Perry (ID 76290) v. Parks et al

Filing 13

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion to amend the complaint (Doc. 11 ) is granted and plaintiff is granted to and including November 16, 2020, to submit the amended complaint. The clerk of the court shall transmit a form pleading to plaintiff. Signed by U.S. Senior District Judge Sam A. Crow on 10/15/20. Mailed to pro se party Michael J. Perry by regular mail. (smnd)

Case 5:19-cv-03266-SAC Document 13 Filed 10/15/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MICHAEL J. PERRY,
Plaintiff,
v.

CASE NO. 19-3266-SAC

ANDREW PARKS, et al.,
Defendants.

MEMORANDUM AND ORDER
This matter is before the court on plaintiff’s motion to amend the
complaint (Doc. 11).

Plaintiff is entitled to amend the complaint

once as a matter of course. See Fed. R. Civ. P. 15(a)(1)(a party has
the right to amend the complaint once as a matter of course if the
amendment is timely filed). See D. Kan. R.
15.1(a)(2)(party filing a motion to amend must attach the proposed
pleading).
Plaintiff’s

amended

complaint

must

be

submitted

upon

court-approved forms. In order to add claims or significant factual
allegations, or to change defendants, a plaintiff must submit a
complete amended complaint. See Fed. R. Civ. P. 15. An amended
complaint is not an addendum or supplement to the original complaint
but completely supersedes it. Therefore, any claims or allegations
not presented in the amended complaint are no longer before the court.
Plaintiff may not simply refer to an earlier pleading; instead, the
complaint must contain all allegations and claims that plaintiff
intends to present in the action, including those to be retained from
the original complaint. Plaintiff must include the case number of this
action on the first page of the amended complaint.

Case 5:19-cv-03266-SAC Document 13 Filed 10/15/20 Page 2 of 4

Plaintiff must name every defendant in the caption of the amended
complaint. See Fed. R. Civ. P. 10(a). Plaintiff must refer to each
defendant in the body of the complaint and must allege specific facts
that

describe the allegedly unconstitutional acts or omissions by

each defendant, including dates, locations, and circumstances.
Plaintiff also must comply with Rules 20 and 18 of the Federal
Rules of Civil Procedure in filing an amended complaint. Rule 20
governs permissive joinder of parties and provides, in relevant part:
(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 provides, in part: “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
to promote 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). See also 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.”).

Case 5:19-cv-03266-SAC Document 13 Filed 10/15/20 Page 3 of 4

Requiring adherence to the federal rules on joinder of parties
and claims in prisoner suits prevents “the sort of morass [a multiple
claim, multiple defendant] suit produce[s].”). Id. It also prevents
a prisoner from avoiding the fee obligations and the three-strike
provision 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.”).
Accordingly, 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 nexus required 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

must

set

forth

the

transactions or occurrences which he intends to pursue in accordance

Case 5:19-cv-03266-SAC Document 13 Filed 10/15/20 Page 4 of 4

with Rules 18 and 20 and must limit the facts and allegations to
properly-joined parties and events. Plaintiff must allege facts in
his

complaint

showing

that

all

counts

arise

out

of

the

same

transaction, occurrence, or series of transactions; and that a
question of law or fact common to all named defendants will arise in
the action.
Plaintiff must submit an amended complaint that (1) raises only
properly joined claims and defendants; (2) alleges sufficient facts
to state a claim of a federal constitutional violation and states a
federal cause of action; and (3) alleges sufficient facts to show
personal participation by each defendant.
If plaintiff fails to submit an amended complaint consistent with
these directions, the Court will decide this matter upon the current
complaint.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motion to amend
the complaint (Doc. 11) is granted, and plaintiff is granted to and
including November 16, 2020, to submit the amended complaint. The
clerk of the court shall transmit a form pleading to plaintiff.
IT IS SO ORDERED.
DATED:

This 15th day of October, 2020, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judg