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Lynn v. McCurrie

United States District Court, D. Kansas

August 30, 2017

PATRICK C. LYNN, Plaintiff,
ANTHONY McCURRIE, et al., Defendants.


          J. THOMAS MARTEN, U.S. District Judge.

         Plaintiff, Patrick C. Lynn, is a prisoner currently housed at El Dorado Correctional Facility in El Dorado, Kansas (“EDCF”). Plaintiff proceeds pro se and has paid the filing fee in full. This matter is before the Court on various motions filed by Plaintiff.

         I. Background

         On March 14, 2017, Plaintiff filed this civil rights action under 42 U.S.C. § 1983 against various 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 life-threatening medical condition; and retaliation. Plaintiff 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 was transferred to the Lansing Correctional Facility (“LCF”) around April 5, 2017. See Doc. 9. Plaintiff asserts that he is transferred every 100 to 120 days under a rotation schedule between LCF, HCF and EDCF.

         On July 17, 2017, the Court entered an Order (Doc. 19): finding that Plaintiff is subject to the “three-strikes” provision under 28 U.S.C. § 1915(g); finding that Plaintiff failed to show that he is in imminent danger of serious physical injury; denying Plaintiff's motion to proceed in forma pauperis (Doc. 3); and granting Plaintiff until July 31, 2017, to submit the $400.00 filing fee. Plaintiff was transferred to the El Dorado Correctional Facility in El Dorado, Kansas (“EDCF”) on July 21, 2017. See Doc. 21. The Court granted Plaintiff an extension of time to pay the filing fee (Doc. 39); and the filing fee was paid on August 16, 2017.

         II. Motions

         1. Motion to Amend Complaint (Doc. 44)

         Plaintiff has filed a motion seeking leave to file a “comprehensive consolidated” amended complaint. (Doc. 44.) Plaintiff asks the Court to grant him forty-five days in which to file his amended complaint. The Court grants the motion. The Court therefore denies Plaintiff's previous requests to amend the complaint or to add supplemental claims. See Doc. 11 (Motion for Meaningful Court Access Order to Properly Finish Remaining Counts); Doc. 29 (Motion for Leave to Add Supplemental Actionable Claims and Defendants); and Doc. 30 (Motion for Leave to Amend Complaint).

         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 (17-3041-JTM-DJW) at the top of the first page of his Amended Complaint and he 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 must allege sufficient additional facts to show a federal constitutional violation.

         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.

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, ...

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