Queen v. Mildner et al

Filing 123

MEMORANDUM AND ORDER ENTERED: The motion of defendants Ashman, Childs, Crook, Grey, and Mildner to dismiss or, in the alternative, for summary judgment 99 is granted. Plaintiff's motion for reconsideration 118 is denied. Signed by U.S. Senior District Judge Sam A. Crow on 09/24/19. Mailed to pro se party Samuel Robert Queen by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SAMUEL ROBERT QUEEN,
Plaintiff,
v.

CASE NO. 05-3005-SAC

MILDNER, FNU, et al.,
Defendants.

MEMORANDUM AND ORDER

This matter is a Bivens1-type civil rights action filed by a
prisoner in federal custody. It comes before the Court on defendants’
motion to dismiss, or, in the alternative, motion for summary judgment
(Doc. 99). For the reasons that follow, the Court grants the motion
and dismisses this matter.
Nature of the Complaint
Plaintiff claims that defendants interfered with his access to
the courts by removing legal materials from his cell in the Special
Housing Unit (SHU), by failing to provide him with administrative
remedy forms, by failing to provide him with photocopies, by denying
him access to the law library in the SHU, by failing to provide him
with financial statements from his institutional account, and by
retaliating against him by transferring him to a higher security
prison.
Procedural History
Plaintiff commenced this action on January 7, 2005. On January
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971).
1

18, before the matter had been screened, he filed a supplement to the
complaint. On January 21, 2005, the Court directed him to submit a
financial statement that complied with 28 U.S.C. § 1915(b) and a
complaint presented on a form pleading.
Plaintiff filed an amended complaint on February 4, 2005. He
alleged a failure to file grievances and provide him with documents
needed for access to the courts, including grievances, financial
statements, and unspecified copies. He alleged that the defendants
now avoided visiting him in segregation, causing him humiliation. As
relief, he sought declaratory and injunctive relief and attorney fees.
On February 28, 2005, plaintiff filed a motion for joinder of
parties, which sought to add two defendants, J.D. Crook and Cindy
Ashman. On April 26, 2005, he filed a motion to dismiss defendant
Goode. On May 3, 2005, he filed a motion to amend the complaint seeking
to add defendants Ashman and Crook and to remove defendant Goode. He
also filed a second motion on the same day to add defendants Crook
and Ashman; that pleading alleged retaliation by Grey and Ashman for
filing lawsuits by unreasonable classification and claimed that Crook
admonished him for filing over 100 grievances during his 12 years of
incarceration. Plaintiff asserted that Crook had aided defendants in
their attempts to keep him from filing for redress.
On May 12, 2005, the Court ordered plaintiff to submit an initial
partial filing fee, denied his motion for preliminary injunctive
relief, granted his motions to add defendants Ashman and Crook,
granted the motion to dismiss defendant Goode, and granted his two
motions to amend the complaint.
Plaintiff submitted the initial partial filing fee in June 2005.
On February 2, 2006, the Court granted leave to proceed in forma

pauperis and directed the service of process on defendants Mildner,
Grey, Childs, Ashman and Crook.
On March 6, 2006, plaintiff filed a motion for leave to amend
the complaint, and on April 3, 2006, he filed a supplement to the
motion.
On July 13, 2006, defendants filed a motion to dismiss the
complaint under 28 U.S.C. § 1915(g), asserting that plaintiff was
subject to the “three strikes” provision of the federal in forma
pauperis statute. On August 3, 2006, the Court directed plaintiff to
submit the $50.00 balance owed on the filing fee. Plaintiff failed
to do that, and the Court dismissed the matter without prejudice on
September 12, 2006.
Following the dismissal, plaintiff filed two motions for relief
from judgment, a motion to modify payments, a motion to return original
exhibits, and a motion for relief from judgment in the nature of
mandamus. On October 31, 2017, the Court granted the motions for relief
from judgment, reopened the action, and requested a status report from
the parties.
In January 2018, plaintiff filed a motion to amend the complaint,
and in February 2018, he filed another motion to amend. In May 2018,
he filed a motion for judgment on the pleadings, or, in the
alternative, for summary judgment. On November 29, 2018, defendants
filed a motion to dismiss, or, in the alternative, for summary
judgment.
Plaintiff’s motion for reconsideration
Plaintiff filed an objection to the Court’s ruling denying his
most recent motions to amend, filed in January and February 2018. He
asserts the denial of those requests is an abuse of discretion.

Generally, there are three grounds that justify the reconsideration
of an interlocutory order: “(1) an intervening change in the
controlling law; (2) new evidence [that was] previously unavailable;
[or] (3) the need to correct clear error or prevent manifest
injustice.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012
(10th Cir. 2000); D. Kan. R. 7.3(b).
As reflected in the procedural history shown above, plaintiff
had filed multiple similar motions in this matter and had been advised
that he would not be allowed additional amendment except upon a showing
of good cause. The Court has reviewed its order rejecting the most
recent motions to amend in light of the standards governing a motion
for reconsideration and finds no ground to grant relief.
Legal Standards
Fed. R. Civ. P. 12(b)(1) Standard
Dismissal under Rule 12(b)(1) is appropriate if the Court lacks
subject matter jurisdiction over claims asserted in the complaint.
Dismissal under this provision is not a judgment on the merits of the
action but rather a determination that the court lacks authority to
adjudicate the matter. See Castanedea v. INS, 23 F.3d 1576, 1580 (10th
Cir. 1994)(recognizing that the federal courts are courts of limited
jurisdiction and may exercise jurisdiction only where they
specifically are authorized to do so).
Motions to dismiss brought under Rule 12(b)(1) “generally take
one of two forms: (1) a facial attack on the sufficiency of the
complaint’s allegations as to subject matter jurisdiction; or (2) a
challenge to the actual facts upon which subject matter jurisdiction
is based.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002).
If the motion is a facial challenge, the Court accepts the plaintiff’s

allegations as true. Id. Where the motion is brought as a factual
attack, a court has “wide discretion to allow affidavits, other
documents, and a limited evidentiary hearing to resolve disputed
jurisdictional facts.” Holt v. United States, 46 F.3d 1000, 1003 (10th
Cir. 1995).
Fed. R. Civ. P. 12(b)(6)
“The nature of a Rule 12(b)(6) motion tests the sufficiency of
the allegations within the four corners of the complaint.” Mobley v.
McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed. R. Civ. P. 12(b)(6)(a
complaint may be dismissed for “failure to state a claim upon which
relief can be granted”). In reviewing a motion under Rule 12(b)(6),
the court “is not to weigh potential evidence that the parties might
present at trial, but to assess whether the plaintiff’s complaint
alone is legally sufficient to state a claim for which relief may be
granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d
1226, 1236 (10th Cir. 1999)(citation omitted). Pleadings that present
only bare legal conclusions are not given the assumption of truth;
instead, they must be supported by allegations of fact. See Ashcroft
v. Iqbal, 556 U.S. 662, 677-79 (2009).
Summary Judgment Standards
Summary judgment is appropriate if the moving party shows that
there is no genuine dispute as to any material fact and that the movant
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) and
(c). A factual dispute is “material” only if it “might affect the
outcome of the suit under the governing law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The Court views all evidence
and draws all reasonable inferences in the light most favorable to
the party opposing summary judgment. Pinkerton v. Colorado Dep’t. of

Transp., 563 F.3d 1052, 1058 (10th Cir. 2009)(citation omitted).
However, “[w]here the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, there is no ‘genuine
issue for trial.’” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)).
Uncontroverted Facts
1. Plaintiff a federal prisoner who was incarcerated at the United
States Penitentiary Leavenworth (USPL) from August 17, 2001,
through August 26, 2005. (Doc. 100, Ex. 1, Decl. of Mary A. Noland,
Deputy Regional Counsel, Attach. A, Plaintiff’s Public Information
Data and Attach. B. Inmate History (Institutions)).
2. The federal Bureau of Prisons (BOP) has a four-part administrative
remedy procedure available to prisoners in its custody. (Doc. 100,
Noland decl., Attach. C, Program Statement 1330.18, Administrative
Remedy Program.)
3. The administrative remedy procedure requires a federal prisoner to
first seek the informal resolution of the complaint. If that is
unsuccessful, the prisoner must file a written grievance to the
warden of the facility. The prisoner next may appeal to the Regional
Director. Finally, the inmate may appeal to the Director, National
Inmate Appeals, in the Office of the General Counsel. (Noland decl.
par. 7.)
4. The BOP maintains SENTRY, a central database of administrative
grievances filed by federal prisoners. The database is not purged
and allows a search of prisoner grievances from the time of its
creation in 1990. (Noland decl. par. 10.)
5. SENTRY reflects that plaintiff has filed 273 administrative
grievances during his incarceration and has exhausted 48 claims,

including administrative discipline, sanitation in the SHU,
clothing, mail, storage space, classification, the Inmate
Financial Responsibility Program, filing fee deductions, financial
encumbrances, and the execution of the Judgment and Commitment
Order in his criminal case. (Noland decl. par 11 and Attach. D.,
administrative remedy generalized retrieval data.)
6. While housed in the SHU at USPL, plaintiff filed 28 administrative
grievances. (Noland decl. par. 12, Attach. E. Administrative Remedy
Data 05-04-2004 – 08-31-2005.)
7. The BOP allows federal correctional facilities to designate an
Administrative Remedy Coordinator (ARC) to oversee the grievance
procedure at all levels. At USPL, this function is managed by the
Executive Assistance to the Warden. Incident to this
responsibility, the ARC is available to meet with inmates during
institutional rounds, weekly rounds in the SHU, and at other times.
(Noland decl., par. 14, Attach. C.)
8. The ARC and the Administrative Remedy Clerk are available to address
concerns presented by informal requests to staff sent through
institutional mail. Id. At the time relevant to this action, the
USPL population did not have electronic mail. Id.
9. The BOP allows the rejection of grievances on certain grounds, such
as failure to sign, submission at the wrong tier of review, and
failure to provide verification to support late submission. (Noland
decl., par. 16, Attach. C.)
10.A prisoner may submit a grievance he deems sensitive directly to
the regional or national levels. Id.
11. Defendants Mildner, Childs, and Gray were members of plaintiff’s
Unit Team during the relevant period. They routinely met with inmates

in their caseload who were housed in the SHU. (Ex. 2, Declaration of
Charles Mildner; Ex. 3, Declaration of John Childs; Ex. 4, Declaration
of Michael Gray.) The Unit Team members conducted rounds as a group,
met with prisoners assigned to their caseload, and brought materials
with them to address concerns with those prisoners. Id. These weekly
rounds included the SHU and Building 63 when that building was used
as overflow housing for prisoners assigned to the SHU. Id.
Analysis
Claims against defendants in their official capacity
Plaintiff appears to sue defendants in both their individual and
official capacities. Section 1331 provides that “[t]he district
courts shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United States.” 28
U.S.C. § 1331. In Bivens, the Supreme Court identified a remedy for
constitutional violations committed by federal officials. Bivens, 403
U.S. 388. It is settled, however, that “a Bivens claim can be brought
only against federal officials in their individual capacities” and
cannot be presented directly against the United States, federal
agencies, or federal officials acting in their official capacities.
Smith v. United States, 561 F.3d 1090, 1099 (10th Cir. 2009)(citing
Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001)); see also Hatten
v. White, 275 F.3d 1208, 1210 (10th Cir. 2002)(“A Bivens action may
not be brought against federal agencies or agents acting in their
official capacities.”).
Plaintiff’s claims against defendants in their official
capacities therefore must be dismissed.
Exhaustion of administrative remedies
The Prison Litigation Reform Act (PLRA) states: “No action shall

be brought with respect to prison conditions … by a prisoner confined
in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a). The exhaustion requirement applies to any prisoner who
presents a claim concerning “general circumstances or particular
episodes” of prison life. See Porter v. Nussle, 534 U.S. 516, 532
(2002). “Proper exhaustion demands compliance with an agency’s
deadlines and other critical procedural rules because no adjudicative
system can function effectively without imposing some orderly
structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S.
81, 90 (2006).
The exhaustion requirement is mandatory. Jones v. Bock, 549 U.S.
199, 211 (2007). However, the requirement extends only to the
exhaustion of “available” remedies. See Ross v. Blake, 136 S. Ct. 1850
1858-60 (2016). An administrative procedure may be unavailable “when
prison administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.” Id. at 1860.
Because the failure to exhaust is an affirmative defense,
defendants have “the burden of asserting and proving that the
plaintiff did not utilize administrative remedies.” Tuckel v. Grover,
660 F.3d 1249, 1254 (10th Cir. 2011). However, “[o]nce a defendant
proves that a plaintiff failed to exhaust … the onus falls on the
plaintiff to show that remedies are unavailable to him.” Id.
The records produced by defendants show that plaintiff filed 28
grievances between May 2004 and August 2005 while held in the SHU,
(Doc. 100, Ex. 1, Attach. E), and the declarations by the Unit Team
members who had regular contact with the plaintiff set out the process

for requesting forms and addressing concerns.
The records presented by defendants show that plaintiff filed
grievances on a variety of issues, but there is no evidence that he
completed the remedy process on the issues he presents in this action.
In contrast, plaintiff makes only general statements that he was not
provided adequate access to the administrative remedy procedures; his
conclusory allegations are insufficient to demonstrate that there is
a genuine issue of fact in this matter.
Moreover, as defendants argue, plaintiff’s claim concerning
access to the grievance procedure is essentially the same as a claim
presented in his amended complaint in Case No. 05-3275-SAC. In that
case, plaintiff alleged the intentional denial of the right to seek
redress of grievances by defendants including defendants Gray,
Childs, and Mildner. This Court rejected that claim, and the decision
was affirmed on appeal. Queen v. McIntire, et al., 290 F.3d Appx. 162,
2008 WL 3906751 (10th Cir. Aug. 25, 2008). Likewise, in Case No.
05-3022, plaintiff, proceeding under both Bivens and the Federal Tort
Claims Act, alleged a loss of legal materials incident to his May 2004
transfer into the SHU, the denial of remedy forms, and the destruction
of remedy forms. The Court granted defendants’ motion to dismiss, or,
in the alternative, for summary judgment, finding, in part, that the
record submitted by defendants suggested that plaintiff did not
properly exhaust available remedies concerning claims of access to
the grievance procedure and retaliatory conduct. Plaintiff did not
appeal.
These claims are subject to dismissal under the principles of
res judicata and issue preclusion. “‘The doctrine of res judicata,
or claim preclusion, will prevent a party from relitigating a legal

claim that was or could have been the subject of a previously issued
final judgment.’” Sullivan v. Davita Healthcare Partners, Inc., ___
Fed. Appx. ___, 2019 WL 2756447, at *2 (10th Cir. Jul. 2, 2019)(quoting
MACTEC, Inc. v. Gorelick, 427 F.3d 821, 831 (10th Cir. 2005)). Claim
preclusion requires three elements: first, a final judgment on the
merits in the earlier action; second, identity of the parties or
privies in the two lawsuits; and third, the identity of the cause of
action in both suits. Lenox MacLaren Surgical Corp. v. Medtronic,
Inc., 847 F.3d 1221, 1239 (10th Cir. 2017)(quoting King v. Union Oil
Co. of Cal., 117 F.3d 443, 445 (10th Cir. 1997)).
Issue preclusion applies to bar the consideration of claims where
the issue previously decided is identical; the prior action was
decided on the merits; the party against whom the doctrine is asserted
was a party or in privity with a party in the prior action; and the
party against whom the doctrine is asserted had a full and fair
opportunity to litigate the question in the prior action. Matosantos
Commercial Corp. v. Applebee’s Int’l, Inc., 245 F.3d 1203, 1207 (10th
Cir. 2001).
Here, it appears that plaintiff presented essentially the same
claim concerning his access to administrative remedy procedures
against the same parties in the present action, in Case No. 05-3022
and Case No. 05-3275. Because the Court reached a decision adverse
to plaintiff on that issue in Case Nos. 05-3022 and 05-3275, that claim
should not be relitigated in the present action.
Claims for declaratory and injunctive relief
Under the mootness doctrine, the Court must consider whether “a
definite controversy exists throughout the litigation and whether
conclusive relief may still be conferred by the court despite the lapse

of time and any change of circumstances that may have occurred since
the commencement of the action.” Jordan v. Sosa, 654 F.3d 1012, 1024
(10th Cir. 2011)(quoting Moore’s Federal Practice § 101.90 (3d ed.
2010)). “Past exposure to illegal conduct does not in itself show a
present case or controversy regarding injunctive relief.” O’Shea v.
Littleton, 414 U.S. 488, 495 (1974).
“The touchstone of the mootness inquiry is whether the
controversy continues to touch the legal relations of parties having
adverse legal interests in the outcome of the case, and this legal
interest must be more than simply the satisfaction of a declaration
that a person was wronged.” Wirsching v. Colorado, 360 F.3d 1191, 1196
(10th Cir. 2004)(quotations omitted)(holding prisoner’s claims for
declaratory and injunctive relief were moot due to his release from
prison). See also Mitchell v. Estrada, 225 F.App’x 737, 741 (10th Cir.
2007)(“An inmate’s transfer from a prison facility generally moots
claims for declaratory and injunctive relief related to conditions
of confinement.”)
Plaintiff’s requests for injunctive relief are moot due to his
transfer from the USPL and must be dismissed.
Plaintiff’s claims for monetary relief and attorney’s fees
First, to the extent plaintiff’s complaint may be read to seek
compensatory damages, he cannot recover because he does not allege
that he sustained a physical injury. The Prison Litigation Reform Act
provides, in relevant part, that “[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 injury.” 42 U.S.C. §1997e(e). “The
statute limits the remedies available, regardless of the rights

asserted, if the only injuries are mental or emotional.” Searles v.
VanBebber, 251 F.3d 869, 876 (10th Cir. 2001), cert. denied, 536 U.S.
904 (2002).
Next, plaintiff’s claim for punitive damages requires a showing
that the defendants’ conduct was “motivated by evil motive or intent,
or … involves reckless or callous indifference to the federally
protected rights of others.” Searles, 251 F.3d at 879 (quoting Smith
v. Wade, 461 U.S. 30, 56 (1983)). Because plaintiff has not plausibly
alleged such conduct, the Court concludes that his request for
punitive damages must be dismissed.
Plaintiff also seeks attorneys’ fees as relief. However,
plaintiff, as a party proceeding pro se, is not entitled to such relief
as he has not incurred such fees. See Kay v. Ehrler, 499 U.S. 432
(1991)(holding that a party who proceeds pro se in an action under
42 U.S.C. § 1983 may not recover attorneys’ fees).
Retaliatory transfer
Finally, plaintiff alleges that he was subjected to retaliatory
conduct due to his pursuit of legal remedies. He specifically
identifies his transfer from USPL to the United States Penitentiary,
Marion, as a retaliatory act.
Prison officials may not retaliate against a prisoner for
exercising constitutional rights. Smith v. Maschner, 899 F.2d 940,
947 (10th Cir. 1990). However, to prevail on a claim of unlawful
retaliation, a plaintiff must show that he was engaged in a protected
activity, that the defendants caused him an injury that would deter
a person of ordinary firmness from continuing in that activity, and
that the actions of the defendants were substantially motivated by
the plaintiff’s exercise of constitutional rights. Shero v. City of

Grove, 510 F.3d 1196, 1203 (10th Cir. 2007).
An “inmate claiming retaliation must allege specific facts
showing retaliation because of the exercise of the prisoner’s
constitutional rights.” Fogle v. Pierson, 435 F.3d 1252, 1264 (10th
Cir. 2006)(quotations and citations omitted). Accordingly, “it is
imperative that plaintiff’s pleading be factual and not conclusory.
Mere allegations of constitutional retaliation will not suffice.”
Frazier v. Dubois, 922 F.2d 560, 562 n. 1 (10th Cir. 1990).
As defendants point out, plaintiff himself has supplied the
request for transfer completed in May 2005, which identifies the
factual grounds for his redesignation: in December 2004, plaintiff
was seen pushing two homemade weapons from his cell window. The weapons
appeared to be made from melted food tray lids; one of them measured
19 inches, and the other measured 13 inches. In January 2005, plaintiff
was found guilty of possessing a weapon. He also was found guilty in
January 2005 of threatening and refusing an order. The report states,
“[d]ue to the seriousness and number of charges QUEEN has been found
guilty of in the past twelve months, the security constraints of USP
Marion are recommended.” (Doc. 89, Attach. p. 21.).
Plaintiff has not refuted these grounds, and he makes only bare
claims concerning the defendants’ motivation for requesting his
transfer. The Court concludes plaintiff has not plausibly stated a
claim for retaliatory conduct.
Conclusion
For the reasons set forth, the Court finds defendants’ motion
to dismiss or, in the alternative, for summary judgment should be
granted.

IT IS, THEREFORE, BY THE COURT ORDERED the motion of defendants
Ashman, Childs, Crook, Grey, and Mildner to dismiss, or, in the
alternative, for summary judgment (Doc. 99) is granted.
IT IS FURTHER ORDERED plaintiff’s motion for reconsideration
(Doc. 118) is denied.
IT IS SO ORDERED.
DATED:

This 24th day of September, 2019, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge