United States District Court, D. Kansas
PATRICK C. LYNN, Plaintiff,
ANTHONY McCURRIE, et al., Defendants.
THOMAS MARTEN U.S. DISTRICT JUDGE
Patrick C. Lynn, is a prisoner currently housed at Hutchinson
Correctional Facility in Hutchinson, Kansas
(“HCF”). Plaintiff proceeds pro se and has paid
the filing fee in full. This matter is before the Court on
various motions filed by Plaintiff.
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 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 El Dorado
Correctional Facility in El Dorado, Kansas
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 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. On August 30, 2017,
the Court granted Plaintiff's motion to amend his
complaint (Doc. 46), directing Plaintiff to file his amended
complaint by October 20, 2017. Plaintiff filed a motion for
an extension of time to file his amended complaint, and the
Court granted him an extension of time to November 20, 2017,
to file his amended complaint. (Doc. 50.) Plaintiff was
transferred to HCF on November 27, 2017. (Doc. 60.) Plaintiff
has now filed various motions seeking to stay the
proceedings, for an extension of time, and requesting
appointment of counsel and a video-teleconference hearing.
Motion for Temporary Stay (Doc. 51); Motion for Extension of
Time (Doc. 59); Motions for Hearings (Docs. 52, 53, 54, and
55); and Motion for Grand Jury Appearance (Doc.
alleges that on October 25, 2017, CSI Palm entered
Plaintiff's cell at EDCF after Plaintiff left to shower.
(Doc. 51, at 1.) Plaintiff's revisions for his amended
complaint were on top of Plaintiff's desk. Palm ransacked
Plaintiff's files and documents and trashed
Plaintiff's work product. Plaintiff alleges that he
cannot start over in preparing his amended complaint without
protective orders. Plaintiff acknowledges that he was charged
with rules violations on October 25, 2017, and attaches his
disciplinary report. Id. at 17.
alleges that during the ransacking incident, his legal files
were “dumped atop [his] cell desk” and
“emptied from the file folders and dumped/disarrayed in
a pile atop [his] desk.” (Doc. 52, at 1.) Plaintiff
seeks a hearing, alleging that he is being denied writing
paper, pen, and legal postage credit to write his attorney or
the courts. Id. at 2. The Court notes that Plaintiff
has filed numerous documents with this Court, and his
pleadings filed since November 1, 2017, total over 180 pages.
seeks an extension of time to file his amended complaint,
expressing concern that some of his documents submitted to
ECDF staff were not filed with the Court. The Court will
grant Plaintiff's request to stay the deadlines in the
case and will grant him an extension of time to file his
amended complaint. This will give Plaintiff time to get his
legal work product in order for filing. The Court also
directs the Clerk to provide Plaintiff with a copy of the
docket in this case.
requests for a hearing and to appear before a grand jury are
based on his disciplinary issues arising from the October 25,
2017 incident, as well as other grievances he has filed
relating to his conditions of confinement. These issues,
arising after Plaintiff filed the instant case, must be
exhausted through the administrative remedies procedures
available to Plaintiff before being brought before the Court.
After exhaustion, Plaintiff's claims regarding his
conditions of confinement should be submitted pursuant to a
properly filed complaint or, if appropriate, as part of his
Amended Complaint in this case. The Court denies
Plaintiff's requests for a hearing and to appear before a
Motion to Appoint Counsel (Doc. 56) and Correction (Doc.
seeks appointment of counsel, alleging that he needs
assistance in completing and filing his amended complaint due
to his legal paperwork being ransacked and his legal pad with
25 to 30 pages of his halfway completed amended complaint
being confiscated. The Court has granted Plaintiff's
request for an extension of time to file his amended
complaint. Plaintiff has also submitted a draft of his
Amended Complaint that he submits as proof of his due
diligence. See Doc. 59-1.
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