Lynn v. Kelly, et al.

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
PATRICK C. LYNN,
Plaintiff - Appellant,
v.
LAURA KELLY, Governor, in her
individual and official capacity; STATE
OF KANSAS; DAN SCHNURR, Warden,
Hutchinson Correctional Facility, in his
individual and official capacity; CLAY
VAN HOOSE, Major/Chief of Security,
Hutchinson Correctional Facility, in his
individual and official capacity; TOMMY
WILLIAMS, Deputy Warden, Hutchinson
Correctional Facility, in his individual and
official capacity; JESSICA ZAGER,
CO1/Segregation Officer, Hutchinson
Correctional Facility, in her individual and
official capacity; JEREMY WILKERSON-
RODRIGUEZ, Master Sergeant,
Hutchinson Correctional Facility, in his
individual and official capacity; THOMAS
JACKSON, CO1/Segregation Officer,
Hutchinson Correctional Facility, in his
individual and official capacity; RICHARD
GOLDEN, CO1/Segregation Officer,
Hutchinson Correctional Facility, in his
individual and official capacity; RUSSELL
COOK, CO1/Segregation Officer,
Hutchinson Correctional Facility, in his
individual and official capacity; JERRY
KIPP, Captain, Hutchinson Correctional
Facility, in his individual and official
capacity; CURTIS PRICE, Captain,
Hutchinson Correctional Facility, in his
individual and official capacity; STEVE
FOSTER, Captain, Hutchinson
No. 21-3094
(D.C. No. 5:19-CV-03003-EFM-KGG)
(D. Kan.)
FILED
United States Court of Appeals
Tenth Circuit
April 7, 2022
Christopher M. Wolpert
Clerk of Court
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Correctional Facility, in his individual and
official capacity; DOUGLAS
SHERWOOD, CO1/Segregation Officer,
Hutchinson Correctional Facility, in his
individual and official capacity; JEFFREY
PETTIJOHN, Unit Counselor, Hutchinson
Correctional Facility, in his individual and
official capacity; RAYMOND STIGGINS,
Lieutenant, Hutchinson Correctional
Facility, in his individual and official
capacity; JOHN MARKUS, EAI
Supervisor, Hutchinson Correctional
Facility, in his individual and official
capacity; DEVIN CARPENTER, EAI
Special Agent, Hutchinson Correctional
Facility, in his individual and official
capacity; JASON KRAMER, EAI Special
Agent, Hutchinson Correctional Facility, in
his individual and official capacity; MIKE
NICKLES, Unit Manager, Hutchinson
Correctional Facility, in his individual and
official capacity; CHRISTINA WISE,
Grievance and Property/Injury Claims
Officer, Hutchinson Correctional Facility,
in her individual and official capacity;
CORIZON, INC.; BARRY LEWIS-
HARRIS, Chief Medical Director, Corizon
Health, Inc. in his individual and official
capacity; DEBRA LUNDRY, Health
Services Administrator, Corizon Health,
Inc. @ Hutchinson Correctional Facility, in
her individual and official capacity;
MARTHA MILLER, RN, Corizon Health,
Inc. @ Hutchinson Correctional Facility, in
her individual and official capacity;
CARMEN BAYNHAM, HCP, Corizon
Health, Inc. @ Hutchinson Correctional
Facility, in her individual and official
capacity; GENE MILLER, RN, Corizon
Health, Inc. @ Hutchinson Correctional
Facility, in his individual and official
capacity; (FNU) HUSEL, RN, Corizon
Health, Inc. @ Hutchinson Correctional
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Facility, in his individual and official
capacity; HOLLY POOLE, Mental Health
Counselor, Corizon Health, Inc. @
Hutchinson Correctional Facility, in her
individual and official capacity; KEVIN
STANSBURY, Mental Health Counselor,
Corizon Health, Inc. @ Hutchinson
Correctional Facility, in her individual and
official capacity; MISTY KEOLAVONE,
Mental Health Counselor, Corizon Health,
Inc. @ Hutchinson Correctional Facility, in
her individual and official capacity;
KARLA SCHROEDER, Mental Health
Counselor, Corizon Health, Inc. @
Hutchinson Correctional Facility, in her
individual and official capacity; RUSSELL
JENNINGS, Representative, in his
individual and official capacity; DEREK
SCHMIDT, Kansas Attorney General, in
his individual and official capacity; (FNU)
SCHROEDER, Reno County District
Attorney, in his individual and official
capacity; (FNU) HENDERSON, Reno
County Sheriff, in his individual and
official capacity; ROGER WERHOLTZ,
Secretary of Corrections, Kansas
Department of Corrections, in his
individual and official capacity; DOUG
BURRIS, CM1, Kansas Department of
Corrections, in his individual and official
capacity; MARCI CHAMIDILING, EIA
Director, Lansing Correctional Facility, in
her individual and official capacity;
STEPHEN MCCALLISTER, Kansas U.S.
Attorney, in his individual and official
capacity; MARCUS DAWES, Unit
Counselor, Hutchinson Correctional
Facility, in his individual and official
capacity; (FNU) DIAZ, CO1, Hutchinson
Correctional Facility, in their individual
and official capacity; WENDY
WASINGER, Med Tech, Corizon Health,
Inc. @ Hutchinson Correctional Facility, in
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her individual and official capacity;
TERRY WEBSTER, RN, Corizon Health,
Inc. @ Hutchinson Correctional Facility, in
his individual and official capacity; LEO
DELPERGANG, Representative, in his
individual and official capacity; JOHN
DOE, Kansas FBI/SAIC, in his individual
and official capacity; (FNU)
MCCARVILLE, Reno County Judge, in
his individual and official capacity;
MACKIE DICK, Reno County Judge, in
his individual and official capacity,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, KELLY, and ROSSMAN, Circuit Judges.**
_________________________________
Plaintiff-Appellant Patrick C. Lynn, a state inmate appearing pro se, appeals from the
district court’s dismissal of his civil rights action, 42 U.S.C. § 1983, based on a
failure to exhaust administrative remedies. Lynn v. Cline, No. 19-CV-3003, 2021
WL 2104981 (D. Kan. May 25, 2021). The district court granted summary judgment
to various Defendants-Appellees on this basis and declined to recuse. On appeal, Mr.
Lynn challenges these decisions. Mr. Lynn also seeks appointment of appellate
* 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.
** 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.
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counsel. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm and deny
appointment of appellate counsel.
Background
In 2019, Mr. Lynn alleges that he suffered chest pains and a heart attack but
was ignored by correctional staff for several hours. He alleges that once he returned
to prison following a stint in the ICU, he was ridiculed by the staff. He submitted
three “Property Damage/Loss or Personal Injury Claim Forms” regarding the
incident. He also sent letters to various public officials, which were returned with the
suggestion that he pursue informal resolution with correctional staff. However, Mr.
Lynn neither pursued an informal resolution nor submitted a grievance.
On a motion for summary judgment, the district court found Mr. Lynn’s claims
barred for failure to exhaust administrative remedies. In particular, the district court
found Mr. Lynn failed to comply with the requirements of Kansas Administrative
Regulation § 44-15-101. Consequently, the court dismissed the suit.
Analysis
A. Failure to Exhaust
Before an inmate may bring a § 1983 claim regarding prison conditions, he
must exhaust his administrative remedies. 42 U.S.C. § 1997e(a); Little v. Jones, 607
F.3d 1245, 1249 (10th Cir. 2010). We review the district court’s grant of summary
judgment de novo. Brown v. Austin, 13 F.4th 1079, 1084 (10th Cir. 2021). Under
Kansas law, inmates must attempt “to reach an informal resolution of the matter with
the personnel who work with the inmate on a direct or daily basis,” before using the
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established grievance procedure. Kan. Admin. Regs. § 44-15-101(b) (2002). If no
informal resolution is reached, an inmate must file a grievance report first with “an
appropriate unit team member of the facility,” next with the warden, and finally, if
not resolved, with the secretary of corrections. Id. § 44-15-101(d). While Mr. Lynn
submitted three personal injury claims in 2019, and wrote letters to various officials,
he has not shown that he pursued an informal resolution or that he filed a grievance
with either the warden or the secretary of corrections. Mr. Lynn may have attempted
to comply with the distinct requirements of § 44-16-104a, but he wholly ignored the
requirements of § 44-15-101. See id. § 44-15-101a(d)(2). As Mr. Lynn failed to
comply with the established grievance process, summary judgment was proper.
Thomas v. Parker, 609 F.3d 1114, 1118–19 (10th Cir. 2010). Mr. Lynn also makes
several arguments that were not raised below, including that the regulations were
impossible to follow and that he was prevented from exercising administrative
remedies because of threats and retaliation. Mr. Lynn did not present these claims to
the district court and does not argue for plain error. Thus, we do not consider them.
B. Recusal
Mr. Lynn also challenges the district court’s decisions declining to recuse.
Mr. Lynn generally alleges that the district court has a bias against prisoners and that
it previously endorsed Paul Morrison for Kansas Attorney General. We review for an
abuse of discretion. Burke v. Regalado, 935 F.3d 960, 1052 (10th Cir. 2019).
Judicial recusal is proper under 28 U.S.C. § 455 where there is the appearance of
partiality or actual partiality. Id. at 1053. This court considers “whether a reasonable
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person might question the judge’s impartiality.” Id. at 1054. Adverse rulings,
without more, rarely constitute a basis for recusal, and Mr. Lynn’s baseless
allegations against the district court are likewise insufficient. See Liteky v. United
States, 510 U.S. 540, 555 (1994). We find no abuse of discretion.
C. Appellate Counsel
Alternatively, in lieu of relief, Mr. Lynn requests this court appoint appellate
counsel in order to prepare a revised appellate brief. However, this court is “not
authorized to appoint counsel in § 1983 cases; instead, [it] can only ‘request’ an
attorney to take the case.” Rachel v. Troutt, 820 F.3d 390, 396 (10th Cir. 2016)
(quoting 28 U.S.C. § 1915(e)(1)). A request for an attorney may be proper “where
the lack of counsel results in fundamental unfairness.” Toevs v. Reid, 685 F.3d 903,
916 (10th Cir. 2012) (quoting Hill v. SmithKline Beecham Corp., 393 F.3d 1111,
1115 (10th Cir. 2004)). Mr. Lynn has the burden of demonstrating a request for
appellate counsel is appropriate. Hill, 393 F.3d at 1115. Here, Mr. Lynn fails to
explain why his request is more deserving of counsel, Rachel, 820 F.3d at 397, or
how a lack of counsel has resulted in fundamental unfairness, Toevs, 685 F.3d at 916.
Consequently, this court declines to appoint counsel.
AFFIRMED. We DENY the request for counsel.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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