United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW U.S. SENIOR DISTRICT JUDGE
Marcus Drake is a state prisoner housed at El Dorado
Correctional Facility (WCF) in El Dorado, Kansas. Mr. Drake
and eight (8) other plaintiffs filed this § 1983 action
against eleven (11) defendants alleging interference with
their right to free exercise of religion.
filing the complaint, the Court on July 23, 2018, issued
notices of deficiency to all nine (9) plaintiffs.
See ECF Nos. 4 through 12. The notices stated either
that they had not submitted the financial information
required to accompany a motion for leave to proceed in forma
pauperis, or that they had not paid the filing fee or
submitted a motion to proceed in forma pauperis. All notices
ordered the plaintiffs to respond by August 22, 2018. As of
the date of this Order, only two plaintiffs have responded to
the notice of deficiency: Mr. Drake submitted the required
financial information as directed, and Mr. Iori submitted an
ifp motion but has not filed the required financial
Rule 41(b) of the Federal Rules of Civil Procedure, a
district court may dismiss an action “if the plaintiff
fails to prosecute or to comply with these rules or a court
order.” Fed.R.Civ.P. 41(b). Because one plaintiff has
complied with the Court's order, this matter is not
dismissed. However, the following plaintiffs who have failed
to comply are dismissed without prejudice for lack of
prosecution: Ryan Lee, Cliff Swarthout, John Mistler, Corey
Barfoot, Gary Iori, David Smith, Jacob Ott, and Steven
Schultz. Mr. Iori's motion for leave to proceed in forma
pauperis (ECF No. 16) is denied without prejudice.
Drake's motions for leave to proceed in forma pauperis
(ECF No. 2 and 14) are granted. The Court assesses an initial
partial filing fee of $25.50, calculated under 28 U.S.C.
§ 1915(b)(1). Mr. Drake is granted fourteen (14) days
from receipt of this order to submit the fee. Any objection
to this order must be filed on or before the date payment is
due. The failure to pay the fee as directed may result in the
dismissal of this matter without further notice. Plaintiff
Drake remains obligated to pay the remainder of the $350.00
filing fee. The agency having custody of Plaintiff shall
forward payments from Plaintiff's account in installments
calculated under 28 U.S.C. § 1915(b)(2).
to File Amended Complaint (ECF Nos. 13 and 18)
Drake has filed two motions to amend the complaint (ECF No.
13 and 18). Both motions describe numerous changes Plaintiff
intends to make to the complaint, but Plaintiff did not
attach an amended complaint to either motion. Although
Plaintiff may amend his complaint one time without
leave of Court (see Fed. R. Civ. P. 15(a)(1)), he
must actually file an amended complaint.
amended complaint must be on the Court-approved form and must
include all allegations and claims that Plaintiff intends to
pursue in this action, including those to be retained from
the original complaint. This is because an amended complaint
completely supersedes the original complaint and renders the
original complaint of no legal effect. Franklin v. Kansas
Dep't of Corr., 160 Fed.Appx. 730, 733-34
(10th Cir. 2005), citing Miller v. Glanz, 948 F.2d
1562, 1565 (10th Cir. 1991); Gilles v. United
States, 906 F.2d 1386, 1389 (10th Cir. 1990).
Plaintiff does not need leave of Court to file an amended
complaint at this time and because he attempts to make
changes to the complaint through the motions to amend, his
motions are denied.
for Orders (ECF No. 3)
filing, Plaintiff Drake asks the Court to order the
defendants to stop harassing, targeting, and intimidating
members of the Asatru Religion call-out at WCF.
movant seeking a preliminary injunction to remedy an alleged
constitutional violation must establish “four factors:
(1) a likelihood of success on the merits [of his described
claim]; (2) a likelihood that [he] will suffer irreparable
harm in the absence of preliminary relief; (3) that the
balance of equities tips in [his] favor; and (4) that the
injunction is in the public interest.” White v.
Kansas Dep't of Corr., 617 Fed.Appx. 901, 904 (10th
Cir. 2015) (quoting RoDa Drilling Co., 552 F.3d at
1208). At this point, the Court cannot find that success on
the merits is likely and or that Plaintiff will suffer
irreparable harm in the absence of injunctive relief. As a
result, Plaintiff's motion is denied without prejudice.
for Preliminary ...