Kahn v. Daniels et al

Filing 9

ORDER DISMISSING CASE AS FRIVOLOUS. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied, by Judge Lewis T. Babcock on 2/8/12. (lyg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02984-BNB
ROY ALBERT KAHN,
Plaintiff,
v.
CHARLES DANIELS, Warden,
COUNSELOR ANDERT, USP Florence,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Roy Albert Kahn, has filed pro se a Complaint (Doc. #6) seeking
mandamus relief. The Court must construe the Complaint liberally because Mr. Harris
is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If the Complaint reasonably can
be read “to state a valid claim on which the plaintiff could prevail, [the Court] should do
so despite the plaintiff’s failure to cite proper legal authority, his confusion of various
legal theories, his poor syntax and sentence construction, or his unfamiliarity with
pleading requirements.” Hall, 935 F.2d at 1110. However, the Court should not be an
advocate for a pro se litigant. See id.
Mr. Kahn has been granted leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. Pursuant to § 1915(e)(2)(B), the Court must dismiss the complaint at
any time if the claims asserted are legally frivolous. A legally frivolous claim is one in
which the plaintiff asserts the violation of a legal interest that clearly does not exist or in

which he asserts facts that do not support an arguable claim. See Neitzke v. Williams,
490 U.S. 319, 324 (1989). For the reasons stated below, the Complaint will be
dismissed as legally frivolous.
Mr. Kahn alleges that the named Defendants have violated his constitutional
rights because he has been “limited to one (1) grievance form at a time.” Memorandum
(Doc. # 2) at 1. He asserts that this policy of limiting him to one grievance form at a
time has violated his First Amendment right “to redress and access to the courts.”
Complaint at 3. As relief in this mandamus action, Mr. Kahn seeks an order compelling
Defendants “to perform their constitutional duty as stated herein.” Id. at 8.
Mr. Kahn specifically seeks mandamus relief pursuant to 28 U.S.C. § 1361, the
federal mandamus statute. The federal mandamus statute provides that a federal
district court “shall have original jurisdiction of any action in the nature of mandamus to
compel an officer or employee of the United States or any agency thereof to perform a
duty owed to the plaintiff.” 28 U.S.C. § 1361. To grant mandamus relief, the Court must
find that Mr. Kahn has a clear right to the relief sought, that Defendants have a plainly
defined and peremptory duty to perform the action in question, and that no other
adequate remedy is available. See Wilder v. Prokop, 846 F.2d 613, 620 (10th Cir.
1988).
Mr. Kahn complains that he has been limited to one grievance form at a time.
However, inmates like Mr. Kahn do not have an independent constitutional right to
administrative grievance procedures. See Boyd v. Werholtz, No. 10-3284, 2011 WL
4537783, at *1 (10th Cir. Oct. 3, 2011) (unpublished opinion). “Nor does the state’s
voluntary provision of an administrative grievance process create a liberty interest in
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that process.” Id. (citing Bingham v. Thomas, 654 F.3d 1171, 1177 (11th Cir. 2011)
(observing that inmates have no constitutionally-protected liberty interest in access to
prison grievance procedure); see also Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.
1993) (per curiam) (finding that “[a] prison grievance procedure is a procedural right
only, it does not confer any substantive right upon the inmates. Hence, it does not give
rise to a protected liberty interest . . . .” (quotation and brackets omitted)); Cotner v.
Oklahoma, 2009 WL 4776274, at *12 (W.D. Okla. Dec. 11, 2009) (finding “Defendants’
imposition of grievance restriction filed by Plaintiff does not state a claim upon which
relief may be granted . . . Since there is no constitutional right to a grievance procedure,
it follows that a restriction on the number of grievances a prisoner can file does not give
rise to a cognizable constitutional rights claim.”). Instead, “[w]hen the claim underlying
the administrative grievance involves a constitutional right, the prisoner’s right to petition
the government for redress is the right of access to the courts, which is not
compromised by the prison’s refusal to entertain his grievances.” Boyd, 2007 WL
4537783 at *1 (quoting Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991).
To state a claim for violation of the constitutional right to access the courts, an
inmate “must demonstrate actual injury . . . –that is, that the prisoner was frustrated or
impeded in his efforts to pursue a non-frivolous legal claim concerning his conviction or
his conditions of confinement.” Gee v. Pacheco, 627 F.3d 1178, 1191 (10th Cir. 2010)
(citing Lewis v. Casey, 518 U.S. 343, 351-55 (1996)). Mr. Kahn does not allege that the
Defendants’ action actually hindered his ability to pursue a non-frivolous legal claim.

Therefore, Mr. Kahn’s alleged restriction to one grievance form at a time does not state
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a right of access claim.
In the instant action, Mr. Kahn has not presented the Court with an extraordinary
situation mandating mandamus relief. He fails to allege facts demonstrating a clear
right to the relief sought. He fails to make factual allegations indicating that Defendants
owe him a clear nondiscretionary duty. He fails to demonstrate that no other adequate
remedy is available to him. Accordingly, this action for mandamus relief will be
dismissed as legally frivolous. See, e.g., Kailey v. Zavaras, 2011 WL 5593671, at *10
(D. Colo. Nov. 17, 2011) (finding that prisoner’s claim that he was restricted from filing
grievances was legally frivolous).
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this order would not be taken in good faith and therefore in forma pauperis status
will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Mr. Kahn files a notice of appeal he must also pay the full $455 appellate
filing fee or file a motion to proceed in forma pauperis in the Tenth Circuit within thirty
days in accordance with Fed. R. App. P. 24. Accordingly, it is
ORDERED that the complaint and the action are dismissed as legally frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B). It is

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FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this

8th

day of

February

, 2012.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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