PATRICK C. LYNN, Plaintiff,
STEVEN L. SCHULTZ, et al., Defendants.
MEMORANDUM AND ORDER
RICHARD D. ROGERS, District Judge.
This is a civil rights action brought by the plaintiff against three correctional officers at Hutchinson Correctional Facility (HCF) pursuant to 42 U.S.C. § 1983. The three defendants are Steven L. Schultz, D. Clay Vanhoose and William P. Widener. This matter is presently before the court upon the following motions: (1) plaintiff's motion for review of the Magistrate's order of December 4, 2012; (2) defendants' motion to dismiss or, in the alternative, for summary judgment; and (3) plaintiff's motion for emergency telephone hearing and for temporary restraining order and preliminary injunction.
Plaintiff is an inmate in the custody of the Kansas Secretary of Corrections at the Lansing Correctional Facility. Plaintiff, proceeding pro se, originally filed this suit under 42 U.S.C. § 1983 on April 4, 2011, alleging numerous civil rights violations against 114 defendants. Some time after the filing of his pro se complaint, plaintiff retained counsel and amended his complaint. The amended complaint was filed on April 26, 2012, and contains three counts against three defendants.
In Count 1, plaintiff alleges that, on October 7, 2009, defendants Widener and Vanhoose used excessive force and subjected him to "inhuman and unsafe conditions" when they used bleach in cleaning around his cell. He further alleges that after he complained about the bleach, Widener punched him and knocked him to the ground. He then alleges that either Widener or Vanhoose then slammed his face into the concrete while he was handcuffed. He contends that the actions of the defendants caused him physical pain and damage to his teeth and dental bridge. In Count 2, plaintiff alleges that, on December 15, 2009, defendant Schultz subjected him to excessive force and "inhuman and unsafe conditions" when defendant Schultz forced him to inhale bleach fumes. In Count 3, plaintiff alleges that, on October 7, 2009, defendants Widener and Vanhoose engaged in excessive force and retaliated against him for exercising his First Amendment rights. Plaintiff incorporates the allegations contained in Count 1 concerning the physical actions that were taken by the defendants against him. Plaintiff asserts that these actions were taken because he had "exercised his rights to complain to the segregation review board about the conditions the Defendants were exposing him to, and about them not letting him use the phone." Plaintiff seeks monetary damages, production of any video surveillance of the incidents, and discovery information so he can serve the defendants in their individual capacities. Finally, he asks that his dental bridge be fixed. Plaintiff initially only served the office of the Kansas Attorney General.
On August 24, 2012, Magistrate O'Hara held a scheduling conference. During that conference, plaintiff sought contact information about the defendants so that they could be served in their individual capacities. Later that day, defense counsel provided plaintiff with information on how each defendant could be served. On September 6, 2012, the clerk of the court issued summons for defendants Vanhoose and Widener.
On September 18, 2012, defendants filed a motion to dismiss or, in the alternative, motion for summary judgment. In this motion, defendants contended plaintiff's claims against them in their official capacities should be dismissed. The defendants further argued that plaintiff's claims should be dismissed or they are entitled to judgment on these claims because plaintiff failed to exhaust administrative remedies.
Thereafter, the defendants filed a motion to stay discovery and a motion for extension of time to disclose experts and amend the scheduling order. On November 6, 2012, plaintiff then filed a motion for extension of time to perfect service on the defendants in their individual capacities. Plaintiff requested an extension of time until February 1, 2013 in which to serve the defendants in their individual capacities. Defendants Vanhoose and Widener were eventually served on November 15, 2012.
On December 4, 2012, Magistrate O'Hara denied plaintiff's motion for an extension of time to perfect service on the defendants in their individual capacities. In doing so, he determined that (1) plaintiff had not shown good cause for the extension of time; (2) a permissive extension was not warranted on Counts of 1 and 3 because plaintiff's claims were barred by the applicable statute of limitations; and (3) a permissive extension was not warranted on Count 2 because defendants would be prejudiced by plaintiff's delay in service. Magistrate O'Hara also granted defendants' motion to stay discovery and pretrial proceedings. Finally, he denied as moot the defendants' motion for an extension of time to disclose experts and amend the scheduling order.
Plaintiff filed a motion for review of Magistrate O'Hara's order on December 19, 2012. Thereafter, counsel for plaintiff was allowed to withdraw. Plaintiff began handling this case pro se again on January 15, 2013. Plaintiff, once again proceeding pro se, then filed a motion for emergency telephone hearing, for temporary restraining order and for preliminary injunction.
The court shall first consider plaintiff's motion for review. Plaintiff objects to various aspects of the Magistrate's order of December 4, 2012. He obviously objects to the Magistrate's decision concerning whether good cause existed to extend the time for service and whether a permissive extension should be granted. He further contends that Magistrate O'Hara erred in concluding that the lack of first names of the defendants did not prevent the issuance of summonses by the clerk's office. He also argues that the Magistrate O'Hara erred in concluding that (1) service was 23 days late; (2) plaintiff failed to pursue the grievance process on the first and third claims and therefore the claims are time-barred; and (3) the defendants would be prejudiced by the late service. He also asserts that the Magistrate should have considered the statements in Fed.R.Civ.P. Rule 4 concerning dual capacity service.
The defendants have responded and contend that (1) plaintiff has waived review of the Magistrate's order by failing to file timely objections; (2) plaintiff has waived review of the Magistrate's order by failing to file specific objections; and (3) there was no error in the Magistrate's order.
The court begins with the defendants' first contention. The defendants argue that plaintiff waived his right to review of the Magistrate's order because he failed to file a timely motion for review. We must agree. The Magistrate entered his order on December 4, 2012. Pursuant to Fed.R.Civ.P. 72, plaintiff had fourteen days to seek review of the order. He filed his motion on December 19, 2012, fifteen days after the entry of the order. Therefore, the court shall deny plaintiff's motion as untimely. See, e.g., Nicks v. Brewer, No. 10-1220-JAR , 2010 WL 4873647 at * 1 (D.Kan. Nov. 23, 2010)(motion for review filed fifteen days after magistrate's order is untimely under Rule ...