F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 19 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
PATRICK C. LYNN,
Plaintiff-Appellant,
v. No. 97-3370
(D.C. No. 97-CV-3173)
LARRY MCCLAIN, (D. Kan.)
Defendant-Appellee.
PATRICK C. LYNN,
Plaintiff-Appellant,
v. No. 97-3371
(D.C. No. 97-CV-3162)
LARRY MCCLAIN, Johnson County (D. Kan.)
Administration District Court Judge,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before PORFILIO , KELLY , and HENRY , Circuit Judges.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. These cases are
therefore ordered submitted without oral argument.
Plaintiff Patrick C. Lynn brought these actions seeking injunctive relief
under 42 U.S.C. § 1983 against the Honorable Larry McClain, administrative
judge of the district court of Johnson County, Kansas. The district court
concluded that plaintiff had failed to state a claim for relief and summarily
dismissed the cases pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Although it is yet
unclear whether we review a dismissal under § 1915(e)(2)(B)(ii) de novo, as we
would a dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6), see
Chemical Weapons Working Group, Inc. v. United States Dep’t of the Army , 111
F.3d 1485, 1490 (10th Cir. 1997), or for an abuse of discretion, as we would a
dismissal under § 1915(e)(2)(B)(i), the successor to § 1915(d), see Schlicher v.
Thomas , 111 F.3d 777, 779 (10th Cir. 1997), we conclude plaintiff’s arguments
fail under either standard.
Plaintiff is currently incarcerated in a Kansas state prison, having been
convicted in the Johnson County court in November 1996 of a variety of charges
including aggravated kidnaping and rape. He is an extremely active litigant. By
April 1997, before his direct criminal appeal had been resolved and possibly not
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even briefed, he had filed six civil lawsuits in Johnson County district court
against various individuals who had some involvement in his convictions, e.g., the
trial judge, his court-appointed counsel, the wife of a juror, the prosecutor, the
victim of the rape, and a witness, asserting various claims for denial of civil
rights, legal malpractice, conspiracy, and various other state torts. All pleadings
filed in these cases were apparently handwritten. As the district administrative
judge, defendant had assigned the cases to several different judges, including
himself. On April 11, 1997, defendant, again in his capacity as administrative
judge, issued an order informing plaintiff that his pleadings in six cases did not
comply with Kansas Supreme Court Rule 111 requiring, inter alia, that all
pleadings must be typed. Defendant ordered plaintiff to comply with the rule (and
an unrelated statute) by May 1 or the cases would be dismissed. On April 24,
plaintiff filed a petition for emergency injunctive relief in the Kansas Supreme
Court apparently challenging the order, and that petition was denied on April 29.
Plaintiff failed to comply with the order, and the cases were dismissed on May 6.
The district court rejected his handwritten notices of appeal for failure to comply
with Rule 111.
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In mid-May, plaintiff submitted for filing two typewritten suits that
apparently combined and revised four of the dismissed suits. 1
On May 27, the
State of Kansas, through its attorney general, petitioned the Johnson County
district court for an order imposing filing restrictions on plaintiff as a condition
of his bringing further actions in Kansas state courts. The basis for the state’s
petition was that the suits plaintiff had filed were malicious and frivolous and
were brought to retaliate against people involved in his criminal case. Defendant
entered an order imposing the filing restrictions that same day. On July 10, a
different judge entered an order allowing plaintiff to file legible, handwritten
pleadings. On July 31, defendant sent plaintiff a letter indicating that his
application to file the two typewritten suits did not comply with the filing
restrictions and requiring plaintiff to comply with the restrictions by submitting
information regarding the factual basis and probable cause supporting each claim
he was asserting.
1
About the same time he also filed in federal district court a § 1983 action
against the wife of the juror, the prosecutor and others. The district court
dismissed that case, district court No. 97-3213-GTV, as frivolous. In a
companion appeal to this one, we have affirmed the district court’s dismissal.
Lynn v. Dubowski , No. 97-3368 (10th Cir. October 19, 1998). In July 1997,
plaintiff filed case No. 97-3294-GTV in the district court asserting a § 1983 claim
against the public defender assigned to prosecute his direct criminal appeal. This
case also restated one of the dismissed state cases. The district court dismissed
this case for failure to state a claim under § 1915(e)(2)(B)(ii). Again, we have
affirmed the district court’s dismissal. Lynn v. Kunen , No. 97-3287 (10th Cir.
October 19, 1998).
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Meanwhile, on April 22, 1997, plaintiff filed a § 1983 complaint that the
district court docketed as case No. 97-CV-3162. In the complaint, plaintiff
alleged that defendant’s order requiring him to submit typewritten pleadings,
among other things, violated his constitutional right to meaningful access to
courts and sought an order enjoining defendant from dismissing his cases and
allowing him to file handwritten pleadings. On April 24, he submitted several
documents, including a motion for temporary injunction and show cause order and
a petition for writ of habeas corpus ad testificandum, that the district court
docketed as a separate case, docket No. 97-CV-3173. On May 30, plaintiff filed
in this court a petition for writ of mandamus seeking an order directing the
district court to order service of the complaint, grant a preliminary injunction,
hold a show cause hearing, order the district judge to recuse himself, and order
reinstatement of his state lawsuits. We denied the mandamus petition on July 25,
and his petition for rehearing en banc on August 25.
On July 31, the district court issued its order dismissing plaintiff’s cases.
The court noted that while defendant enjoyed absolute immunity from damages,
he could be subject to injunctive relief under § 1983. See Pulliam v. Allen , 466
U.S. 522, 541-42 (1984). It found that defendant acted within his authority as
administrative judge under Kan. Stat. Ann. § 20-329 in requiring plaintiff to
comply with Kansas Supreme Court Rule 111 in all of his state cases and did not
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violate plaintiff’s constitutional rights. It also found that his claim that defendant
conspired with the prosecutor, defense counsel, and others from his criminal case
conclusory and vague. The court therefore dismissed the cases for failing to state
a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff moved for reconsideration
contending, inter alia, for the first time that the district court should not have
docketed the two cases separately. The court denied the motion.
We agree with the district court that defendant acted within his authority as
administrative judge under Kan. Stat. Ann. § 20-329 in requiring plaintiff’s
compliance with Kansas Supreme Court Rule 111 in all of plaintiff’s state cases.
Cf. Krogen v. Collins , 907 P.2d 909, 912 (Kan. Ct. App. 1995) (“[A]ny district
judge has authority to issue an order in any case in the judge’s assigned district
unless such action would contravene the administrative judge’s supervisory
authority.”). More importantly, the specific requirement of Rule 111 about
which plaintiff most vehemently complains--the prohibition against hand-written
pleadings--has since been waived, thus making his request for injunctive relief to
allow him to file handwritten pleadings moot.
Plaintiff requests that we order defendant to reinstate his dismissed state
actions. We presume that the only reason why plaintiff wants these particular
actions reinstated is that they preceded imposition of the filing restrictions and he
somehow expects that those restrictions would not apply to the earlier cases.
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Plaintiff does not have a constitutional right to prosecution or reinstatement of
these particular cases since the Kansas court will allow him to refile the cases as
long as he complies with the filing restrictions. Moreover, the filing restrictions
themselves are not unconstitutional, see, e.g. , In re Winslow , 17 F.3d 314, 315
(10th Cir. 1994), and plaintiff has presented no cause for us to conclude their
imposition by the Kansas courts was improper.
Plaintiff also contends that the district court erroneously failed to combine
his two cases--Nos. 97-CV-3162 and 97-CV-3173--into one action, thus requiring
him to pay two filing fees and possibly subjecting him to two “PLRA strikes,” see
28 U.S.C. § 1915(g). Plaintiff proceeded for months filing documents under both
district court case numbers, and did not raise this issue until he filed a motion for
reconsideration of the district court’s order dismissing the cases. We review the
denial of a motion for reconsideration for abuse of discretion, see Thompson v.
City of Lawrence , 58 F.3d 1511, 1514-15 (10th Cir. 1995), and see no abuse of
that discretion.
Plaintiff’s motion to supplement the record on appeal is DENIED. The
judgment of the district court dismissing plaintiff’s cases for failure to state a
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claim under 28 U.S.C. § 1915(e)(2)(B)(ii) is AFFIRMED. We conclude that this
appeal is frivolous or fails to state a claim and counts as a prior occasion for
purposes of § 1915(g). Because a complaint dismissed under § 1915(e)(2)(B)(i)
or (ii) that is affirmed on appeal counts as two prior occasions for purposes of
§ 1915(g), two “strikes” are recorded against plaintiff. Because we have also
affirmed two other dismissals of plaintiff’s civil rights claims under
§ 1915(e)(2)(B)(i) or (ii), Lynn v. Dubowski , No. 97-3368 (10th Cir. October 19,
1998), Lynn v. Kunen , No. 97-3287 (10th Cir. October 19, 1998), plaintiff now
has a total of six “strikes” against him for purposes of § 1915(g). The mandate
shall issue forthwith.
Entered for the Court
Robert H. Henry
Circuit Judge
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