Galicia-Hernandez (ID 95287) v. Cline et al
MEMORANDUM AND ORDER ENTERED: Plaintiff is granted thirty (30) days in which to submit to the court an initial partial filing fee of $11.00. Any objection to this order must be filed on or before the date payment is due. The failure to pay th e fees as required herein may result in dismissal of this action without prejudice. Within the same thirty-day time period, plaintiff is required to show cause why this action should not be dismissed for the reasons stated herein including failure to allege sufficient facts to support a constitutional claim. Signed by Senior District Judge Sam A. Crow on 4/25/2013. (Mailed to pro se party Pedro Galicia-Hernandez by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SAM CLINE, Warden,
MEMORANDUM AND ORDER
This pro se civil complaint was filed pursuant to 42 U.S.C. §
Hutchinson, Kansas (HCF).
Plaintiff claims that he was assaulted
by two other inmates and that “prison staff” violated his rights under
the Eighth Amendment by failing to protect him.
assessed an initial partial filing fee, and is required to show cause
why this action should not be dismissed for failure to allege facts
showing the personal participation of either defendant in the alleged
incident as well as for failure to allege sufficient facts to state
a federal constitutional claim.
The statutory fee for filing a civil rights complaint is
Plaintiff has submitted an Application to Proceed without
Prepayment of Fees (Doc. 2).
He is reminded that under 28 U.S.C.
§ 1915(b)(1), being granted leave to proceed without prepayment of
fees does not relieve him of the obligation to pay the full amount
of the filing fee.
Instead, it entitles him to pay the fee over time
through payments automatically deducted from his inmate trust fund
account as funds become available pursuant to 28 U.S.C. § 1915(b)(2).1
Furthermore, § 1915(b)(1), requires the court to assess an
initial partial filing fee of twenty percent of the greater of the
average monthly deposits or average monthly balance in the prisoner’s
account for the six months immediately preceding the date of filing
of the civil action.
Having examined the records of plaintiff’s
account, the court finds the average monthly deposit during the
relevant time period was $56.66, and the average monthly balance was
The court therefore assesses an initial partial filing fee
of $ 11.00, twenty percent of the average monthly deposit rounded
to the lower half dollar.
Plaintiff must pay this initial partial
filing fee before this action may proceed further, and will be given
time to submit the fee to the court.
His failure to submit the
initial fee in the time allotted may result in dismissal of this
action without further notice.
ALLEGATIONS AND CLAIMS
Under § 1915(b)(2), the Finance Office of the facility where plaintiff is
currently confined will be authorized to collect twenty percent (20%) of the prior
month’s income each time the amount in plaintiff’s institution account exceeds
ten dollars ($10.00) until the filing fee has been paid in full.
Plaintiff’s allegations and exhibits attached to his complaint
indicate the following factual background for this lawsuit.
September 21, 2012, plaintiff was assaulted in the rotundra at the
HCF by two general population inmates.
At the time he was in
restraints and being escorted during mass movement by Msgt. Widner
from segregation to the general population clinic.
He was maced
along with the other inmates when Widner broke up the incident.
complains that “prison staff” failed to protect him from injury
caused by the other inmates.
Plaintiff alleges that he exhausted administrative remedies on
The Unit Team response to his initial grievance
By policy all segregation clearances are done at the
clinic. By procedure, when the clinic calls for you or
the officers need to take you to the clinic, they are
allowed to do so. . . . Officer Widner used his OC Spray
to try to contain the situation. . . . Officer Widner was
within the scope of his job by taking you to the general
population clinic and by his use of the OC spray.
Complaint, Doc. 1-1.
The Secretary of Corrections affirmed the
administrative decision on November 6, 2012.
Plaintiff names as defendants Sam Cline, Warden, HCF; and Ray
Roberts, Secretary of Corrections.
He seeks a declaration that his
constitutional rights were violated, and compensatory damages in the
amount of $15,000 from each defendant.
Because Mr. Galicia-Hernandez is a prisoner, the court is
required by statute to screen his complaint and to dismiss the
complaint or any portion thereof that is frivolous, fails to state
a claim upon which relief may be granted, or seeks relief from a
defendant immune from such relief.
28 U.S.C. § 1915A(a) and (b);
28 U.S.C. § 1915(e)(2)(B).
“To state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the
United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.”
Atkins, 487 U.S. 42, 48-49 (1988)(citations omitted); Northington
v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992).
A court liberally
construes a pro se complaint and applies “less stringent standards
than formal pleadings drafted by lawyers.”
U.S. 89, 94 (2007).
Erickson v. Pardus, 551
However, the court “will not supply additional
factual allegations to round out a plaintiff’s complaint or construct
a legal theory on a plaintiff’s behalf.”
F.3d 1170, 1173-74 (10th Cir. 1997).
Whitney v. New Mexico, 113
A pro se litigant’s “conclusory
allegations without supporting factual averments are insufficient
to state a claim upon which relief can be based.”
935 F.2d 1106, 1110 (10th Cir. 1991).
Hall v. Bellmon,
The complaint must offer “more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action.”
Bell Atlantic Corp. v. Twombly, 550
allegations in the complaint as true.
910, 913 (10th Cir. 2006).
Anderson v. Blake, 469 F.3d
Still, “when the allegations in a
complaint, however true, could not raise a claim of entitlement to
relief,” dismissal is appropriate.
Twombly, 550 U.S. at 558.
avoid dismissal, the complaint’s “factual allegations must be enough
to raise a right to relief above the speculative level” and there
must be “enough facts to state a claim to relief that is plausible
on its face.”
Id. at 555, 570.
The Tenth Circuit Court of Appeals
has explained “that, to state a claim in federal court, a complaint
must explain what each defendant did to [the pro se plaintiff]; when
the defendant did it; how the defendant’s action harmed (the
plaintiff); and, what specific legal right the plaintiff believes
the defendant violated.”
Nasious v. Two Unknown B.I.C.E. Agents,
at Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th Cir.
The court finds that this complaint is deficient in at least
First, plaintiff utterly fails to describe any act or
omission on the part of either defendant showing his personal
involvement in the alleged assault incident.
An essential element
of a civil rights claim against an individual is that person’s direct
personal participation in the acts or inactions upon which the
complaint is based.
Trujillo v. Williams, 465 F.3d 1210, 1227 (10th
Cir. 2006)(A defendant’s direct personal responsibility for the
claimed deprivation of a constitutional right must be established);
Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996); Olson v.
Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993)(affirming district court’s
dismissal where “plaintiff failed to allege personal participation
of the defendants”).
Neither Cline nor Roberts is alleged to have
been present, and plaintiff fails to describe any wrongdoing by
Plaintiff may have named Cline and Roberts as defendants
based upon their supervisory capacity.
However, a prison official’s
liability may not be predicated solely upon the theory of respondeat
Rizzo v. Goode, 423 U.S. 362, 371 (1976); Gagan v. Norton,
35 F.3d 1473, 1476 FN4 (10th Cir. 1994), cert. denied, 513 U.S. 1183
Plaintiff does not cite any particular policy that was
promulgated by either defendant and explain how it resulted in the
regarding plaintiff’s grievance on this incident is not sufficient
to hold them liable for the assault.
Second, plaintiff fails to allege sufficient facts to state a
plausible claim of the violation of a federal constitutional right.
He baldly states his opinion that defendants should have had a policy
or procedure in place to prevent the incident, but provides no
suggestion as to what policy or procedure would have prevented what
appears to have been a random assault by two general population
inmates in a common area.
The Supreme Court has made clear that
prison officials have a duty to ensure the safety and protection of
[P]rison officials have a duty . . . to protect prisoners
from violence at the hands of other prisoners. . . .
proclivit[ies] for antisocial criminal, and often
violent, conduct, having stripped them of virtually every
means of self-protection and foreclosed their access to
outside aid, the government and its officials are not free
to let the state of nature take its course.
conditions may be restrictive and even harsh, but
gratuitously allowing the beating or rape of one prisoner
by another serves no legitimate penological objective any
more than it squares with evolving standards of decency.
Being violently assaulted in prison is simply not part of
the penalty that criminal offenders pay for their offenses
Farmer v. Brennan, 511 U.S. 825, 833-34 (1994)(internal quotation
marks and citations omitted); Hudson v. Palmer, 468 U.S. 517, 526-27
Nevertheless, it is not “every injury suffered by one
prisoner at the hands of another that translates into constitutional
liability for prison officials responsible for the victim’s safety.”
Farmer, 511 U.S. at 834.
A prison official may be held to have
violated the Eighth Amendment only when two components are satisfied:
an objective component requiring the inmate show he was “incarcerated
under conditions posing a substantial risk of serious harm,” id.;
and a subjective component requiring that defendants acted with the
culpable state of mind referred to as “deliberate indifference.”
Id.; Wilson v. Seiter, 501 U.S. 294, 299 (1991).
indifference exists when an official “knows of and disregards an
excessive risk to inmate health or safety.”
Farmer, 511 U.S. at 837
(“A prison official cannot be found liable under the Eighth Amendment
for denying an inmate humane conditions of confinement unless the
official knows of and disregards an excessive risk to inmate health
or safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.”); Gonzales v. Martinez,
403 F.3d 1179, 1186 (10th Cir. 2005).
requires “a higher degree of fault than negligence.”
Robinson, 1 F.3d 1063, 1066 (10th Cir. 1993); Farmer, 511 U.S. at
A prison official’s “failure to alleviate a significant risk
that he should have perceived but did not” does not amount to the
infliction of cruel and unusual punishment.
To state a claim under the foregoing standards, plaintiff must
allege facts indicating that defendants were actually conscious of
a risk to plaintiff rather than that they should have been, or that
the risk was so obvious awareness of it may be presumed.
mere fact that an assault occurred does not establish the requisite
deliberate indifference to a prisoner’s constitutional rights.
Hovater, 1 F.3d at 1068.
Plaintiff was provided security while he
was being escorted to the clinic in that a correctional officer was
escorting him, and the officer was able to stop the assault with
Plaintiff does not allege facts indicating that either
defendant was made aware of a risk that he would be attacked, as from
him having been the victim of prior attacks or reported threats.
does he allege there were prior attacks on others in the same area
or any type of prior administrative findings that security in the
area was inadequate, which actually put defendants on notice.
Plaintiff’s allegations describe an isolated assault by two other
inmates and are simply insufficient to be construed as a pervasive
risk of harm that prison officials were aware of and yet failed to
reasonably respond to.
The court concludes that this action is
subject to being dismissed for failure to state sufficient facts to
support a federal constitutional violation.
Finally, the court finds that plaintiff has not alleged facts
suggesting that he suffered a serious physical injury during the
42 U.S.C. § 1997e(e) provides: “[n]o Federal
civil action may be brought by a prisoner confined in a jail, prison,
or other correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of physical
42 U.S.C. § 1997e(e).
Plaintiff seeks compensatory
damages and is therefore required to show physical injury.
Mr. Galicia-Hernandez is given time to cure the deficiencies
in his complaint that have been discussed herein.
If he fails to
do so within the prescribed time, this action may be dismissed without
IT IS THEREFORE ORDERED that plaintiff is granted thirty (30)
days in which to submit to the court an initial partial filing fee
of $ 11.00.
Any objection to this order must be filed on or before
the date payment is due.
The failure to pay the fees as required
herein may result in dismissal of this action without prejudice.
IT IS FURTHER ORDERED that with the same thirty-day time period,
plaintiff is required to show cause why this action should not be
dismissed for the reasons stated herein including failure to allege
sufficient facts to support a constitutional claim.
IT IS SO ORDERED.
Dated this 25th day of April, 2013, at Topeka, Kansas.
s/Sam A. Crow
U. S. Senior District Judge
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