United States District Court, D. Kansas
MEMORANDUM AND ORDER
Crow U.S. Senior District Judge
pro se civil rights complaint was filed pursuant to 42 U.S.C.
§ 1983 by an inmate of the Washington County Jail in
Washington, Kansas. Pursuant to plaintiff's motion for
leave to proceed in forma pauperis under 28 U.S.C. §
1915, the court directed an initial partial filing fee of
$1.00. (Doc. 6). Based on plaintiff's failure to pay this
assessed fee, the court entered an order and judgment on
April 18, 2017, dismissing the case without prejudice
pursuant to Fed.R.Civ.P. 41(b). (Docs. 7 & 8).
matter is before the court on plaintiff's motions for
reconsideration of the order of dismissal (Docs. 10 and 12);
motion to stay (Doc. 14); motion to withdraw motion to stay
(Doc. 15); motion to appoint counsel (Doc. 16); and motion
for leave to amend the complaint (Doc. 19).
Motions for Reconsideration of Order of Dismissal (Docs. 10
motions for reconsideration, plaintiff contends that payment
of the initial filing fee was delayed because he is an inmate
of the Kansas Department of Corrections (KDOC), rather than
the Washington County Jail where he was confined at the time
and where the order directing payment from plaintiff's
inmate account was sent. Washington County Jail officials
eventually forwarded the order to KDOC, which on July 13,
2017, transmitted plaintiff's $1.00 initial partial
filing fee to the court. To date, plaintiff has paid $17.90
of the $350.00 filing fee. For good cause shown, the court
sustains plaintiff's motions for reconsideration and
vacates the order and judgment dated April 18, 2017 (Docs. 7
Motion to Stay (Doc. 14) and Motion to Withdraw Motion to
Stay (Doc. 15).
motion to stay, plaintiff asks the court to stay the action
for 120 days to allow plaintiff to file a notice of claim
under K.S.A. § 12-105b(d). In the motion to withdraw the
motion to stay, plaintiff states that he filed the motion to
stay because he did not know when he filed it that federal
civil rights claims are not subject to the Kansas Tort Claims
Act (K.S.A. § 12-105b(d)). For good cause shown, the
court sustains plaintiff's motion to withdraw (Doc. 15)
and dismisses plaintiff's motion to stay (Doc. 14).
Motion to Appoint Counsel (Doc. 16).
is no constitutional right to appointment of counsel in a
civil action. 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
appointment of counsel. Steffey v. Orman, 461 F.3d
1218, 1223 (10th Cir. 2006) (citing Hill v. SmithKline
Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004)).
The court has considered the potential merit of
plaintiff's claims along with other pertinent factors,
and finds that appointment of counsel is not warranted at
Motion to Amend the Complaint (Doc 19).
seeks leave to file an amended complaint to clarify the
issues in the suit, dismiss certain claims and defendants and
add two additional defendants. Fed.R.Civ.P. 15 governs
amendments to pleadings general. Under Fed.R.Civ.P.
15(a)(1)(B), a party may amend his pleading as a matter of
course within 21 days after service of a responsive pleading
or a motion under Rule 12(b), (e), or (f). Because service in
this case has not yet occurred, plaintiff is entitled to
amend his pleading as a matter of course. Accordingly, the
court grants plaintiff's motion and directs the Clerk to
file plaintiff's proposed Amended Complaint and to
dismiss defendants Howard Y. Chang, Roya Attari, Shannen M.
Larsen, Joel Anderson, Mathew S. Sinnwell, Michelle R.
Tunnell, Haley D. Brennanmen, Addison Pfannenstiel, Chad Day,
and Kim M. Reed.
Screening under 28 U.S.C. § 1915A.
amended complaint, plaintiff alleges his constitutional
rights were violated by Wichita police officers during an
arrest that occurred while he attempted to obtain medical
care at Via Christie Hospital St. Joseph, in Wichita, Kansas.
The arrest resulted in felony charges against plaintiff for
aggravated assault of a law enforcement officer and use of a
deadly weapon. In Count 1, plaintiff alleges that
defendants Brian Goward, Alex Bebb, and Samuel Floyd violated
his First Amendment right to petition to redress grievances.
Specifically, plaintiff contends that these defendants, along
with hospital personnel, falsified medical and legal
documents including police reports, and lied in an attempt to
“silence and sanction the plaintiff's first
amendments [sic] rights” - to prevent plaintiff from
taking legal action against them. In Count 2, plaintiff
alleges that defendants Goward, Bebb, and Floyd violated the
Fourth Amendment right to be free from unlawful seizure and
excessive use of force. Specifically, plaintiff contends he
was physically injured when these defendants used
unreasonable force while detaining and “hogtying”
plaintiff. Plaintiff alleges that defendants Goward, Bebb,
and Floyd beat and stabbed plaintiff while attempting to
arrest him, and allowed hospital personnel to injure him by
injecting plaintiff with a narcotic medicine without his
consent or approval. In Count 3, plaintiff alleges that
defendants Goward, Bebb, and Floyd violated his Fifth and
Fourteenth Amendment due process right “to be free from
unjustified and excessive force”. Specifically,
plaintiff contends that defendants denied plaintiff access to
medical treatment, failed to gather appropriate witness
statements, subjected plaintiff to unsafe conditions which
could have resulted in further injury, denied plaintiff a
phone call, and refused to provide plaintiff with a ride to
another hospital. In Count 4, plaintiff alleges that
defendants Goward, Bebb, and Floyd violated the Eighth
Amendment prohibition against cruel and unusual punishment by
hogtying plaintiff, placing him in a “spitmask”,
and beating and stabbing him. Plaintiff alleges that
defendant John Doe, the Wichita Police Chief, violated the
Eighth Amendment by authorizing objectively unreasonable
customs and practices which resulted in the misconduct by
defendants Goward, Bebb, and Floyd. Plaintiff also brings
supplemental state law claims for false arrest and
imprisonment, assault and battery, abuse of process,
negligence, and gross negligence. As relief, plaintiff seeks
$75, 000 in compensatory damages and $1.5 million dollars in
court is required by statute to screen the amended complaint
and to dismiss the amended complaint or any portion thereof
that is frivolous, fails to state a claim on which relief may
be granted, or seeks relief from a defendant immune from such
relief. 28 U.S.C. § 1915A(a) and (b); 28 U.S.C. §
1915(e)(2)(B). “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, 48-49 (1988)(citations omitted); Northington v.
Jackson, 973 F.2d 1518, 1523 (10th Cir.
1992). A pro se party's complaint must be given a liberal
construction. Haines v. Kerner, 404 U.S. 519, 520
(1972). However, a party proceeding pro se has “the
burden of alleging sufficient facts on which a recognized
legal claim could be based.” Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991). Accepting