Rodriguez-Carreras v. Kansas, State of et al

Filing 30

MEMORANDUM AND ORDER ENTERED: The uncontested motion 28 to dismiss is granted. This matter is dismissed and all relief is denied. Signed by Senior District Judge Sam A. Crow on 11/29/2012. (Mailed to pro se party Robert E. Rodriguez-Carreras by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ROBERT E. RODRIGUEZ-CARRERAS,
Plaintiff,
v.

CASE NO. 11-3008-SAC

(FNU) PITTS, et al.,
Defendants.

MEMORANDUM AND ORDER

This matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff commenced this action while incarcerated in the
Larned Correctional Mental Health Facility, Larned, Kansas.1
The matter comes before the court on the uncontested motion to
dismiss (Doc. 28) filed by defendant Goodenough. The court also has
carefully reviewed the Martinez report and attachments (Doc. 26)
submitted by the Kansas Department of Corrections.
Plaintiff’s complaint is written in a combination of English and
Spanish and broadly alleges misconduct by correctional officers and
inmates. Briefly summarized, plaintiff claims inmates planned to kill
him and that officers provided them with weapons and opportunities
to assault him.
The motion to dismiss
Defendant seeks dismissal on the grounds that the complaint both
fails to comply with the requirement of Fed. R. Civ. P. 8(a)(3) and
fails to allege facts sufficient to state a claim for relief.
1

Records maintained by the Kansas Department of Corrections reflect plaintiff has
been released and now resides in another state.

Defendant correctly notes that plaintiff has failed to state a
specific demand for relief as required by Rule 8(a)(3). Such a defect,
of course, could be remedied by allowing plaintiff an opportunity to
amend the complaint to cure that deficiency.
In considering the argument that plaintiff fails to state a claim
for relief, the court must determine “whether the complaint contains
‘enough facts to state a claim to relief that is plausible on its
face.’” Ridge v. Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th
Cir. 2007)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007)). Under this standard, “the mere metaphysical possibility that
some plaintiff could prove some set of facts in support of the pleaded
claims is insufficient; the complaint must give the court reason to
believe that this plaintiff has a reasonable likelihood of mustering
factual support for these claims.” Schneider, id.
The record does not present a plausible claim for relief. First,
the record shows that officials investigated plaintiff’s claim of a
plan to kill him but developed no evidence of any effort or plan to
harm plaintiff. While the record shows that plaintiff was disciplined
in separate incidents for attacking another inmate and for possessing
a weapon and that he sometimes engaged in self-mutilating behavior,
this suggests that plaintiff was in fear of an assault, but it does
not support a claim that such an assault was intended or that prison
officials failed to protect plaintiff.
Finally, the Prison Litigation Reform Act provides “no action
shall be brought with respect to prison conditions under section 1983…
or any other Federal law, by a prisoner confined in jail, prison, or
other correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). The record suggests

plaintiff failed to pursue any administrative grievance concerning
the claims he now presents. See Doc. 26, Ex. 3, Affidavit of Annette
Russett (stating there is no record of a grievance filed by plaintiff
on

issues

of

“safety,

discrimination

or

other

conditions

of

confinement at the Hutchinson Correctional Facility”).
Because the plaintiff has failed to present a claim for relief
that is plausible and because it appears he failed to pursue
administrative remedies, the court concludes this matter should be
dismissed.
IT IS, THEREFORE, BY THE COURT ORDERED the uncontested motion
to dismiss (Doc. 28) is granted. This matter is dismissed and all
relief is denied.
A copy of this order shall be transmitted to the plaintiff.
IT IS SO ORDERED.
DATED:

This 29th day of November, 2012, at Topeka, Kansas.

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