Filed: Mar. 07, 2018
Latest Update: Mar. 03, 2020
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT March 7, 2018 _ Elisabeth A. Shumaker Clerk of Court CHRISTOPHER DAVID BROWN, Plaintiff - Appellant, v. No. 17-3158 (D.C. No. 5:16-CV-03132-SAC-DJW) JAMES HEIMGARTNER, Warden, (D. Kan.) El Dorado Correctional Facility, in his individual and official capacity; RAY ROBERTS, Secretary of Corrections for KDOC, in his individual and official capacity; DOUGLAS W. BURRIS, Secretary of Corrections Des
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT March 7, 2018 _ Elisabeth A. Shumaker Clerk of Court CHRISTOPHER DAVID BROWN, Plaintiff - Appellant, v. No. 17-3158 (D.C. No. 5:16-CV-03132-SAC-DJW) JAMES HEIMGARTNER, Warden, (D. Kan.) El Dorado Correctional Facility, in his individual and official capacity; RAY ROBERTS, Secretary of Corrections for KDOC, in his individual and official capacity; DOUGLAS W. BURRIS, Secretary of Corrections Desi..
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 7, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
CHRISTOPHER DAVID BROWN,
Plaintiff - Appellant,
v. No. 17-3158
(D.C. No. 5:16-CV-03132-SAC-DJW)
JAMES HEIMGARTNER, Warden, (D. Kan.)
El Dorado Correctional Facility, in his
individual and official capacity; RAY
ROBERTS, Secretary of Corrections for
KDOC, in his individual and official
capacity; DOUGLAS W. BURRIS,
Secretary of Corrections Designee, in his
individual and official capacity; PAUL
SNYDER, Deputy Warden, El Dorado
Correctional Facility, in his individual and
official capacity; GARY WILSON, Deputy
Warden, El Dorado Correctional Facility,
in his individual and official capacity;
SUSAN R. GIBREAL, Deputy Warden,
El Dorado Correctional Facility, in her
individual and official capacity; FRED
EARLY, Deputy Warden, El Dorado
Correctional Facility, in his individual and
official capacity; JARRED WATSON,
Deputy Warden, El Dorado Correctional
Facility, in his individual and official
capacity; ROBERT SAPIEN, Unit Team
Manager, El Dorado Correctional Facility,
in his individual and official capacity;
KATI PRICE, Mail Room Staff, El Dorado
Correctional Facility, in her individual and
official capacity; LEANDRE MCCLUER,
Mail Room Staff, El Dorado Correctional
Facility, in her individual and official
capacity; S. POSTOVITS, Mail Room
Staff, El Dorado Correctional Facility, in
her individual and official capacity, a/k/a
Jane Postovits; DALE R. CALL, Mail
Review Officer, El Dorado Correctional
Facility, in his individual and official
capacity; MARSHA BOS, Mail Review
Officer, El Dorado Correctional Facility,
in her individual and official capacity;
C. JANE ST. PETER, Unit Team,
El Dorado Correctional Facility, in her
individual and official capacity; KEVIN
EDWARDS, Mental Health Staff,
El Dorado Correctional Facility, in his
individual and official capacity; AMANDA
KING-BENAWAY, Mental Health Staff,
El Dorado Correctional Facility, in her
individual and official capacity; SUSAN
DELAP, Clinical Administrator, El Dorado
Correctional Facility, in her individual and
official capacity; COLETTE
WINKELBAUER, Publication Reviewer,
Lansing Correctional Facility, in her
individual and official capacity; JIM
COLLINS, Publication Reviewer, Lansing
Correctional Facility, in his individual and
official capacity; MICHAEL J. SMITH,
Legal Counsel, El Dorado Correctional
Facility, in his individual and official
capacity; MARY NELSON, Mail Room
Staff, Hutchinson Correctional Facility,
in her individual and official capacity;
PATTY KEEN, Mail Room Staff,
Hutchinson Correctional Facility, in her
individual and official capacity;
A. AYALA-PAGAN, KDOC Central
Office Secretary of Corrections Designee,
in her individual and official capacity;
JOHNNIE GODDARD, Deputy Secretary
of Corrections, in his individual and
official capacity; JACK CAUBLE,
Business Administrator, El Dorado
Correctional Facility, in his individual and
official capacity; MIKE DRAGOO, Major,
El Dorado Correctional Facility, in his
individual and official capacity; PHILLIP
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A. PATTERSON, Unit Team, El Dorado
Correctional Facility, in his individual and
official capacity; JARRIS PERKINS, Unit
Team, El Dorado Correctional Facility, in
his individual and official capacity;
ALLISON AUSTIN, Unit Team,
El Dorado Correctional Facility, in her
individual and official capacity; LARRY
HOSHAW, Unit Team Manager,
El Dorado Correctional Facility, in his
individual and official capacity; TAMI
MARTIN, Unit Team Manager, El Dorado
Correctional Facility, in her individual and
official capacity; TIMOTHY RANDA,
Segregation Lieutenant, El Dorado
Correctional Facility, in his individual and
official capacity; RANDOLPH
BUCHANAN, Disciplinary Hearing
Officer, El Dorado Correctional Facility, in
his individual and official capacity;
RANDOLPH JOHNSON, Disciplinary
Hearing Officer, El Dorado Correctional
Facility, in his individual and official
capacity; RYAN D. GEAN, Correctional
Guard, El Dorado Correctional Facility, in
his individual and official capacity;
NICHOLAS D. WANER, Correctional
Guard, El Dorado Correctional Facility, in
his individual and official capacity; GAGE
CLASEN, Correctional Guard, El Dorado
Correctional Facility, in his individual and
official capacity; TRENT GUNTER,
PREA Coordinator, El Dorado Correctional
Facility, in his individual and official
capacity; JOHN DARNELL, Employed by
Corizon at El Dorado Correctional Facility,
in his individual and official capacity;
MAYA C. BROWN, Correctional Guard,
El Dorado Correctional Facility, in her
individual and official capacity;
TOM HERMRECK, EAI at El Dorado
Correctional Facility, in his individual and
official capacity; JOHN CANNON, EAI
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at El Dorado Correctional Facility, in his
individual and official capacity; ANGELA
F. GREENWOOD, Correctional Guard,
El Dorado Correctional Facility, in her
individual and official capacity; ASHLEY
E. MCKEEN, Correctional Guard,
El Dorado Correctional Facility, in her
individual and official capacity; LYLE F.L.
SHERWOOD, Correctional Guard,
El Dorado Correctional Facility, in his
individual and official capacity; GRACE
WHITESIDE, Correctional Guard,
El Dorado Correctional Facility, in her
individual and official capacity; DUSTIN
RANDOLPH, Correctional Guard,
El Dorado Correctional Facility, in his
individual and official capacity; BILLIE
GREY, Correctional Guard, El Dorado
Correctional Facility, in his individual and
official capacity; KEVIN PAIGE,
Correctional Guard, El Dorado
Correctional Facility, in his individual and
official capacity; DEANE W. DONLEY,
Deputy Warden, El Dorado Correctional
Facility, in his individual and official
capacity; ANDREW JOHNSON,
Correctional Guard, El Dorado
Correctional Facility, in his individual and
official capacity; TYLER A. GOODRICH,
Correctional Guard, El Dorado
Correctional Facility, in his individual and
official capacity; TALON C.
NORDQUIST, Correctional Guard,
El Dorado Correctional Facility, in his
individual and official capacity; BROOK
HAUBENSTEIN, Nurse, El Dorado
Correctional Facility, in her individual and
official capacity; BRIAN C. BENAWAY,
Correctional Guard, El Dorado
Correctional Facility, in his individual and
official capacity; JOHN HUCKABEE,
Correctional Guard, El Dorado
Correctional Facility, in his individual and
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official capacity; TODD WELDON,
Director of Nursing, El Dorado
Correctional Facility, in his individual and
official capacity; SONNY LEE, Guard,
El Dorado Correctional Facility, in his
individual and official capacity; JOHN
DERRINGER, Corizon Nurse, El Dorado
Correctional Facility, in his individual and
official capacity; JAMES GRIFFITTS,
EAI, El Dorado Correctional Facility, in
his individual and official capacity; JAIME
TRAVNICEK, EAI, El Dorado
Correctional Facility, in her individual and
official capacity; JOHN/JANE DOES (1),
Gym and yard Staff, El Dorado
Correctional Facility, in their individual
and official capacity; JOHN/JANE DOES
(2), Maintenance, El Dorado Correctional
Facility, in their individual and official
capacity; JOHN/JANE DOES (3), EAI at
El Dorado Correctional Facility, in their
individual and official capacity,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, HARTZ, and McHUGH, Circuit Judges.
_________________________________
Christopher David Brown, a prisoner proceeding pro se, filed this action under
42 U.S.C. § 1983 against defendants at the El Dorado Correctional Facility and the
*
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 therefore
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 consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
5
Kansas Department of Corrections. His lengthy complaint named a large number of
defendants and included voluminous attachments. A magistrate judge screened the
complaint, see 28 U.S.C. § 1915A, identified multiple deficiencies,1 ordered him to
show cause why his complaint should not be dismissed, and required him to file an
amended complaint.
On review of the magistrate judge’s order, the district court agreed that the
initial complaint was deficient and dismissed it. See 28 U.S.C. § 1915A(b)(1)
(requiring dismissal of prisoner complaint seeking relief from officer or employee of
government entity that fails to state a claim on which relief may be granted). It then
screened Mr. Brown’s amended complaint, found it to be deficient, and dismissed it
without prejudice as well. It also denied a number of Mr. Brown’s motions,
including motions seeking the appointment of counsel.
The district court ordered Mr. Brown to file a second amended complaint. He
ultimately failed to do so, but he filed four successive motions seeking additional
time to comply with the district court’s order. The district court granted his first
three motions, warning him that it would be reluctant to grant further extensions, then
1
The magistrate judge concluded the complaint violated Rule 8 of the Federal
Rules of Civil Procedure because it did not contain a short and plain statement of
Mr. Brown’s claims. It violated a District of Kansas local rule because it was not
submitted on court-approved forms. Instead, it referred the court to attached pages,
which contained “handwritten, run-together, sometimes illegible and certainly prolix
statements,” which were not separated into distinct counts. R. at 890-91. The
complaint contained 750 pages of unnecessary exhibits, some of them duplicates. On
the merits, it failed to adequately allege personal participation by each defendant and
to allege facts plausibly showing that Mr. Brown had been injured by their actions.
In addition, some of the claims appeared to be barred by the statute of limitations.
6
denied the fourth. It then dismissed this action without prejudice. Mr. Brown
appeals. We have jurisdiction, see 28 U.S.C. § 1291, and affirm.
We review de novo the district court’s dismissals under 28 U.S.C. § 1915A.
See Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009). To state a claim, a
complaint “must contain ‘a short and plain statement of the claim showing that the
pleader is entitled to relief.’” Ghailani v. Sessions,
859 F.3d 1295, 1303 (10th Cir.
2017) (quoting Fed. R. Civ. P. 8(a)(2)). “[O]nly a complaint that states a plausible
claim for relief will survive a motion to dismiss.”
Id. at 1304 (brackets and internal
quotation marks omitted). We construe Mr. Brown’s pro se filings liberally, but do
not serve as his advocate. See James v. Wadas,
724 F.3d 1312, 1315 (10th Cir.
2013).
In his appeal brief, Mr. Brown re-asserts his allegations against the defendants
without specifically challenging the district court’s bases for dismissing his
complaints. These allegations largely fail to specify what each individual defendant
did to injure him and when. For the reasons stated in its order of January 31, 2017,
we conclude the district court properly dismissed both the original and amended
complaints.
Construed liberally, Mr. Brown’s brief also challenges the district court’s
refusal to grant him a fourth extension of time to file a second amended complaint.
“We review the denial of an extension of time for an abuse of discretion.” Rachel v.
Troutt, 820 F.3d 390, 394 (10th Cir. 2016). We find no abuse of discretion here. To
the contrary, the district court was exceptionally patient.
7
The district court may grant an extension of time “for good cause.” Id.
(quoting Fed. R. Civ. P. 6(b)(1)). The district court had already provided Mr. Brown
more than 100 days to file a second amended complaint. During that period, and
before, he had filed hand-written pleadings of substantial length as well as prison
grievances, despite alleging problems with hand pain and with his mental health.
In his appeal brief, Mr. Brown complains the defendants prevented him from
accessing the courts by destroying his legal papers, including an amended complaint
he prepared. But he provides no specifics about when this complaint was destroyed,
by whom, and why its destruction prevented him from filing a second amended
complaint by the repeatedly extended deadline. Under these circumstances, we find
no abuse of discretion in the district court’s denial of a fourth extension of time for
Mr. Brown to file a second amended complaint.
Read liberally, Mr. Brown’s opening brief also challenges the district court’s
denial of his motions for appointment of counsel, for a temporary restraining order or
preliminary injunction, to lodge documents with the district court clerk, to confirm
that certain documents were filed with the district court, to answer his questions or
clarify certain matters for him, and to reassign the case to a different judge.
Mr. Brown has not shown that the district court erred in denying any of these
motions. To the contrary, the district court considered the many motions he filed and
resolved them patiently and appropriately.
We affirm the district court’s judgment. All pending appellate motions are
denied. The district court previously granted Mr. Brown leave to proceed in forma
8
pauperis on appeal, and we remind him of his obligation to continue making partial
payments until the entire filing fee has been paid.
Entered for the Court
Harris L Hartz
Circuit Judge
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