United States District Court, D. Kansas
KELLY N. LABELLE, Plaintiff,
FNU MIKELSON, et al., Defendants.
CROW U.S. SENIOR DISTRICT JUDGE.
brings this pro se civil rights action pursuant to
42 U.S.C. § 1983. The Court granted Plaintiff leave to
proceed in forma pauperis. Plaintiff states in his Complaint
that he will need to amend his complaint to add additional
counts. The Court will grant Plaintiff's request and give
him additional time to file an amended complaint.
alleges that he was brought into the Butler County Detention
Center (“BCDC”) as a pretrial detainee due to a
traffic ticket. Plaintiff claims he was immobile and suffered
from heart conditions when he entered the facility.
Plaintiff's “life vest” and money vanished.
Plaintiff was denied doctor-ordered physical therapy.
Deputies Leve and Sgt. Mikelson assaulted Plaintiff, injuring
his foot, shoulder and knee. Although Plaintiff couldn't
walk, “she” said “she” was going to
break Plaintiff's other leg if he didn't keep up with
their pace. Leve threatened to spray and taze Plaintiff, even
though Plaintiff was not a threat because he was immobile.
hospital stated that Plaintiff had a hand sprain and needed
an MRI. Dr. Gary ignores the records and is unaware of them,
and denies Plaintiff proper medication by changing his
prescription. Dr. Gary denies Plaintiff's nitroglycerin
and gives him beta blockers instead. Plaintiff's MRI was
ordered on July 7, but he has still not received it. Deputy
Mueller requested to view Plaintiff's sexual organs, used
a hand gesture to assimilate a sexual action, and asked if
Plaintiff's penis was any larger than this. Plaintiff
made reports to staff, but Detective McGuire “buried
them” and called Plaintiff a liar. Plaintiff claims he
is living on the floor of his isolation cell and
“dragging himself through his own urine.” Until
July 18, Plaintiff was denied any form of written
communication by Sgt. Mikelson. Plaintiff has also been
denied access to the law library.
states that he will need to amend his complaint when he has
paper available. The Court will give Plaintiff the
opportunity to file a complete and proper Amended Complaint
upon court-approved forms. 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 (17-3137-SAC) at the top of the first
page of his Amended Complaint.
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's current
Complaint is deficient in that it refers to “she”
instead of naming the defendant; it includes an allegation
that Plaintiff was denied access to the law library, without
alleging who denied him access; it fails to allege who is
responsible for his vest and money disappearing; it fails to
identify who is responsible for and what the facts are
surrounding Plaintiff's claim that he is living on the
floor of his isolation cell and “dragging himself
through his own urine.” Plaintiff fails to allege how
Defendants Ramsey, Nurse, Brooke, and Wilmite violated
Plaintiff's constitutional rights. Plaintiff's claims
must allege sufficient additional facts to show a federal
also joins various claims in his Complaint, including an
alleged assault, the failure to provide medical care, and an
alleged sexual harassment. Plaintiff must 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.
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, 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.”).
adherence in prisoner suits to the federal rules regarding
joinder of parties and claims prevents “the sort of
morass [a multiple claim, multiple defendant] suit
produce[s].” Id. It also prevents prisoners
from “dodging” the fee obligations and the three
strikes provisions of the Prison Litigation Reform Act.
Id. (Rule 18(a) ensures “that prisoners pay
the required filing fees-for the Prison Litigation Reform Act