due to the attack. Plaintiff claims he is being denied eye surgery, and that there is no eye
doctor at the Jackson County Jail where he is currently housed. Plaintiff also asserts that his
access to the courts has been limited while at the Jackson County Jail because he does not have
access to copies or a notary, and his legal papers are still stored at LCF.
II. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are
legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that
seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)–
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the
Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988)
(citations omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). A court
liberally construes a pro se complaint and applies “less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). In addition, the court accepts
all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th
Cir. 2006). On the other hand, “when the allegations in a complaint, however true, could not raise
a claim of entitlement to relief,” dismissal is appropriate. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 558 (2007).
A pro se litigant’s “conclusory allegations without supporting factual averments are
insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires “more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action.” Twombly, 550 U.S. at 555 (citations omitted). The complaint’s “factual
allegations must be enough to raise a right to relief above the speculative level” and “to state a
claim to relief that is plausible on its face.” Id. at 555, 570.
The Tenth Circuit Court of Appeals has explained “that, to state a claim in federal court, a
complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant did it;
how the defendant’s action harmed [the plaintiff]; and, what specific legal right the plaintiff
believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163
(10th Cir. 2007). The court “will not supply additional factual allegations to round out a
plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.” Whitney v. New Mexico,
113 F.3d 1170, 1173-74 (10th Cir. 1997) (citation omitted).
The Tenth Circuit has pointed out that the Supreme Court’s decisions in Twombly and
Erickson gave rise to a new standard of review for § 1915(e)(2)(B)(ii) dismissals. See Kay v.
Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (citations omitted); see also Smith v. United States,
561 F.3d 1090, 1098 (10th Cir. 2009). As a result, courts “look to the specific allegations in the
complaint to determine whether they plausibly support a legal claim for relief.” Kay, 500 F.3d at
1218 (citation omitted). Under this new standard, “a plaintiff must ‘nudge his claims across the
line from conceivable to plausible.’” Smith, 561 F.3d at 1098 (citation omitted). “Plausible” in
this context does not mean “likely to be true,” but rather refers “to the scope of the allegations in a
complaint: if they are so general that they encompass a wide swath of conduct, much of it
innocent,” then the plaintiff has not “nudged [his] claims across the line from conceivable to
plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S.
Ct. at 1974).
1. Official Capacity Claims
Plaintiff sues Defendants in their individual and official capacities. An official-capacity
suit is another way of pleading an action against the governmental entity itself. Kentucky v.
Graham, 473 U.S. 159, 165 (1985). “When a suit alleges a claim against a state official in his
official capacity, the real party in interest in the case is the state, and the state may raise the defense
of sovereign immunity under the Eleventh Amendment.” Callahan v. Poppell, 471 F.3d 1155,
1158 (10th Cir. 2006) (quotation omitted). Sovereign immunity generally bars actions in federal
court for damages against state officials acting in their official capacities. Harris v. Owens, 264
F.3d 1282, 1289 (10th Cir. 2001). It is well established that Congress did not abrogate the states’
sovereign immunity when it enacted § 1983. Quern v. Jordan, 440 U.S. 332, 338–45 (1979);
Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002). Plaintiff’s claims for monetary
damages against Defendants in their official capacities are subject to dismissal as barred by
2. Individual Capacity Claims
a. Defendant Cline
Plaintiff has failed to allege any personal involvement by Defendant Cline. The claims
against Warden Cline require proof that he personally committed a constitutional violation. Keith
v. Koerner, 843 F.3d 833, 837–38 (10th Cir. 2016) (citing Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009) (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that
each Government-official defendant, through the official’s own individual actions, has violated
the Constitution.”)). It is not enough that a defendant acted in a supervisory role when another
defendant violated a plaintiff’s constitutional rights. Keith, 843 F.3d at 838.
Plaintiff “must show an affirmative link between [Cline] and the constitutional violation,
which requires proof of three interrelated elements: (1) personal involvement; (2) causation; and
(3) state of mind.” Id. (internal quotation marks omitted) (citing Schneider v. City of Grand
Junction Police Dep’t., 717 F.3d 760, 767 (10th Cir. 2013) (quoting Dodds, 614 F.3d at 1195)).
Because Plaintiff has failed to allege any personal involvement by Defendant Cline, his claims
against him are subject to dismissal.
3. Failure to Protect
Plaintiff asserts that the Defendants have failed to protect him by refusing his requests to be
placed in protective custody. “Prison and jail officials, as well as municipal entities that employ
them, cannot absolutely guarantee the safety of their prisoners.
Nonetheless, they have a
constitutional duty to take reasonable steps to protect the prisoners’ safety and bodily integrity.”
Wright v. Collison, 651 F. App’x 745, 748 (10th Cir. 2016) (unpublished) (quoting Cox v. Glanz,
800 F.3d 1231, 1247–48 (10th Cir. 2015)).
“To establish a cognizable Eighth Amendment claim for failure to protect an inmate from
harm by other inmates, the plaintiff must show that he [was] incarcerated under conditions posing
a substantial risk of serious harm, the objective component, and that the prison official was
deliberately indifferent to his safety, the subjective component.” Id. (citing Smith v. Cummings,
445 F.3d 1254, 1258 (10th Cir. 2006) (brackets and internal quotation marks omitted)). For the
subjective component, “the plaintiff bears the burden to show that the defendants responded in an
‘objectively unreasonable manner’—that is, they ‘knew of ways to reduce the harm but knowingly
or recklessly declined to act.’” Id. (citing Howard v. Waide, 534 F.3d 1227, 1239 (10th Cir. 2008)
(brackets and internal quotation marks omitted)).
Plaintiff alleges that he requested protective custody, but submits no facts showing that he
faced a substantial risk of serious harm or that prison officials were deliberately indifferent to his
safety. Plaintiff’s failure to protect claim is subject to dismissal for failure to allege that any
defendant acted with deliberate indifference. Not “every injury suffered by one prisoner at the
hands of another . . . translates into constitutional liability for prison officials responsible for the
victim’s safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). The second requirement for an
Eighth Amendment violation “follows from the principle that ‘only the unnecessary and wanton
infliction of pain implicates the Eighth Amendment.’” Farmer, 511 U.S. at 834. Prison officials
must have a “sufficiently culpable state of mind,” and in prison-conditions cases that state of mind
is “deliberate indifference” to inmate health or safety. Id. “[T]he official must both be aware of
facts from which the inference could be drawn that a substantial risk of serious harm exists, and he
must also draw the inference.” Id. at 837. “The Eighth Amendment does not outlaw cruel and
unusual ‘conditions’; it outlaws cruel and unusual ‘punishments.’” Id. It is not enough to
establish that the official should have known of the risk of harm. Id.
4. Denial of Medical Care
Plaintiff claims that he has been denied proper medical because he has not received eye
surgery. Plaintiff does not specifically name the person responsible for his alleged denial of
The Eighth Amendment guarantees a prisoner the right to be free from cruel and unusual
punishment. “[D]eliberate indifference to serious medical needs of prisoners constitutes the
‘unnecessary and wanton infliction of pain’ . . . proscribed by the Eighth Amendment.” Estelle v.
Gamble, 429 U.S. 97, 104 (1976) (citation omitted).
The “deliberate indifference” standard includes both an objective and a subjective
component. Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir. 2005) (citation omitted). In the
objective analysis, the deprivation must be “sufficiently serious,” and the inmate must show the
presence of a “serious medical need,” that is “a serious illness or injury.” Estelle, 429 U.S. at 104,
105; Farmer v. Brennan, 511 U.S. 825, 834 (1994), Martinez, 430 F.3d at 1304 (citation omitted).
A serious medical need includes “one that has been diagnosed by a physician as mandating
treatment or one that is so obvious that even a lay person would easily recognize the necessity for
a doctor’s attention.” Martinez, 430 F.3d at 1304 (quoting Sealock v. Colorado, 218 F.3d 1205,
1209 (10th Cir. 2000)).
“The subjective component is met if a prison official knows of and disregards an
excessive risk to inmate health or safety.” Id. (quoting Sealock, 218 F.3d at 1209). In measuring
a prison official’s state of mind, “the official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”
Id. at 1305 (quoting Riddle v. Mondragon, 83 F.3d 1197, 1204 (10th Cir. 1996)).
A mere difference of opinion between the inmate and prison medical personnel regarding
diagnosis or reasonable treatment does not constitute cruel and unusual punishment. See Estelle,
429 U.S. at 106–07; see also Coppinger v. Townsend, 398 F.2d 392, 394 (10th Cir. 1968)
(prisoner’s right is to medical care—not to type or scope of medical care he desires and difference
of opinion between a physician and a patient does not give rise to a constitutional right or sustain a
claim under § 1983). Plaintiff states that he was transported to the Ellsworth Hospital and
received a CAT scan after he sustained his injuries. Plaintiff’s allegations do not show a complete
lack of medical care, but rather show Plaintiff’s disagreement regarding the proper course of
treatment. See Gee v. Pacheco, 627 F.3d 1178, 1192 (10th Cir. 2010) (noting that plaintiff’s
allegations indicate not a lack of medical treatment, but a disagreement with the doctor’s medical
judgment in treating a condition with a certain medication rather than others).
Delay in providing medical care does not violate the Eighth Amendment, unless there has
been deliberate indifference resulting in substantial harm. Olson v. Stotts, 9 F.3d 1475 (10th Cir.
1993). In situations where treatment was delayed rather than denied altogether, the Tenth Circuit
requires a showing that the inmate suffered “substantial harm” as a result of the delay. Sealock v.
Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000) (citation omitted). “The substantial harm
requirement ‘may be satisfied by lifelong handicap, permanent loss, or considerable pain.’” Mata
v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quoting Garrett v. Stratman, 254 F.3d 946, 950 (10th
Plaintiff’s allegations of denial of medical care are subject to dismissal for failure to state a
claim. Plaintiff’s allegations indicate that he has been furnished medical care during the relevant
time frame. They also indicate that his claims amount to a difference of opinion with the
treatments he has been provided by medical staff. Plaintiff’s allegations are nothing more than a
lay person’s disagreement with the medical treatment of his symptoms by medical professionals.
Such allegations do not rise to the level of a claim of cruel and unusual punishment under the
Eighth Amendment; and are, at most, grounds for a negligence or malpractice claim in state court.
Although Plaintiff fails to identify any named defendant regarding his medical claim, his
allegations reflect that he received medical care for his injuries. Plaintiff has failed to state a
claim of deliberate indifference to his medical needs.
5. Denial of Access to the Courts
Plaintiff’s Amended Complaint does not contain a count alleging a denial of access to the
However, his motion to amend suggests he is alleging such a claim.
well-established that a prison inmate has a constitutional right of access to the courts. However, it
is equally well-settled that in order “[t]o present a viable claim for denial of access to courts, . . . an
inmate must allege and prove prejudice arising from the defendants’ actions.” Peterson v.
Shanks, 149 F.3d 1140, 1145 (10th Cir. 1998) (citations omitted); Lewis v. Casey, 518 U.S. 343,
349 (1996) (“The requirement that an inmate . . . show actual injury derives ultimately from the
doctrine of standing.”).
An inmate may satisfy the actual-injury requirement by demonstrating that the alleged acts
or shortcomings of defendants “hindered his efforts to pursue” a non-frivolous legal claim.
Lewis, 518 U.S. at 351-53; see also Burnett v. Jones, 437 F. App’x 736, 744 (10th Cir. 2011) (“To
state a claim for violation of the constitutional right to access the courts, a prisoner ‘must
demonstrate actual injury . . .—that is, that the prisoner was frustrated or impeded in his efforts to
pursue a nonfrivolous legal claim concerning his conviction or his conditions of confinement.’”)
(quoting Gee v. Pacheco, 627 F.3d 1178, 1191 (10th Cir. 2010)).
The Supreme Court plainly held in Lewis that “the injury requirement is not satisfied by
just any type of frustrated legal claim.” Lewis, 518 at 354. Rather, the injury occurs only when
prisoners are prevented from attacking “their sentences, directly or collaterally” or challenging
“the conditions of their confinement.” Id. at 355. “Impairment of any other litigating capacity is
simply one of the incidental (and perfectly constitutional) consequences of conviction and
incarceration.” Id. (emphasis in original); see also Carper v. DeLand, 54 F.3d 613, 617 (10th
Cir. 1995) (“[A]n inmate’s right of access does not require the state to supply legal assistance
beyond the preparation of initial pleadings in a civil rights action regarding current confinement or
a petition for a writ of habeas corpus.”) (citations omitted).
A plaintiff must first allege facts in his complaint suggesting an actual injury, “an essential
requirement of a denial of access claim.” Harrison, 24 F. App’x at 967 (citing Lewis v. Casey,
518 U.S. 343, 351–52 (1996)). Plaintiff has failed to allege an actual injury. “It is not enough
for [plaintiff] to state that he is unable to file motions or briefs.” Id. Plaintiff has successfully
filed pleadings in this case. To the extent Plaintiff intends to claim a denial of access to the courts,
the claim is subject to dismissal for failure to state a claim. Plaintiff is also given an opportunity
to file an amended complaint setting forth additional facts alleging an actual injury caused by
6. Exhaustion of Administrative Remedies
Plaintiff states in his Amended Complaint that he has enclosed “all of [his] grievances”
showing exhaustion of his administrative remedies. However, the only attachment to Plaintiff’s
Amended Complaint is a KDOC Administrative Segregation Report. (Doc. 3–1, at 8.)
Under 42 U.S.C. § 1997e(a), a prisoner must exhaust his administrative remedies prior to
filing a lawsuit in federal court regarding prison conditions. 42 U.S.C. § 1997e(a).
Section 1997e(a) expressly provides:
No action shall be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are
Id. This exhaustion requirement “is mandatory, and the district court [is] not authorized to
dispense with it.” Beaudry v. Corrections Corp. of Am., 331 F.3d 1164, 1167 n.5 (10th Cir.
2003), cert. denied, 540 U.S. 1118 (2004); Little v. Jones, 607 F.3d 1245, 1249 (10th Cir. 2010).1
While failure to exhaust is an affirmative defense rather than a pleading requirement, and a
plaintiff is not required to plead it in the complaint, when that failure is clear from materials filed
by plaintiff, the court may sua sponte require plaintiff to show that he has exhausted. See
Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007) (acknowledging district
courts may raise exhaustion question sua sponte, consistent with 42 U.S.C. § 1997e(c)(1) and 28
To satisfy this requirement, a prisoner must fully comply with the institution’s grievance procedures. Jones v.
Bock, 549 U.S. 199, 218 (2007); Woodford v. Ngo, 548 U.S. 81, 90 (2006); Little, 607 F.3d at 1249 (The “inmate may
only exhaust by properly following all the steps laid out in the prison system’s grievance procedures.”) (citing
Woodford v. Ngo, 548 U.S. 81, 90 (2006). “An inmate who begins the grievance process but does not complete it is
barred from pursuing a § 1983 claim. . . .” Id. (citing Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002)).
U.S.C. §§ 1915 and 1915A, and dismiss prisoner complaint for failure to state a claim if it is clear
from face of complaint that prisoner has not exhausted administrative remedies).
This action is subject to dismissal because it appears from the face of the Amended
Complaint that Plaintiff failed to fully and properly exhaust all available prison administrative
remedies on his claims prior to filing this action in federal court. Because failure to exhaust
appears from the face of the Amended Complaint, Plaintiff is required to show that he has fully and
properly exhausted on each of the grounds raised in the Amended Complaint.
IV. Request for Injunctive Relief
Plaintiff has requested injunctive relief as follows: an order directing Defendant Cline to
transfer Plaintiff back to LCF and place him in protective custody; to have all of his property
returned; and to be provided immediate eye treatment.
To obtain a preliminary injunction, the moving party must demonstrate four things: (1) a
likelihood of success on the merits; (2) a likelihood that the movant will suffer irreparable harm in
the absence of preliminary relief; (3) that the balance of the equities tip in the movant’s favor; and
(4) that the injunction is in the public interest. Little v. Jones, 607 F.3d 1245, 1251 (10th Cir.
2010). “[A] showing of probable irreparable harm is the single most important prerequisite for
the issuance of a preliminary injunction.” Dominion Video Satellite, Inc. v. Echostar Satellite
Corp., 356 F.3d 1256, 1260 (10th Cir. 2004).
“To constitute irreparable harm, an injury must be certain, great, actual and not
theoretical.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003) (internal
quotation marks omitted). A preliminary injunction is only appropriate “to prevent existing or
presently threatening injuries. One will not be granted against something merely feared as liable
to occur at some indefinite time in the future.” State of Connecticut v. Commonwealth of
Massachusetts, 282 U.S. 660, 674 (1931).
The allegations Plaintiff makes do not establish that injury is “certain . . . and not
theoretical.” See Heideman, 348 F.3d at 1189. He has not alleged that injury is more than
“merely feared as liable to occur at some indefinite time in the future.” See Connecticut, 282 U.S.
A preliminary injunction is “an extraordinary remedy that may only be awarded upon a
clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 22 (2008). A preliminary injunction is appropriate only when the movant’s right
to relief is clear and unequivocal. Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005).
Moreover, a federal court considering a motion for preliminary injunctive relief affecting the
conditions of a prisoner’s confinement must give “substantial weight to any adverse impact on
public safety” and on prison operation.
18 U.S.C. § 3626(a)(2).
Finally, a mandatory
preliminary injunction, such as the one sought by Plaintiff, which requires the non-moving party to
take affirmative action, is disfavored and therefore requires the moving party to make a heightened
showing of the four factors above. Little, 607 F.3d at 1251.
The Court finds that Plaintiff has not met his burden to make a heightened showing that
entry of a preliminary injunction is warranted; he has not demonstrated a likelihood of success on
the merits such that his right to relief is clear and unequivocal. At this point in the proceedings,
the Court has directed Plaintiff to show cause why his Amended Complaint should not be
dismissed for failure to state a claim. Therefore, Plaintiff’s claims have not survived the initial
screening required by 28 U.S.C. § 1915. For this reason, Plaintiff’s motion for injunctive relief is
denied at this time.
V. Requests for Appointment of Counsel
Plaintiff has also requested appointment of counsel. Plaintiff asserts that it is difficult for
him to write due to his vision problems. 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 concludes in this case that (1) it is not clear at this juncture that Plaintiff has asserted a
colorable claim against a named defendant; (2) the issues are not complex; and (3) Plaintiff
appears capable of adequately presenting facts and arguments. The Court denies Plaintiff’s
request for appointment of counsel in this case without prejudice to refiling a motion if Plaintiff’s
Amended Complaint survives screening.
VI. Response and/or Amended Complaint Required
Plaintiff is required to show good cause why his Amended Complaint should not be
dismissed for the reasons stated herein. Plaintiff is also given the opportunity to file a complete
and proper Second Amended Complaint upon court-approved forms that cures all the deficiencies
discussed herein. 2 Plaintiff is given time to file a complete and proper Second Amended
Complaint in which he (1) shows he has exhausted administrative remedies for all claims alleged;
(2) raises only 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.
If Plaintiff does not file a Second Amended Complaint within the prescribed time that
cures all the deficiencies discussed herein, this matter will be decided based upon the current
deficient Amended Complaint.
IT IS THEREFORE ORDERED THAT Plaintiff’s motion to amend his complaint, for
appointment of counsel and for injunctive relief (Doc. 3) is granted in part and denied in part.
Plaintiff’s request for leave to amend his complaint is granted, and the Clerk is directed to docket
Plaintiff’s proposed Amended Complaint at Doc. 3–1. Plaintiff’s requests for injunctive relief are
denied. Plaintiff’s request for appointment of counsel is denied without prejudice.
IT IS FURTHER ORDERED that Plaintiff’s request to waive the initial partial filing fee
(Doc. 6) is granted.
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 (17-3188-SAC) at the
top of the first page of his Second Amended Complaint and he must name every defendant in the caption of the Second
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
IT IS FURTHER ORDERED that Plaintiff is granted until December 29, 2017, in which
to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why
Plaintiff’s Amended Complaint should not be dismissed for the reasons stated herein.
IT IS FURTHER ORDERED that Plaintiff is also granted until December 29, 2017, in
which to file a complete and proper Second Amended Complaint to cure all the deficiencies
The clerk is directed to send § 1983 forms and instructions to Plaintiff.
IT IS SO ORDERED.
Dated in Topeka, Kansas, on this 1st day of December, 2017.
s/ Sam A. Crow
Sam A. Crow
U.S. Senior District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?