Filed: Jul. 14, 2020
Latest Update: Jul. 14, 2020
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT July 14, 2020 _ Christopher M. Wolpert Clerk of Court PATRICK C. LYNN, Plaintiff - Appellant, v. No. 19-3090 (D.C. No. 5:17-CV-03041-JWB-KGG) ANTHONY MCCURRIE, Lansing (D. Kan.) Correctional Facility, in his individual capacity; FNU FORTIER, Lansing Correctional Facility, in his individual capacity; DEREK SWEIGART, Lansing Correctional Facility, in his individual capacity; JOHN SPEER, Lansing
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT July 14, 2020 _ Christopher M. Wolpert Clerk of Court PATRICK C. LYNN, Plaintiff - Appellant, v. No. 19-3090 (D.C. No. 5:17-CV-03041-JWB-KGG) ANTHONY MCCURRIE, Lansing (D. Kan.) Correctional Facility, in his individual capacity; FNU FORTIER, Lansing Correctional Facility, in his individual capacity; DEREK SWEIGART, Lansing Correctional Facility, in his individual capacity; JOHN SPEER, Lansing C..
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 14, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
PATRICK C. LYNN,
Plaintiff - Appellant,
v. No. 19-3090
(D.C. No. 5:17-CV-03041-JWB-KGG)
ANTHONY MCCURRIE, Lansing (D. Kan.)
Correctional Facility, in his
individual capacity; FNU FORTIER,
Lansing Correctional Facility, in his
individual capacity; DEREK
SWEIGART, Lansing Correctional
Facility, in his individual capacity;
JOHN SPEER, Lansing Correctional
Facility, in his individual capacity;
LUCAS SERRANO, Lansing
Correctional Facility, in his
individual capacity; DAVID
SMITH, Lansing Correctional
Facility, in his individual capacity;
RYAN SHEPPARD, Lansing
Correctional Facility, in his
individual capacity; BRADLEY
BOYD, Lansing Correctional
Facility, in his individual capacity;
REX PRYOR, Lansing Correctional
Facility, in his individual capacity;
ANDREW LUCHT, Lansing
Correctional Facility, in his
individual capacity; COLETTE
WINKELBAUER, Lansing
Correctional Facility, in her
individual capacity; DAN EAST,
Lansing Correctional Facility, in his
individual capacity; CHRIS ROSS,
Lansing Correctional Facility, in his
individual capacity; TODD
WALTERS, Lansing Correctional
Facility, in his individual capacity;
SHERRI PRICE, Lansing
Correctional Facility, in her
individual capacity; WADE
SCHMIERER, Lansing Correctional
Facility, in his individual capacity;
CHRIS HUNT, Lansing Correctional
Facility, in his individual capacity;
FNU AYALA-PAGEN, Lansing
Correctional Facility, in her
individual capacity; SVEN
HANSON, Lansing Correctional
Facility, in his individual capacity;
JEFFREY BAXTER, Lansing
Correctional Facility, in his
individual capacity; RICHARD
MEIKLE, Lansing Correctional
Facility, in his individual capacity;
JOHN BAILEY, Lansing
Correctional Facility, in his
individual capacity; MIKE BILAR,
Lansing Correctional Facility, in his
individual capacity; FNU
ONTIVEROS, Lansing Correctional
Facility, in his individual capacity;
FNU STOGSDILL, Lansing
Correctional Facility, in his
individual capacity; FNU ZWART,
Lansing Correctional Facility, in his
individual capacity; GREG
RUSSELL, Lansing Correctional
Facility, in his individual capacity;
DANNY LASCON, Lansing
Correctional Facility, in his
individual capacity; FNU TINSLEY,
Lansing Correctional Facility, in his
individual capacity; FNU HART,
Lansing Correctional Facility, in his
individual capacity; JEFF
GOLDRING, Lansing Correctional
Facility, in his individual capacity;
MELISSA WALDROCK, Lansing
Correctional Facility, in her
2
individual capacity; LINDSEY
WILDEMUTH, Lansing Correctional
Facility, in her individual capacity;
JAMES SKIDMORE, Lansing
Correctional Facility, in his
individual capacity; JAMES GIFT,
Lansing Correctional Facility, in his
individual capacity; FNU ERWIN,
Lansing Correctional Facility, in his
individual capacity; FNU MALONE,
Lansing Correctional Facility, in his
individual capacity; FNU GAY,
Lansing Correctional Facility, in his
individual capacity; THEODORE
THOMPSON, Lansing Correctional
Facility, in his individual capacity;
FNU KARLIN, Lansing Correctional
Facility, in his individual capacity;
FNU GOMEZ, Lansing Correctional
Facility, in his individual capacity;
DAVID BAKER, Lansing
Correctional Facility, in his
individual capacity; JAMES
HEINTZELMAN, Lansing
Correctional Facility, in his
individual capacity; JONATHAN
LUNSFORD, Lansing Correctional
Facility, in his individual capacity;
FNU CUNNINGHAM, Lansing
Correctional Facility, in his
individual capacity; FNU
PEMBERTON, Lansing Correctional
Facility, in his individual capacity;
FNU KARPIERZ, Lansing
Correctional Facility, in his
individual capacity; CARL
FORAKER, Lansing Correctional
Facility, in his individual capacity;
FNU WILLIAMS, Lansing
Correctional Facility, in his
individual capacity; JOHN DOES 1-
5, Lansing Correctional Facility, in
their individual capacity; SAM
3
CLINE, Lansing Correctional
Facility, in his individual capacity;
FNU LANGFORD, Hutchinson
Correctional Facility, in his
individual capacity; CLAY
VANHOOSE, Hutchinson
Correctional Facility, in his
individual capacity; FNU GORGER,
Hutchinson Correctional Facility, in
his individual capacity; FNU
LAKZADEH, Hutchinson
Correctional Facility, in his
individual capacity; FNU GLOVER,
Hutchinson Correctional Facility, in
his individual capacity; FNU
PELTER, Hutchinson Correctional
Facility, in his individual capacity;
FNU STIGGENS, Hutchinson
Correctional Facility, in his
individual capacity; FNU WEST,
Hutchinson Correctional Facility, in
his individual capacity; FNU
BICKSLER, Hutchinson
Correctional Facility, in his
individual capacity; FNU
SHOULDERS, Hutchinson
Correctional Facility, in his
individual capacity; TREY
ROBINSON, Hutchinson
Correctional Facility, in his
individual capacity; JOHN DOES 6-
12, Hutchinson Correctional
Facility, in their individual
capacity; FNU HAUBENSTEIN, El
Dorado Correctional Facility, in his
individual capacity; FNU SISSELL,
El Dorado Correctional Facility, in
his individual capacity; JOHN
DOES, El Dorado Correctional
Facility, in their individual
capacity; JAMES HEIMGARTNER,
El Dorado Correctional Facility, in
his individual capacity; FNU
4
HERMRECK, El Dorado
Correctional Facility, in his
individual capacity; TAMMY
MARTEN, El Dorado Correctional
Facility, in his individual capacity;
RAY ROBERTS, Kansas Department
of Corrections, in his individual
capacity; JOHNNIE GODDARD,
Kansas Department of Corrections,
in his individual capacity; JOHN
SMITH, Kansas Department of
Corrections, in his individual
capacity; MARCI CAPPEL-
CHMIDLING, Kansas Department
of Corrections, in her individual
capacity; DOUG BURRIS, Kansas
Department of Corrections, in his
individual capacity; PAUL
CORBIER, Corizon Doctor, in his
individual capacity; JERRY
JORGENSON, Corizon, in his
individual capacity; ALICIA
CARDONA, Corizon Doctor, in her
individual capacity; FNU SAYEED,
Corizon Doctor, in his individual
capacity; FNU HARROD, Corizon
Doctor, in his individual capacity;
JANE DOES 1-2, Corizon Nurse, in
their individual capacity; FNU
EINERSON, Corizon Nurse, in her
individual capacity; FNU
STROBEL, Corizon Nurse, in her
individual capacity; DEB LUNDRY,
Corizon HSA, in her individual
capacity; JEFFREY RICE, Corizon
Nurse, in his individual capacity;
DUANE ROGER DENTON, Corizon
Nurse, in his individual capacity;
TIM MEADE, Corizon Nurse, in his
individual capacity; MISTY
KEOLAVONE, Corizon Mental
Health Supervisor, in her individual
capacity; LAUREN LUCHT,
5
Corizon HSA, in her individual
capacity; JESSICA MADDOX,
Corizon RN, in her individual
capacity; EMILY PETERSON,
Corizon RN, in her individual
capacity; JESSICA VANDYKE,
Corizon RN, in her individual
capacity; SEAN GOODMAN,
Corizon RN, in his individual
capacity; FNU SHELBY, Corizon
RN, in her individual capacity;
BRENDA JOHNSON, Corizon RN,
in her individual capacity; FNU
LATOYZ, Corizon LPN, in her
individual capacity; KELSI
DINNEY, Corizon LPN, in her
individual capacity; BRITTON
DELEON, Corizon RN, in her
individual capacity; COLLETTE
CURTIS, Corizon, in her individual
capacity; FNU CKEKE, Corizon
Doctor, in his individual capacity;
SUSAN DELAP, Corizon Nurse, in
her individual capacity; LINZIE
MENDOZA, Corizon RN, in her
individual capacity; VICKI
BRUNGARDT, SOC's Disciplinary
Appeals Designee, in her official
and individual capacity; JOE
NORWOOD, Current Secretary of
Corrections (Post March 2016), in
his official and individual capacity;
FNU ROBERTS, SST, Lansing
Correctional Facility, in his
individual and official capacity;
FNU ICKE, CSI, Lansing
Correctional Facility, in his
individual and official capacity;
FNU BAILEY, Captain (white man),
Lansing Correctional Facility, in his
individual and official capacity;
RON BAKER, Deputy Warden,
Lansing Correctional Facility, in his
6
individual and official capacity;
BRETT PETERSON, Policy
Compliance Officer, Lansing
Correctional Facility, in his
individual and official capacity;
FNU GOODMAN, Lieutenant/A&D
Supervisor, Lansing Correctional
Facility, in his individual and
official capacity; NICK BALL, Unit
Team, Lansing Correctional
Facility, in his individual and
official capacity; NATE BLANEY,
Unit Team Supervisor, Lansing
Correctional Facility, in his
individual and official capacity;
FNU SCHARTZ, CMII, Lansing
Correctional Facility, in his
individual and official capacity;
NATALIE PARKER, Unit Team
Manager, Lansing Correctional
Facility, in her individual and
official capacity; STUART
BAILEY, Current Major, Lansing
Correctional Facility, in his
individual and official capacity;
FNU BALL, Unit Team Supervisor
(now EAI Department), Lansing
Correctional Facility, in his
individual and official capacity;
RON IRWIN, Former EAI
Supervisor, Lansing Correctional
Facility, in his individual and
official capacity; FNU SHIPMAN,
Deputy Warden, Lansing
Correctional Facility, in his
individual and official capacity;
FNU NUSSBAUM, CO1, Lansing
Correctional Facility, in his
individual and official capacity;
CAROLE GOODMAN, Lieutenant,
Lansing Correctional Facility, in her
individual and official capacity;
FNU BAXTER, Lieutenant, Lansing
7
Correctional Facility, in his
individual and official capacity;
FNU BECK, CSI, Lansing
Correctional Facility, in his
individual and official capacity;
FNU HOOVER, SST, Lansing
Correctional Facility, in his
individual and official capacity;
MIKE BILAR, SST, Lansing
Correctional Facility, in his
individual and official capacity;
JOHN DOE 1-10, Lansing
Correctional Facility, in their
individual and official capacity;
JOHN DOES 1-20, Wrote retaliatory
& perjurous D/Rs and who
masqueraded as D/R hearing "staff
assistants" or accuser witnesses,
Lansing, Correctional Facility, in
their individual and official
capacity; D. SISCO, PREA
"Investigator Phony", Lansing
Correctional Facility, in his
individual and official capacity;
FNU HERSHBURGER, Current EAI
Supervisor, Lansing Correctional
Facility, in his individual and
official capacity; FNU BANFOOT,
Lieutenant, Lansing Correctional
Facility, in his individual and
official capacity; FNU BROWN,
Captain, Lansing Correctional
Facility, in his individual and
official capacity; FNU BAER, CSI,
Lansing Correctional Facility, in his
individual and official capacity;
FNU HAMLIN, CSI, Lansing
Correctional Facility, in his
individual and official capacity;
FNU FERGUSON, CS1, Lansing
Correctional Facility, in his
individual and official capacity;
JACK DOE, Librarian, Lansing
8
Correctional Facility, in his
individual and official capacity;
JOHN DOE 1-15, SST, El Dorado
Correctional Facility, in their
individual and official capacity;
FNU SCOTT, SST/CO2, El Dorado
Correctional Facility, in his
individual and official capacity;
FNU DOWLING, SST/CO1, El
Dorado Correctional Facility, in his
individual and official capacity;
FNU WEIMERS, Former
SST/MSGT, El Dorado Correctional
Facility, in his individual and
official capacity; FNU EVANS,
SST, El Dorado Correctional
Facility, in his individual and
official capacity; FNU GOAD, SST,
El Dorado Correctional Facility, in
his individual and official capacity;
FNU O'BRIEN, SST/MSGT, El
Dorado Correctional Facility, in his
individual and official capacity;
FNU O'BRIEN, EAI/SA, El Dorado
Correctional Facility, in his
individual and official capacity;
FNU MISHLER, Mailroom, El
Dorado Correctional Facility, in her
individual and official capacity;
FNU SAPIEN, Captain, El Dorado
Correctional Facility, in his
individual and official capacity;
FNU WALMSLEY, CMII, El Dorado
Correctional Facility, in his
individual and official capacity;
DEANE DONLEY, CMII, El Dorado
Correctional Facility, in her
individual and official capacity;
FNU GRIMMETT, CSI, El Dorado
Correctional Facility, in his
individual and official capacity;
FNU MANSFIELD, Captain, El
Dorado Correctional Facility, in his
9
individual and official capacity;
FNU SMITH, Major, El Dorado
Correctional Facility, in his
individual and official capacity;
TAMMY MARTIN, Unit Team
Manager, El Dorado Correctional
Facility, in her individual and
official capacity; RANDY
JOHNSON, CSI, El Dorado
Correctional Facility, in his
individual and official capacity;
ANDREW JOHNSON, CS1, El
Dorado Correctional Facility, in his
individual and official capacity;
MARIA BOS, CMII, El Dorado
Correctional Facility, in her
individual and official capacity;
KENNY MCGUIRE, Lieutenant, El
Dorado Correctional Facility, in his
individual and official capacity;
FNU FUOSS, Unit Team Supervisor,
El Dorado Correctional Facility, in
his individual and official capacity;
FNU PETERSON, Unit Team
Supervisor, El Dorado Correctional
Facility, in his individual and
official capacity; FNU
QUIDACHAY, Captain, El Dorado
Correctional Facility, in his
individual and official capacity;
FNU WHITESIDE, Former CS1, El
Dorado Correctional Facility, in his
individual and official capacity;
FNU KNIGHT, CO1, El Dorado
Correctional Facility, in his
individual and official capacity;
FNU LEON, CS1, El Dorado
Correctional Facility, in his
individual and official capacity;
JOHN DOES 1-7, Involved in
perjurous & retaliatory D/Rs,
denials of medical attention heart
attack symptoms emergenices, El
10
Dorado Correctional Facility, in
their individual and official
capacity; MARY NELSON, Deputy
Warden, El Dorado Correctional
Facility, in his individual and
official capacity; FNU RAFFERTY,
Unit Team Manager, El Dorado
Correctional Facility, in his
individual and official capacity;
FNU PETTY, CS1, El Dorado
Correctional Facility, in his
individual and official capacity;
FNU LYTTON, CS1, El Dorado
Correctional Facility, in his
individual and official capacity;
FNU SHEARBURN, Unit Team
Supervisor, El Dorado Correctional
Facility, in his individual and
official capacity; ANDREW PALM,
CS1, El Dorado Correctional
Facility, in his individual and
official capacity; FNU LINK, CO2,
El Dorado Correctional Facility, in
her individual and official capacity;
FNU BUCHANAN, Lieutenant, El
Dorado Correctional Facility, in his
individual and official capacity;
FNU HAMILTON, CO2, El Dorado
Correctional Facility, in his
individual and official capacity;
FNU LANDERS, CO1, El Dorado
Correctional Facility, in his
individual and official capacity;
FNU RIVARD, CO1, El Dorado
Correctional Facility, in his
individual and official capacity;
JONI COLE, Attorney, El Dorado
Correctional Facility, in her
individual and official capacity;
DAN SCHNURR, Warden,
Hutchinson Correctional Facility, in
his individual and official capacity;
FNU VIEYRA, CMIII, Hutchinson
11
Correctional Facility, in his
individual and official capacity;
TOMMY WILLIAMS, CMIII,
Hutchinson Correctional Facility, in
his individual and official capacity;
T. HACKNEY, Unit Team Manager,
Hutchinson Correctional Facility, in
his individual and official capacity;
FNU BENTLEY, Unit Team,
Hutchinson Correctional Facility, in
his individual and official capacity;
FNU GILES, CS1, Hutchinson
Correctional Facility, in his
individual and official capacity;
FNU KOOB, CO1, Hutchinson
Correctional Facility, in his
individual and official capacity;
FNU PRICE, Captain, Hutchinson
Correctional Facility, in his
individual and official capacity;
FNU POTTER, Former Captain,
Hutchinson Correctional Facility, in
his individual and official capacity;
FNU BROWN, Lieutenant,
Hutchinson Correctional Facility, in
his individual and official capacity;
FNU SEVEN, CS1, Hutchinson
Correctional Facility, in his
individual and official capacity;
JORDAN BELL, Unit Team
Manager, Hutchinson Correctional
Facility, in his individual and
official capacity; JOHN DOE 1-11,
SST, Hutchinson Correctional
Facility, in their individual and
official capacity; FNU SCOTT, RN,
Corizon Health, Lansing
Correctional Facility, in her
individual and official capacity;
JESSICA HOOD, LPN, Corizon
Health, Lansing Correctional
Facility, in her individual and
official capacity; FNU GEE, RN,
12
Corizon Health, Lansing
Correctional Facility, in her
individual and official capacity;
ALICIA MCCOLLOUGH, HSA,
Corizon Health, Lansing
Correctional Facility, in her
individual and official capacity;
FNU JOHNSON, RN, Corizon
Health, Lansing Correctional
Facility, in her individual and
official capacity; ALICIA
DOUGLAS-CHAHINE, Mental
Health Counselor, Corizon Health,
Lansing Correctional Facility, in her
individual and official capacity;
FNU OKEKE, Oncall Psychiatrist,
Corizon Health, Lansing
Correctional Facility, in his
individual and official capacity;
FNU NAWALNICK, Mental Health
Doctor, Corizon Health, Lansing
Correctional Facility, in his
individual and official capacity;
FNU MONFRED, Female Contract
Doctor, Corizon Health, Lansing
Correctional Facility, in her
individual and official capacity;
JANINE WHITE, APRN, Corizon
Health, Lansing Correctional
Facility, in her individual and
official capacity; JANE DOE, 1,
Mental Health Counselor, Corizon
Health, Lansing Correctional
Facility, in her individual and
official capacity; ASHLEY
BARNES, Mental Health Counselor,
Corizon Health, Lansing
Correctional Facility, in her
individual and official capacity;
JOHN DOE, 1, Former Male Mental
Health Counselor, Corizon Health,
Lansing Correctional Facility, in his
individual and official capacity;
13
LAURA GARDNER, RN, Corizon
Health, Lansing Correctional
Facility, in her individual and
official capacity; JANE DOE, 2,
Med Tech, Corizon Health, Lansing
Correctional Facility, in her
individual and official capacity;
FNU MORRIS, RN, Corizon Health,
El Dorado Correctional Facility, in
her individual and official capacity;
JANE DOES 1-7, Female LPNs and
RNs, Corizon Health, El Dorado
Correctional Facility, in their
individual and official capacity;
FNU WOLFE, RN, Corizon Health,
El Dorado Correctional Facility, in
her individual and official capacity;
FNU SOLARIO, Mental Health
Counselor, Corizon Health, El
Dorado Correctional Facility, in her
individual and official capacity;
KEVIN EDWARDS, Mental Health
Department Supervisor, Corizon
Health, El Dorado Correctional
Facility, in his individual and
official capacity; FNU GADBERRY,
Mental Health Counselor, Corizon
Health, El Dorado Correctional
Facility, in his individual and
official capacity; FNU KING,
Mental Health Counselor, Corizon
Health, El Dorado Correctional
Facility, in her individual and
official capacity; FNU
WILLIAMSON, Dentist, Corizon
Health, Hutchinson Correctional
Facility, in his individual and
official capacity; JANE DOE 3,
Dental Hygienist, Corizon Health,
Hutchinson Correctional Facility, in
her individual and official capacity;
JANE DOE 1-5, RN, Corizon
Health, Hutchinson Correctional
14
Facility, in their individual and
official capacity; CORIZON
HEALTH; JEFF COYLER, Kansas
Governor, in his official capacity;
DEREK SCHMIDT, Kansas
Attorney General, in his official
capacity; RUSS JENNINGS, Kansas
Representative, Corrections
Oversight Committee, in his official
capacity; BLAINE FINCH, Kansas
Representative, Judiciary Committee
Chairman, in his official capacity;
JOHN DOE 2, Leavenworth County
Sheriff, in his official capacity;
TODD THOMPSON, Leavenworth
County District Attorney, in his
official capacity; LIZ (LNU),
APRN, Corizon Health, Hutchinson
Correctional Facility, in her
individual and official capacity;
JOHN DOE 3, Butler County
Sheriff, in his official capacity;
MIKE DIVINNEY, Butler County
District Attorney, in his official
capacity; FNU HENDERSON, Reno
County Sheriff, in his official
capacity; FNU SCHROEDER, Reno
County District Attorney, in his
official capacity; J. DOE, KCOA
Chief Judge, in his official capacity;
LAWTON NUSS, Kansas Supreme
Court Chief Justice, in his official
capacity; STANTON HAZLETT;
KANSAS JUDICIAL
QUALIFICATIONS COMMISSION,
Members, in their official capacity;
KEVIN MORIARTY, Johnson
County District Court Chief Judge,
in his official capacity; FNU RYAN,
Johnson County District Court
Judge, in his official capacity; FNU
(LNU), 1, Kansas Judicial
Administrator, in their official
15
capacity; STATE OF KANSAS;
KANSAS DEPARTMENT OF
CORRECTIONS; STACY
SCHLIMMER, BIDS Attorney,
Overland Park, Kansas; KRISTEN
PATTY, BIDS Attorney, Wichita,
Kansas; PATRICIA SCALIA, BIDS
Director, State of Kansas; JOYCE
MORRISON, Kansas Appeal Court's
"Retention/Yes Vote" Campaign
Spokesperson for November 2016
General Election; STEPHEN
MCCALLISTER, Kansas US
Attorney, in his official capacity;
TOM BEALL, Former Kansas US
Attorney, in his official capacity;
ERIC JACKSON, Kansas FBI/SAIC,
in his official capacity; JEFF
SESSIONS, United States Attorney
General; DEPARTMENT OF
JUSTICE CIVIL RIGHTS
DIVISION,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BACHARACH, BALDOCK, and EID, Circuit Judges.
_________________________________
*
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially
assist in the determination of this appeal. See Fed. R. App. P.
34(a)(2); 10th Cir. R. 34.1(G). The case is thus ordered submitted
without oral argument.
This order and judgment is not binding precedent except under
the doctrines of law of the case, res judicata, and collateral estoppel.
It may be cited, however, for its persuasive value under
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
16
After Mr. Patrick Lynn filed a first amended complaint, the
district court found the pleading defective and ordered him to amend.
He didn’t, and the court dismissed the action for lack of prosecution.
Mr. Lynn appealed, and we dismissed the appeal for lack of
prosecution.
Mr. Lynn then moved under Federal Rule of Civil Procedure
60(b) to reopen the action, and the district court denied the motion.
Mr. Lynn appeals the denial of his Rule 60(b) motion, and we affirm.
1. Mr. Lynn violates an order to file a second amended
complaint.
Mr. Lynn is a state prisoner. Three years ago, he sued more
than 100 parties for damages. Mr. Lynn requested leave to file a first
amended complaint. The court granted leave but instructed Mr. Lynn
to comply with various procedural rules, including those governing
joinder of parties and claims:
[U]nder Rule 18(a), a plaintiff may bring multiple claims
against a single defendant. Under Rule 20(a)(2), he may
join in one action any other defendants who were involved
in the same transaction or occurrence and as to whom there
is a common issue of law or fact. He may not bring multiple
claims against multiple defendants unless the prescribed
nexus in Rule 20(a)(2) is demonstrated with respect to all
defendants named in the action.
R., Vol. 1 at 225. After three extensions of time, Mr. Lynn filed the
first amended complaint, which included 48 counts against hundreds
of parties.
17
The district court instructed Mr. Lynn that the first amended
complaint had violated (1) Rule 8’s requirement for a short and plain
statement of the claim and (2) the joinder requirements of Rules 18
and 20. Given these violations, the court ordered Mr. Lynn to file a
second amended complaint by July 20, 2018. The court cautioned that
“[f]ailure to comply with this order [would] likely result in dismissal
of this case without further notice.” R., Vol. 3 at 44.
Mr. Lynn obtained extensions of almost four months. On the
eve of the last deadline, Mr. Lynn filed a motion to stay his federal
action pending the resolution of a state-court action that he had
characterized as “an exact duplicate of the money damages claims at
bar in this case.” Id. at 68. He asserted that filing a second amended
complaint would be easier when he prevailed in his state-court
action.
The district court denied Mr. Lynn’s motion, stating:
The court is not convinced that a stay is warranted.
Plaintiff initiated this action and has a duty to diligently
prosecute his case. This case has been pending for over
twenty months, and Plaintiff has received multiple
extensions of time in this case. The Court’s most recent
order granting Plaintiff an extension of time noted that
Plaintiff requested a “final 30-day extension of time,” and
granted Plaintiff an extension of time to November 19,
2018, to file his second amended complaint. Due to the
delay in this case, the court denies Plaintiff’s request for a
stay, but will grant Plaintiff a brief extension of time to
file his second amended complaint. Failure to file a
proposed second amended complaint by this deadline will
18
subject this matter to dismissal for failure to prosecute
under Fed. R. Civ. P. 41(b).
Id. at 103-04 (citation omitted).
Mr. Lynn did not file a second amended complaint. So the
district court dismissed the action without prejudice for failure to
prosecute. See Fed. R. Civ. P. 41(b). Mr. Lynn appealed, and we
dismissed that appeal for lack of prosecution.
2. The district court denies Mr. Lynn’s Rule 60(b) motion.
Mr. Lynn then filed a Rule 60(b) motion to reopen his action in
district court. He cited Rules 60(b)(5) and 60(b)(6), which permit
relief from judgment when “(5) the judgment has been satisfied,
released, or discharged; it is based on an earlier judgment that has
been reversed or vacated, or applying it prospectively is no longer
equitable; or (6) any other reason that justifies relief.” Fed. R. Civ.
P. 60(b)(5), (6). Mr. Lynn attributed his delay to multiple heart
attacks, cancellation of surgeries, and inability to obtain legal files
from his attorney.
The district court denied the Rule 60(b) motion. The court
noted the multiple extensions and explained that
Mr. Lynn had failed to take advantage of the extra time
despite the warnings that noncompliance would result in
dismissal,
Mr. Lynn’s Rule 60(b) motion had simply rehashed his
earlier arguments, and
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the court had previously advised Mr. Lynn that he did not
need access to all of his legal files to excise unrelated
claims and defendants from his first amended complaint.
See Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1242
(10th Cir. 2006) (“Rule 60(b) relief is not available to allow a party
merely to reargue issues previously addressed to the court.”).
3. The district court also declines to appoint counsel.
Before filing his Rule 60(b) motion, Mr. Lynn also moved
twice for appointment of counsel. Both times, the district court
denied the motion without prejudice to refiling.
After the court denied the Rule 60(b) motion, Mr. Lynn also
moved for appointment of counsel in order to appeal. The court
denied this motion, too.
4. The district court acted within its discretion in denying the
Rule 60(b) motion.
On appeal, Mr. Lynn challenges the denial of his Rule 60(b)
motion. For this challenge, we apply the abuse-of-discretion
standard. Servants of the Paraclete v. Does, 204 F.3d 1005, 1009
(10th Cir. 2000). With its discretion, the district court should grant
relief under Rule 60(b) only in “extraordinary and . . . exceptional
circumstances.”
Id. (internal quotational marks omitted). We will
reverse the denial of a Rule 60(b) motion “only if we find a complete
absence of a reasonable basis and are certain that the decision is
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wrong.” Yapp v. Excel Corp., 186 F.3d 1222, 1232 (10th Cir. 1999)
(ellipsis and internal quotation marks omitted).
On appeal, we address the denial of Mr. Lynn’s Rule 60(b)
motion rather than the underlying judgment. See Servants of the
Paraclete, 204 F.3d at 1009. But in his appeal brief, Mr. Lynn argues
only that the district court erred by dismissing the first amended
complaint. This argument fails to address the relief that Mr. Lynn
requested in his Rule 60(b) motion or the district court’s reasons for
denying that motion.
Though we liberally construe Mr. Lynn’s pro se appeal brief,
we will not construct arguments for him. See Drake v. City of Fort
Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (“Despite the liberal
construction afforded pro se pleadings, the court will not construct
arguments or theories for the plaintiff in the absence of any
discussion of those issues.”). He has not challenged the
reasonableness of the district court’s reasons for denying the
Rule 60(b) motion. He thus fails to show that the district court
abused its discretion in denying relief under Rule 60(b).
5. We lack jurisdiction over the denials of Mr. Lynn’s requests
for counsel.
Mr. Lynn also argues that the district court should have
appointed counsel for him. But Mr. Lynn has appealed only the
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denial of his Rule 60(b) motion. See Dkt. 106 (notice of appeal). In
that motion, Mr. Lynn didn’t seek appointment of counsel.
Two of the requests had preceded the initial order dismissing
the case, and we dismissed that appeal for lack of prosecution. See
Part 1, above. We thus lack appellate jurisdiction over the denial of
these requests for counsel.
Mr. Lynn also argues that the district court erred in denying his
motion for appointment of appellate counsel. But Mr. Lynn made this
request after he filed the notice of appeal, and our jurisdiction is
limited to the rulings addressed in the notice. See Sports Unlimited,
Inc. v. Lankford Enters., Inc., 275 F.3d 996, 1003 (10th Cir. 2002).
So we lack appellate jurisdiction over this request for appointment of
counsel.
6. We also deny appointment of counsel in the appeal.
In seeking leave to proceed in forma pauperis, Mr. Lynn
includes a sentence requesting us to appoint counsel in the appeal
based on his inability to obtain his case file or needed legal
materials. The issues in the appeal are narrow, however, and
Mr. Lynn has not explained what parts of the case file are needed to
properly address the appeal. His appeal involves only the failure to
comply with the district court’s order. We thus decline to appoint
counsel for Mr. Lynn.
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Affirmed.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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