Frierson v. Roberts et al

Filing 5

ORDER ENTERED: Plaintiff's motion 2 for leave to proceed in forma pauperis is granted. Plaintiff's request in the complaint for preliminary injunctive relief is denied. Plaitniff is granted twenty (20) days to show cause why the complaint should not be dismissed. Plaintiff's motion 3 for appointment of counsel is denied without prejudice. Signed by Senior District Judge Sam A. Crow on 8/17/2011. (Mailed to pro se party Melvin Frierson by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MELVIN FRIERSON,
Plaintiff,
CIVIL ACTION
No. 11-3044-SAC

vs.
RAY ROBERTS, et al.,
Defendants.

ORDER
Plaintiff, an inmate confined in Norton Correctional Facility
(NCF) in Norton, Kansas, proceeds pro se on a complaint filed under
42 U.S.C. § 1983. Plaintiff has paid the initial partial filing fee
assessed by the court under 28 U.S.C. § 1915(b)(1), and is granted
leave to proceed in forma pauperis.

Plaintiff remains obligated to

pay the remainder of the $350.00 district court filing fee in this
civil action, through payments from his inmate trust fund account as
authorized by 28 U.S.C. § 1915(b)(2).
Because plaintiff is a prisoner, the court is required to
screen the complaint and to dismiss it or any portion thereof that
is frivolous, fails to state a claim on which relief may be granted,
or seeks monetary relief from a defendant immune from such relief.
28 U.S.C. § 1915A(a) and (b).

Although a complaint filed pro se by

a party proceeding in forma pauperis must be given a liberal
construction, Haines v. Kerner, 404 U.S. 519, 520 (1972), even under
this standard a pro se litigant’s “conclusory allegations without
supporting factual averments are insufficient to state a claim upon
which relief can be based.”

Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir.1991).

Plaintiff bears the burden of alleging “enough

facts to state a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

See

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008)(stating and
applying Twombly standard for dismissing a complaint as stating no
claim for relief). Twombly "expounded the pleading standard for all
civil actions."
(2009).

Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1953

"A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged."
Id. at 1949.
“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.”

West v.

Atkins, 487 U.S. 42, 48 (1988).
Plaintiff names the following defendants in their individual
and official capacity:

Ray Roberts (as Secretary of the Kansas

Department of Corrections), Jay Shelton (as the NCF Warden), Sharon
Petrie (as an NCF Unit Team Manager), Jaye Hackbarth (as an NCF Unit
Team Counselor), F. Maulding (as an NCF Correctional Officer), and
J. Johnson (as an NCF Correctional Officer).

He seeks damages and

preliminary injunctive relief on the following allegations and
claims.
Plaintiff alleges defendant Johnson committed sexual battery
on plaintiff by conducting improper pat searches on October 2 and
23, 2010, that involved Johnson cuffing plaintiff’s penis with
Johnson’s open palm.
2

Plaintiff states he filed an inmate grievance claiming sexual
misconduct by Johnson, and claims Petrie breached a confidentiality
clause in the prison grievance procedure by discussing plaintiff’s
grievance

and

two

prisoners

in

Plaintiff

further

a

similar

group

grievances

setting

claims

he

with
was

submitted

the

two

excluded

by

other

from

two

other

prisoners.

the

internal

investigation of Johnson’s sexual misconduct, and claims Petrie
serving on that investigation team was a conflict of interest.
Plaintiff also states he also filed an inmate grievance against
Petrie alleging breach of confidentiality and discrimination, and
claims Hackbarth’s processing of that grievance was a conflict of
interest because Petrie is Hackbarth’s supervisor.
On these allegations, plaintiff claims Johnson’s improper
searches violated plaintiff’s rights under the Fourteenth Amendment
to equal protection and to not be subjected to cruel and unusual
punishment.
Plaintiff next claims Maulding and Petrie were deliberately
indifferent to plaintiff’s rights to participate in the facility’s
internal investigation of inmate claims regarding Johnson’s conduct,
and contends Maulding and Petrie discriminated against plaintiff on
the basis of his race and thereby denied plaintiff his rights to
equal protection and due process.
Plaintiff claims Hackbarth’s deliberate indifference to the
grievance chain of command protocol procedure was a conflict of
interest which denied plaintiff due process and equal protection,
and violated plaintiff’s First Amendment right to petition the
government.
Plaintiff

also

contends

Roberts
3

and

Shelton

violated

plaintiff’s right to due process and equal protection because they
were legally responsible for operating NCF and protecting all NCF
inmates.
Plaintiff seeks compensatory and punitive damages, and asks the
court to: (1) stop Johnson from conducting any unreasonable pat
searches of plaintiff, and from physically or verbally harassing
plaintiff; (2) to restrain Johnson, Maulding, Hackbarth, and Petrie
from

singling

out

plaintiff

for

punishment,

harassment,

or

retaliation; and (3) require proper processing of his grievance
against Petrie.
Injunctive Relief
To the extent plaintiff seeks preliminary injunctive relief
this

request

is

denied.

A

preliminary

injunction

is

an

extraordinary equitable remedy which seeks to “preserve the relative
positions of the parties until a trial on the merits can be held.”
University of Texas v. Camenisch, 451 U.S. 390, 395 (1981). A party
seeking injunctive relief must show a substantial likelihood that it
will prevail on the merits, that absent the injunction it was suffer
an irreparable injury, the threatened injury outweighs the cost to
its opponent, and the injunction is not against the public interest.
Westar Energy, Inc. v. Lake, 552 F.3d 1215, 1224 (10th Cir.2009);
Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1246
(10th Cir.2001). The right to relief must be clear and unequivocal.
Schrier v. University of Colo., 427 F.3d 1253, 1258 (10th Cir.2005).
Having

carefully

reviewed

the

request

in

light

of

the

deficiencies identified herein below, the court finds plaintiff has
not demonstrated a substantial likelihood of prevailing on the
merits of his claims, or any likelihood of irreparable harm in the
4

absence of the injunctive relief sought.

The court thus finds no

basis for granting preliminary injunctive relief in this matter.
Official Capacity Claims
To the extent plaintiff seeks damages from defendants in their
official capacity, his claims are barred by the Eleventh Amendment.
The Eleventh Amendment bars suits in federal court against states,
and against state officers in their official capacities for money
damages.

Edelman v. Jordan, 415 U.S. 651, 663 (1974).

See also

Beck v. Kansas Adult Authority, 241 Kan. 13, 21 (1987)(“The State of
Kansas has not waived its sovereign immunity from suits seeking
monetary damages under 42 U.S.C. § 1983.”). Also, the Supreme Court
has held that neither states nor state officers sued in their
official capacities are "persons" within the meaning of 42 U.S.C. §
1983.

Will v. Michigan Department of State Police, 491 U.S. 58, 71

(1989).
To the extent plaintiff seeks permanent prospective injunctive
relief from defendants in their official capacity, no such relief
can be granted absent plaintiff’s amendment of the complaint to cure
the deficiencies identified by the court below such that a viable
basis for obtaining relief under 42 U.S.C. § 1983 is presented.
Allegations of Sexual Battery
Plaintiff’s allegations regarding Johnson’s alleged improper
pat-down search on two occasions three weeks apart are insufficient
to plausibly find that plaintiff was subjected to cruel and unusual
punishment.

Not “every malevolent touch by a prison guard gives

rise to a federal cause of action.”
1, 9 (1992).

Hudson v. McMillian, 503 U.S.

Courts have found minor isolated instances of sexual

touching by a guard during an inmate search are insufficient to be
5

constitutionally significant.

See e.g., Berryhill v. Schriro, 137

F.3d 1073, 1076 (8th Cir.1998)(no sexual assault required for Eighth
Amendment violation where guard briefly touched prisoner’s buttocks
twice with sexual comment or banter, and prisoner thought guard was
trying to embarrass rather than rape him).

Compare Boddie v.

Schnieder, 105 F.3d 857, 861 (2nd Cir.1997)(“Severe or repetitive
sexual abuse of an inmate by a prison officer can be ‘objectively,
sufficiently serious’ enough to constitute an Eighth Amendment
violation.”).

Because plaintiff’s allegations present no plausible

basis for finding “severe or repetitive” sexual abuse in the present
case, no tenable Eighth Amendment claim is stated.

The alleged

misconduct, instead, presents at most if at all a state tort to be
pursued in the state courts where, as in this case, the court finds
no

actionable

exercising

its

supplemental jurisdiction to consider such a state law claim.1

See

Redd

v.

federal

Harvey,

2010

claim

WL

for

3434212,

purposes

*2

of

(W.D.La.2010)(prisoner’s

allegations of sexual harassment by female officer amounted to state
intentional tort rather than Eighth Amendment claim, citing cases
for comparison).
Grievance Procedure and Internal Investigation
The

court

also

finds

no

support

plaintiff’s equal protection claim.

1

in

the

complaint

for

Plaintiff complains he was the

Pursuant to 28 U.S.C. § 1367(c)(3), a district court has the
discretion to decline to exercise supplemental jurisdiction over
remaining state-law claims. “When all federal claims have been
dismissed, the court may, and usually should, decline to exercise
jurisdiction over any remaining state claims.” Smith v. City of
Enid ex rel. Enid City Comm'n, 149 F.3d 1151, 1156 (10th
Cir.1998)(citing 28 U.S.C. § 1367(c)(3) and Ball v. Renner, 54 F.3d
664, 669 (10th Cir.1995)).
6

only prisoner not interviewed in the internal investigation of three
prisoner misconduct claims filed against Johnson, and contends this
constituted racial discrimination because he was the only African
American prisoner in that group of three prisoners.
The
prohibits

Equal

Protection

Clause

the

government

from

individuals differently.

of

the

Fourteenth

Amendment

similarly

situated

treating

City of Cleburne, Tex. v. Cleburne Living

Center, 473 U.S. 432, 439 (1985).

A claim of discrimination based

on a suspect classification, such as plaintiff alleges in the
present case, is subject to strict scrutiny.

Price-Cornelison v.

Brooks, 524 F.3d 1103, 1109 (10th Cir.2008).

Thus to state an

actionable claim, plaintiff must be able to show that he was singled
out for different treatment than others who were similarly situated,
and that defendants acted intentionally with discriminatory intent
as a motivating factor.

See Marshall v. Columbia Lea Regional

Hosp., 345 F.3d 1157, 1168 (10th Cir.2003).

“Something more than

speculation and conjecture is necessary for proof.”

United States

v. Manuel, 992 F.2d 272, 276 (10th Cir.1993).
Plaintiff’s claim of racial discrimination is conclusory at
best.

Plaintiff has no fundamental right to be interviewed in the

prison’s internal investigation of his inmate grievance, and his
bare allegation that he was treated differently than two other
prisoners who filed similar grievances against a particular officer
is insufficient to establish that plaintiff was similarly situated
to the other two prisoners in all relevant respects for purposes of
prison staff deciding whether to investigate the specific incidents
alleged in each of the grievances.
367,

371

(10th

See Templeman v. Gunter, 16 F.2d

Cir.1994)(prisoner’s
7

claim

“that

there

are

no

relevant differences between him and other inmates that reasonably
might account for their different treatment is not plausible or
arguable”). Plaintiff also alleges no intentional discrimination by
any defendant based on plaintiff’s race, or that any defendant’s
actions were motived by a discriminatory purpose.

According, his

claim of being denied equal protection in the internal investigation
of his inmate grievance presents is subject to being summarily
dismissed.
Nor do plaintiff’s allegations present a viable claim of being
denied due process by any defendant.

To state an actionable due

process claim, plaintiff must first establish there is a liberty or
property interest protected by the Due Process Clause.

Camuglia v.

The City of Albuquerque, 448 F.3d 1214, 1219 (10th Cir.2006).

No

protected liberty interest is evident on the face of plaintiff’s
allegations.

Plaintiff has no federal constitutional right to

participate in a prison investigation of his grievance, or to prison
staff compliance with a grievance procedure if one is provided. See
e.g. Walters v. Corrections Corp. of America, 119 Fed.Appx. 190, 191
(10th

Cir.2004)("When

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 grievance."), cert. denied, 546 U.S. 865 (2005); Sims
v. Miller, 5 Fed.Appx. 825, 828 (10th Cir.2001)(“[I]nsofar as
plaintiff contended that CDOC officials failed to comply with the
prison grievance procedures, he failed to allege the violation of a
federal

constitutional

Corrections,

128

right.");

Fed.Appx.

441,
8

Walker
445

(6th

v.

Mich.

Dept.

of

Cir.2005)(collecting

cases).
Supervisor Liability
The court further finds plaintiff’s claims against Warden
Shelton

and

dismissed

Secretary

because

Roberts

plaintiff

are

subject

fails

to

to

being

identify

any

summarily
personal

participation by these defendants in the alleged violation of his
constitutional rights, and plaintiff may not rest on the doctrine of
respondeat superior.

Rizzo v. Goode, 423 U.S. 362 (1976).

“To

establish a violation of § 1983 by a supervisor, as with everyone
else ... the plaintiff must establish a deliberate, intentional act
on the part of the defendant to violate the plaintiff's legal
rights.”

Porro

v.

Barnes,

624

F.3d

1322,

1327-28

(10th

Cir.2010)(internal quotation marks and citation omitted). Plaintiff
alleges no factual basis for finding these defendants, identified
only as being responsible for operation of NCF, ever “promulgated,
created, implemented or possessed responsibility for the continued
operation

of

a

policy

that

...

caused

the

complained

of

constitutional harm, and acted with the state of mind required to
establish

the

alleged

constitutional

deprivation.”

Dodds

v.

Richardson, 614 F.3d 1185, 1199 (10th Cir.2010)(stating requirements
for § 1983 claim against a defendant supervisor).
Notice and Show Cause Order to Plaintiff
Finding no plausible basis is presented for plaintiff to
proceed under § 1983 against any defendant, the court directs
plaintiff to show cause why the complaint should not be summarily
dismissed

as

stating

no

claim

for

relief.

28

U.S.C.

§

1915(e)(2)(B)(ii). The failure to file a timely response may result
in the complaint being dismissed for the reasons stated herein, and
9

without further prior notice to plaintiff.2
IT IS THEREFORE ORDERED that plaintiff’s motion for leave to
proceed in forma pauperis (Doc. 2) is granted, with payment of the
remainder of the $350.00 district court filing fee to proceed as
authorized by 28 U.S.C. § 1915(b)(2).
IT IS FURTHER ORDERED that plaintiff’s request in the complaint
for preliminary injunctive relief is denied.
IT IS FURTHER ORDERED that plaintiff is granted twenty (20)
days to show cause why the complaint should not be dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
IT IS FURTHER ORDERED that plaintiff’s motion for appointment
of counsel (Doc. 3) is denied without prejudice.
IT IS SO ORDERED.
DATED:

This 17th day of August 2011 at Topeka, Kansas.

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

2

Plaintiff’s motion for appointment of counsel is denied
without prejudice.
Plaintiff has no right to the assistance of
counsel in this civil action. Durre v. Dempsey, 869 F.2d 543, 647
(10th Cir.1989). Having reviewed petitioner's claims, his ability
to present said claims, and the complexity of the legal issues
involved, the court finds the appointment of counsel in this matter
is not warranted.
See Long v. Shillinger, 927 F.2d 525, 526-27
(10th Cir.1991)(factors to be considered in deciding motion for
appointment of counsel).
10