Lynn v. McClain

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This order and judgment is not binding precedent, except under the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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