Jones v. Luedtke et al

Filing 6

ORDER granting 1 Pro Se Motion to proceed in forma pauperis. Clerk of Court shall file the complaint without the prepayment of the filing fee. The plaintiff is directed to submit an initial partial filing fee of $10.08 by no later than 9/28/1 2. The institution having custody of the plaintiff is directed to collect and remit monthly payments until the $350 filing fee is paid in full. The clerks office is directed to send a copy of this order and the notice of collection of filing fee to the appropriate official at the place where the plaintiff is an inmate. The plaintiffs 42 U.S.C. § 1983 action is dismissed pursuant to 28 U.S.C. 1915A(b)(1) and/or 28 U.S.C. § 1915(e)(2)(B). The dismissal of the instant action counts against the plaintiff for purposes of the three-dismissal rule set forth in 28 U.S.C. § 1915(g). Signed by Chief Judge Linda R Reade on 9/7/12. (ksy) (copy w/NEF to Plf at IMCC; Copy to Warden at IMCC, CRF)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
JOSHUA J. JONES,
Plaintiff,

No. C11-0011-LRR

vs.
EDWARD LUEDTKE, JOHN
FAYRAM, JAKE NOONAN, CURT
MAYO, JEAN EVEN, JEAN
SCHLICTEMEIER, MIKE
BECHTHOLD,

ORDER

Defendants.
____________________________
The matter before the court is the plaintiff’s report to the court (docket no. 4). The
plaintiff filed such report on April 5, 2011. As the court directed him, the plaintiff
informed the court that he desired to proceed with this action even though the filing fee had
increased from $250.00 to $350.00. Given such report, the court deems it appropriate to
rule on the plaintiff’s application to proceed in forma pauperis and to conduct an initial
review of his complaint.
I. IN FORMA PAUPERIS UNDER 28 U.S.C. § 1915
Based on the plaintiff’s application and certificate of inmate account, it is clear that
the plaintiff does not have sufficient funds to pay the required filing fee. 28 U.S.C. §
1914(a) (requiring $350.00 filing fee). Thus, in forma pauperis status shall be granted to
the plaintiff. See generally 28 U.S.C. § 1915. The clerk’s office shall file the complaint
without the prepayment of the filing fee. Although the court deemed it appropriate to grant
the plaintiff in forma pauperis status, the plaintiff is required to pay the full $350.00 filing
fee by making payments on an installment basis. 28 U.S.C. § 1915(b)(1); see also In re
Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997) (“[T]he [Prisoner Litigation Reform Act]
makes prisoners responsible for their filing fees the moment the prisoner brings a civil

action or files an appeal.”). The full filing fee will be collected even if the court dismisses
the case because it is frivolous or malicious, fails to state a claim on which relief may be
granted, or seeks money damages against a defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2).
Here, the plaintiff must pay an initial partial filing fee in the amount of 20 percent
of the greater of his average monthly account balance or average monthly deposits for the
six months preceding the filing of the complaint. 28 U.S.C. § 1915(b)(1). Based on his
average monthly balance, the court finds that the initial partial filing fee is $10.08. Id.
The plaintiff shall submit $10.08 by no later than September 28, 2012. Id. If necessary,
the plaintiff may request in a written motion an extension of time to pay the initial partial
filing fee.
In addition to the initial partial filing fee, the plaintiff must “make monthly
payments of 20 percent of the preceding month’s income credited to the prisoner’s
account.” 28 U.S.C. § 1915(b)(2). The statute places the burden on the prisoner’s
institution to collect the additional monthly payments and forward them to the court.
Specifically,
[a]fter payment of the initial partial filing fee, the prisoner
shall be required to make monthly payments of 20 percent of
the preceding month’s income credited to the prisoner’s
account. The agency having custody of the prisoner shall
forward payments from the prisoner’s account to the clerk of
the court each time the amount in the account exceeds $10
until the filing fees are paid.
28 U.S.C. § 1915(b)(2). Therefore, after the plaintiff pays in full the initial partial filing
fee, the remaining installments shall be collected by the institution having custody of the
plaintiff. Id. The clerk’s office shall send a copy of this order and the notice of collection
of filing fee to the appropriate official at the place where the plaintiff is an inmate.

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II. STANDARD OF REVIEW
A pro se complaint must be liberally construed. See Hughes v. Rowe, 449 U.S. 5,
9, 101 S. Ct. 173, 66 L. Ed. 2d 163 (1980); Haines v. Kerner, 404 U.S. 519, 520, 92 S.
Ct. 594, 30 L. Ed. 2d 652 (1972) (per curiam); Smith v. St. Bernards Reg’l Med. Ctr., 19
F.3d 1254, 1255 (8th Cir. 1994). In addition, unless the facts alleged are clearly baseless,
they must be weighed in favor of the plaintiff. Denton v. Hernandez, 504 U.S. 25, 32-33,
112 S. Ct. 1728, 118 L. Ed. 2d 340 (1992). A court, however, can dismiss at any time
a complaint filed in forma pauperis if the complaint is frivolous, malicious, fails to state
a claim on which relief may be granted, or seeks monetary relief against a defendant who
is immune from such relief. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b)(1). A claim
is “frivolous” if it “lacks an arguable basis in law or in fact.” Neitzke v. Williams, 490
U.S. 319, 325, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989); accord Cokeley v. Endell, 27
F.3d 331, 332 (8th Cir. 1994). An action fails to state a claim upon which relief can be
granted if it does not plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d
929 (2007). Accordingly, a court may review the complaint and dismiss sua sponte those
claims that fail “‘to raise a right to relief above the speculative level. . . .’”, see Parkhurst
v. Tabor, 569 F.3d 861, 865 (8th Cir. 2009) (quoting Bell Atl., 550 U.S. at 555), or that
are premised on meritless legal theories or clearly lack any factual basis, see Neitzke, 490
U.S. at 325. See, e.g., Denton v. Hernandez, 504 U.S. at 27 (considering frivolousness);
Myers v. Vogal, 960 F.2d 750, 751 (8th Cir. 1992) (concluding that a district court may
dismiss an action if an affirmative defense exists).
III. CLAIMS ASSERTED
Currently confined at the Iowa Medical & Classification Center in Coralville, Iowa,
the plaintiff, proceeding pro se, submitted a complaint to redress issues that are related to
his confinement at the Anamosa State Penitentiary in Anamosa, Iowa. The plaintiff
predicates jurisdiction on 28 U.S.C. § 1343. Under 28 U.S.C. § 1391(b), venue appears
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proper as the defendants are located in this district and the events giving rise to the instant
action occurred in this district.
In his complaint, the plaintiff essentially claims that Mike Bechthold touched him
inappropriately during a pat down search and Mike Bechthold made a sexual comment and
offered him extra food two days after such pat down search. He also alleges that the other
defendants did not do anything after he submitted grievances and complained about Mike
Bechthold’s sexual misconduct and harassment. Further, the plaintiff states that he fears
for his safety.1 As relief, the plaintiff states that he would like to be awarded an
undisclosed amount of damages for the mental stress that he has endured, to have an
attorney appointed to represent him and to have criminal charges filed against Mike
Bechthold for his sexual misconduct. He also requests that no portion of his monetary
judgment be allocated to satisfy outstanding restitution obligations that he has.
IV. ANALYSIS
A. Claims Under 42 U.S.C. § 1983
Title 42 U.S.C. § 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . .
subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by
the Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper proceeding
for redress . . .
42 U.S.C. § 1983 was designed to provide a “broad remedy for violations of federally
protected civil rights.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 685, 98 S. Ct.
2018, 56 L. Ed. 2d 611 (1978). However, 42 U.S.C. § 1983 provides no substantive
rights. Albright v. Oliver, 510 U.S. 266, 271, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994);

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The court notes that the plaintiff undated his address on July 20, 2011, and he does
not assert that he is still experiencing fear or any other emotions.
4

Graham v. Conner, 490 U.S. 386, 393-94, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989);
Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617, 99 S. Ct. 1905, 60 L. Ed.
2d 508 (1979). “One cannot go into court and claim a ‘violation of [42 U.S.C.] § 1983’
— for [42 U.S.C.] § 1983 by itself does not protect anyone against anything.” Chapman,
441 U.S. at 617. Rather, 42 U.S.C. § 1983 provides a remedy for violations of all
“rights, privileges, or immunities secured by the Constitution and laws [of the United
States].” 42 U.S.C. § 1983; see also Albright, 510 U.S. at 271 (42 U.S.C. § 1983
“merely provides a method for vindicating federal rights elsewhere conferred.”); Graham,
490 U.S. at 393-94 (same); Maine v. Thiboutot, 448 U.S. 1, 4, 100 S. Ct. 2502, 65 L. Ed.
2d 555 (1980) (“Constitution and laws” means 42 U.S.C. § 1983 provides remedies for
violations of rights created by federal statute, as well as those created by the
Constitution.). To state a claim under 42 U.S.C. § 1983, a plaintiff must establish: (1) the
violation of a right secured by the Constitution or laws of the United States, and (2) the
alleged deprivation of that right was committed by a person acting under color of state law.
West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988).
B. Plaintiff’s Claims
Based on the facts that are alleged, it is clear that the plaintiff does not state a viable
claim under 42 U.S.C. § 1983. Allegations of sexual harassment or abuse may state a
claim under the Eighth Amendment. See Frietas v. Ault, 109 F.3d 1335, 1338 (8th Cir.
1997) (stating that, because sexual harassment or abuse can never serve a legitimate
purpose and may well result in severe physical and psychological harm, either sexual
harassment or sexual abuse can, in certain circumstances, give rise to a claim under the
Eighth Amendment).
To prevail on a constitutional claim of sexual harassment, [a
plaintiff] must [. . .] prove, as an objective matter, that the
alleged abuse or harassment caused ‘pain’ and, as a subjective
matter, that the [defendant] in question acted with a sufficiently
culpable state of mind.

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Id. at 1338. Concerning the sufficiently culpable element, a defendant must have acted
with deliberate indifference to the plaintiff’s health or safety. See Berryhill v. Schriro, 137
F.3d 1073, 1076-77 (8th Cir. 1998) (applying deliberate indifference standard in prison
sexual harassment case).
Here, the allegation of sexual abuse is predicated on a pat down search performed
by Mike Bechthold. There is no accompanying allegation that Mike Bechthold’s conduct
caused the plaintiff any pain or other injury.

Assuming without deciding that the

allegations establish a claim of sexual abuse, they are not sufficiently serious to satisfy the
objective component of an Eighth Amendment claim. See Berryhill, 137 F.3d at 1076-77
(concluding claim that two officers grabbed the plaintiff’s buttocks for a moment did not
satisfy the objective component of the Eighth Amendment); Boddie v. Schnieder, 105 F.3d
857, 861 (2d Cir. 1997) (concluding that the episodes of sexual harassment and touching
without consent do not involve a harm of federal constitutional proportions); Green v.
Elias, 9 F.3d 1551, (9th Cir. 1993) (finding allegation that female defendant grabbed the
plaintiff’s genitals during a clothed pat frisk insufficient to state constitutional violation);
cf. Seltzer-Bey v. Delo, 66 F.3d 961, 962-63 (8th Cir. 1995) (allegations that defendant
conducted daily strip searches, made sexual comments about plaintiff’s penis and buttocks
and rubbed plaintiff’s buttocks with nightstick stated valid constitutional claim); Watson
v. Jones, 980 F.2d 1165, 1165-66 (8th Cir. 1992) (finding valid Eighth Amendment claim
where plaintiffs alleged sexual harassment and sexual fondling during pat frisks almost
daily and over a two-month period). Further, evidence of deliberate indifference or a
culpable state of mind on the part of Mike Bechthold is lacking, especially considering that
legitimate purposes can be inferred from Mike Bechthold’s clothed pat down search of the
plaintiff and that the alleged incident is limited to a brief period. See Barney v. Pulsipher,
143 F.3d 1299, 1310 (10th Cir. 1998) (noting failure to show deliberate indifference). In
sum, the court concludes that the alleged actions of Mike Bechthold do not constitute
“unnecessary and wanton infliction of pain” as contemplated by the Eighth Amendment.
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Frietas, 109 F.3d at 1338 (citing Whitley v. Albers, 475 U.S. 312, 319, 106 S. Ct. 1078,
89 L. Ed. 2d 251 (1986)).
The plaintiff also maintains that the other defendants failed to respond to his
grievance and verbal allegations. Such claim fails because the denial of grievances does
not state a substantive constitutional claim. See Lomholt v. Holder, 287 F.3d 683, 684 (8th
Cir. 2002); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993). It also fails because
liability under 42 U.S.C. § 1983 may not be grounded upon a respondeat superior theory.
See Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989);
Chambers v. St. Louis County, 247 F. App’x 846, 848 (8th Cir. 2007); Tlamka v. Serrel,
244 F.3d 628, 635 (8th Cir. 2001). The plaintiff’s complaint does not include specific
allegations against the other defendants; the plaintiff’s 42 U.S.C. § 1983 action against the
remaining defendants is not cognizable because the plaintiff does not allege that their
conduct caused the deprivation of a federally protected right or that they were personally
involved with or had direct responsibility for the incident alleged in the complaint. See
Gully v. Maynard, 218 F. App’x 551, 552 (8th Cir. 2007); Martin v. Sargent, 780 F.2d
1334, 1338 (8th Cir. 1985).
Lastly, the court declines to appoint an attorney, and the other relief that the
plaintiff is seeking is not available. It does not appear from the plaintiff’s complaint that
he is seeking nominal damages or punitive damages. And, compensatory damages are only
available if an inmate has the requisite physical injury to support a claim for mental or
emotional suffering. See Williams v. Hobbs, 662 F.3d 994, 1011-12 (8th Cir. 2011)
(discussing the availability of compensatory damages under 42 U.S.C. § 1997e(e)).
Because the plaintiff does not assert any physical injury as a result of the defendants’
actions, dismissal is appropriate. See 42 U.S.C. § 1997e(e); see also Royal v. Kautzky,
375 F.3d 720, 723 (8th Cir. 2004) (concluding that 42 U.S.C. § 1997e(e) applies to all
prisoner federal civil actions). Further, the court does not have the authority to commence
criminal proceedings. See e.g., United States v. Armstrong, 517 U.S. 456, 464, 116 S.
7

Ct. 1480, 134 L. Ed. 2d 687 (1996) (making clear that it is the executive branch that
retains broad discretion to enforce the Nation’s criminal laws). If the plaintiff believes a
crime occurred, he should consult law enforcement officials, and, after conducting an
investigation, those officials may consult with prosecutors to determine whether charges
are warranted. Whether to prosecute and what charges to file or bring are decisions that
rest in the prosecutor’s discretion. See United States v. Batchelder, 442 U.S. 114, 124,
99 S. Ct. 2198, 2204, 60 L.Ed.2d 755 (1979); Bordenkircher v. Hayes, 434 U.S. 357,
364, 98 S. Ct. 663, 668, 54 L.Ed.2d 604 (1978); United States v. Nixon, 418 U.S. 683,
693, 94 S. Ct. 3090, 3100, 41 L.Ed.2d 1039 (1974); Parkhurst v. Tabor, 569 F.3d 861,
867 (8th Cir. 2009). This court has no power to order a member of the executive branch
to prosecute certain individuals.
In light of the foregoing, the plaintiff’s complaint shall be dismissed as frivolous or
for failing to state a claim upon which relief can be granted. Because the court deems it
appropriate to dismiss the complaint pursuant to 28 U.S.C. 1915A(b)(1) and/or 28 U.S.C.
§ 1915(e)(2)(B), the dismissal of this action shall count against him for purposes of the
three-dismissal rule set forth in 28 U.S.C. § 1915(g).
IT IS THEREFORE ORDERED:
(1) The plaintiff’s application to proceed in forma pauperis status (docket no. 1) is
granted.
(2) The clerk’s office is directed to file the complaint without the prepayment of the
filing fee.
(3) The plaintiff is directed to submit an initial partial filing fee of $10.08 by no
later than September 28, 2012. If necessary, the plaintiff may request in a written
motion an extension of time to pay the initial partial filing fee.
(4) After the plaintiff pays the initial partial filing fee, the institution having custody
of the plaintiff is directed to collect and remit monthly payments in the manner set
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forth in 28 U.S.C. § 1915(b)(2). Until the $350.00 filing fee is paid in full, the
plaintiff is obligated to pay and the institution having custody of him is obligated to
forward 20 percent of the preceding month’s income credited to his account each
time the amount in the account exceeds $10.00.
(5) The clerk’s office is directed to send a copy of this order and the notice of
collection of filing fee to the appropriate official at the place where the plaintiff is
an inmate.
(6) The plaintiff’s 42 U.S.C. § 1983 action is dismissed pursuant to 28 U.S.C.
1915A(b)(1) and/or 28 U.S.C. § 1915(e)(2)(B).
(7) The dismissal of the instant action counts against the plaintiff for purposes of the
three-dismissal rule set forth in 28 U.S.C. § 1915(g).
DATED this 7th day of September, 2012.

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TO:

WARDEN/ADMINISTRATOR
Iowa Medical & Classification Center, Coralville, Iowa
NOTICE OF COLLECTION OF FILING FEE
You are hereby given notice that Joshua J. Jones, #6355439, an inmate at your

facility, filed the following lawsuit in the United States District Court for the Northern
District of Iowa: Jones v. Luedtke, et al., Case No. C11-0011-LRR. The inmate was
granted in forma pauperis status pursuant to 28 U.S.C. § 1915(b), which requires partial
payments of the $350.00 filing fee. Based on the inmate’s account information, the court
has assessed an initial partial filing fee of $10.08, which the inmate must pay now to the
clerk of court. 28 U.S.C. § 1915(b)(1).
After payment of the initial partial filing fee, the [inmate] shall
be required to make monthly payments of 20 percent of the
preceding month’s income credited to [his] account. The
agency having custody of the [inmate] shall forward payments
from [his] account to the clerk of the court each time the
amount in the account exceeds $10 until the filing fees are
paid.
28 U.S.C. § 1915(b)(2). Therefore, you must monitor the account and send payments to
the clerk of court according to the system provided in 28 U.S.C. § 1915(b)(2), that is, you
should begin making monthly payments of 20 percent of the preceding month’s income
credited to the inmate’s account.
Please make the appropriate arrangements to have these fees deducted and sent to
the court as instructed.
Deputy
_______________________ Clerk
Robert L. Phelps
U.S. District Court Clerk
Northern District of Iowa