Strong v. Werholtz et al

Filing 7

MEMORANDUM AND ORDER ENTERED: On or before January 22, 2012, plaintiff shall submit an initial partial filing fee of $2.50. Any objection to this order must be filed on or before the date payment is due. The failure to file a timely response m ay result in the dismissal of this action without prejudice and without additional prior notice to plaintiff. Plaintiff is granted to and including January 22, 2012, to show cause why this matter should not be dismissed. Plaintiff's motion 3 to appoint counsel is denied. Signed by Senior District Judge Sam A. Crow on 12/22/2011. (Mailed to pro se party Calvin L. Strong by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CALVIN L. STRONG,
Plaintiff,
v.

CASE NO. 11-3090-SAC

ROGER WERHOLTZ, et al.,
Defendants.

MEMORANDUM AND ORDER

This matter is a civil rights complaint filed pursuant to 42
U.S.C. § 1983. Plaintiff, a prisoner in state custody, proceeds pro
se and seeks leave to proceed in forma pauperis.
Motion to proceed in forma pauperis
The motion is governed by 28 U.S.C. § 1915(b). Pursuant to 28
U.S.C. § 1915(b)(1), the court must assess as an initial partial
filing fee twenty percent of the greater of the average monthly
deposits or average monthly balance in the prisoner's account for
the six months immediately preceding the date of filing of a civil
action.
Having examined the records submitted by the plaintiff, the
court finds the average monthly deposit to his account is $9.75,
and the average monthly balance is $12.95. The court therefore
assesses an initial partial filing fee of $2.50, twenty percent of

the average monthly balance, rounded to the lower half dollar.1
Motion to appoint counsel
Plaintiff moves for the appointment of counsel (Doc. 3). A
party

in

a

civil

action

has

no

constitutional

right

to

the

assistance of counsel. Bethea v. Crouse, 417 F.2d 504, 505 (10th
Cir. 1969).

Rather, the decision whether to appoint counsel in a

civil matter lies in the discretion of the district court. Williams
v. Meese, 926 F.2d 994, 996 (10th Cir. 1991).

The court should

consider "the litigant's claims, the nature of the factual issues
raised in the claims, the litigant's ability to present his claims,
and the complexity of the legal issues raised by the claims. The
court has considered the record and finds the appointment of counsel
is not appropriate in this matter. The plaintiff’s claims do not
appear to present unusually complicated facts or issues, and, as set
forth below in greater detail, the assertions in this matter do not
appear to implicate constitutionally protected rights. Accordingly,
the motion will be denied.
Screening
Because
governmental

plaintiff
employees,

is
the

a

prisoner
court

is

seeking
required

relief
to

against

screen

the

complaint and to dismiss it or any portion of it 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.

1

Plaintiff will be required to pay the balance of the $350.00
filing fee in installments calculated pursuant to 28 U.S.C.
§ 1915(b)(2).
2

§ 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), such a party’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). “[The] court ... will not supply
additional factual allegations to round out a plaintiff's complaint
or construct a legal theory on a plaintiff's behalf.” Whitney v. New
Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997). Rather, plaintiff
must allege “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).
Plaintiff submitted a 13-page complaint and approximately 600
pages of supporting exhibits. He names 35 individual defendants and
broadly claims that the complaint concerns events that began in July
2003, following the revocation of his conditional release, when he
became the subject of “nonstop harassment and retali[a]tory actions”
(Doc. 1, p. 5).
In

Count

1,

plaintiff

asserts

that

he

was

subjected

to

retaliation after a special parole board hearing in February 2010.
He states that afterwards, he was issued false disciplinary reports
alleging theft and poor work performance and that he was later
denied

due

process

in

hearings
3

conducted

on

those

reports.

Plaintiff

also

appears

to

allege

a

conspiracy

among

state

corrections officials, a mental health agency, and Correct Care
Solutions, Inc. to cause the denial of his release on parole.
In Count 2, plaintiff claims that he was denied due process and
equal protection and subjected to cruel and unusual punishment. He
complains that after the parole hearing in September 2010, he was
subjected

to

an

interrogation

by

two

Shawnee

County

Police

Detectives concerning the unsolved disappearance of a child.

He

claims the board retaliated in February 2011 by denying parole on
new grounds of anger and hostility. Finally, he claims that in
February 2011, the prison accounting director refused to comply with
a court order to debit plaintiff’s prison account for fees.
In Count 3, plaintiff requests injunctive and declaratory
judgment on the ground that he was denied due process by parole
procedures. He asserts the board has used the same reasons to deny
his parole requests for approximately 15 years.

He alleges secret

testimony has been given against him, and he states that after his
February 2010 hearing, he advised the board of his innocence, that
he had been railroaded, and that he intended to seek counsel upon
his release. He contends that after this, he was issued disciplinary
reports in order to damage his changes for release.
The

court

has

considered

the

plaintiff’s

claims

and

has

examined the materials he submits in support of the complaint.
Having conducted this review, the court finds this matter is subject
to dismissal for failure to state a claim upon which relief may be
granted. This conclusion rests on several grounds.
4

First,

while

plaintiff

alleges

retaliatory

conduct

and

harassment, the materials before the court do not reasonably support
these allegations.

A claim for retaliation may not be based upon

bare speculation.

Rather, a plaintiff “must ... allege specific

facts showing retaliation because of the exercise of the prisoner’s
constitutional rights.” Frazier v. Dubois, 922 F.2d 560, 562 n. 1
(10th Cir. 1990). Thus, the prisoner must “must prove that ‘but for’
the retaliatory motive, the incidents to which he refers ... would
not have taken place.” Peterson v. Shanks, 149 F.3d 1140, 1144
(quoting Smith v. Maschner, 899 F.2d 940, 949–50 (10th Cir. 1990)).
Here,

plaintiff’s

claim

of

retaliatory

conduct

arising

following a parole hearing is not supported by any link between the
disciplinary reports prepared by corrections staff and the hearing
conducted by the state parole board. The materials concerning the
administrative hearings conducted on the disciplinary reports do not
show any relation to the parole hearing, nor does any of the
material related to the hearings suggest that plaintiff did not
receive appropriate due process. Rather, the allegation of theft
arose from plaintiff’s taking possession of a fan from the workplace
that he believed had been discarded. The theft charge was reduced,
and plaintiff was convicted of taking without permission (Ex. A, pp.
10-24). The work performance charge arose from allegations that
plaintiff had left the work area and returned to his housing area
without permission. After a hearing, plaintiff was found not guilty
(Id., pp. 73-79).
Likewise,

plaintiff’s

allegation
5

of

a

conspiracy

is

not

adequately supported. A claim of conspiracy must be based upon
allegations of “specific facts and concerted action.” Hunt v.
Bennett,

17

F.3d

1253,

1522-68

(10th

Cir.

1994).

Neither

the

complaint nor the exhibits provide any viable support for this
claim.
Next, to the extent plaintiff broadly alleges a denial of
protected rights by his interrogation by police, he does not allege
how this interfered with his rights or how he was harmed. The record
shows that the warden’s response to the plaintiff’s subsequent
grievance

explained

to

plaintiff

that

“[w]hen

an

outside

law

enforcement agency requests to interview an inmate, the interview is
scheduled and the inmate will attend the interview per K.A.R. 44-12501. It is up to the inmate, however, whether or not he wishes to
answer questions during the interview.” (Ex. D, p. 116.) And while
plaintiff appears to allege he suffered retaliation as a result of
this interrogation, he does not adequately plead any link between
the interrogation by police detectives and a denial of release by
the parole board.
Finally, while the complaint asserts that the prison accounting
manager failed to allow the payment of fees from his institutional
account and that the deputy warden improperly refused to allow him
free legal copies, the materials plaintiff supplies demonstrate the
grounds for these actions.
First, the accounting manager notified plaintiff that his
account had insufficient resources for the payments in question (Ex.
D, p. 44). Next, the materials appended to the complaint show the
6

decision to deny legal copies was due to the fact that plaintiff was
working with legal services. Plaintiff was advised that his attorney
would provide materials necessary for court proceedings and that his
request for personal copies would not be granted; finally, staff
pointed out that although internal policy normally limits an inmate
to $50.00 in indigent copies, plaintiff already had been granted
$159.20 in indigent copies (Ex. C, pp. 83-92).
Finally, to the extent plaintiff challenges the denials of
parole on procedural grounds, the court finds no arguable basis to
allow the complain to proceed.
The relevant exhibits provided by the plaintiff reflect three
decisions passing him for parole.
The first action notice, dated September 17, 2008 (Ex. D., p.
76) states:
After considering all statutory factors, the decision of
the Kansas Parole Board is: pass to October 2010. Recs:
assessment for mental health needs including axis 1
diagnosis and follow all recommendations for treatment and
care;
participate
in
self
help
program;
remain
disciplinary report free. Pass reasons: two (2) times in
prison; failure on parole; objections.
The second action notice, dated March 2, 2010 (Id., p. 74)
states:
...No change in prior decision. Pass to October 2010.
Recs: assessment for mental health needs including axis 1
diagnosis and follow all recommendations for treatment and
care;
participate
in
self
help
program;
remain
disciplinary report free. Pass reasons: history of
criminal activities; three (3) times in prison; failure on
parole; objections; inmates does not have a parole plan to
meet his needs or to provide for public safety; the inmate
has not demonstrated behavioral insights necessary to
decrease his risk to re-offend; the inmate has not
demonstrated insight(s) into his offense behavior; the
7

inmate continues to demonstrate high risk
programmatic interventions to mitigate risk.

despite

The third action notice is dated February 15, 2011 (Id., p.
66), and states:
...pass to October 2013. Recs: remain disciplinary report
free; work with mental health to deal with issues of anger
and hostility. Pass Reasons: serious nature/circumstance
of crime; history of criminal activities; violent nature
of crime; objections; disciplinary reports; the inmate has
not demonstrated the ability to work on the areas needed
to reduce his risk to re-offend; the inmate has not
demonstrated behavioral insights necessary to decrease his
risk to re-offend; the inmate has not demonstrated
insight(s) into his offense behavior; inmate has indicated
a pattern of behavior indicative of increase risk to reoffend.
Plaintiff’s allegations do not state a claim for relief.
“The Due Process Clause applies when government action
deprives a person of liberty or property.” Malek v. Haun, 26 F.3d
1013, 1015 (10th Cir. 1994)(quoting Greenholtz v. Neb. Penal
Inmates, 442 U.S. 1, 7 (1979)). A liberty interest must arise from
some constitutional or statutory provision. Id.
The Constitution does not provide any right to parole from a
valid sentence. Id. Likewise, it is well-settled that no such
liberty interest arises from Kansas law. “[T]he Kansas parole
statute does not give rise to a liberty interest when the matter
before the Board is the granting or denial of parole to one in
custody. Parole, like probation, is a matter of grace in this
state. It is granted as a privilege and not as a matter of
fundamental right.” Gilmore v. Kan. Parole Bd., 756 P.2d 410, 414
(Kan. 1988).
Thus, plaintiff’s vague procedural challenge to the decision
8

of the Kansas Parole Board does not present a constitutional
claim. Likewise, the court has found no support for plaintiff’s
assertions of retaliatory conduct or other misconduct related to
the denial of parole.
In sum, the court’s review of the complaint and exhibits does
not reveal sufficient allegations to state a claim for relief. The
court will allow plaintiff an opportunity to respond; however,
such response shall be limited to five pages, and plaintiff shall
not submit any additional exhibits.
IT IS, THEREFORE, BY THE COURT ORDERED that on or before
January 22, 2012, plaintiff shall submit an initial partial filing
fee of $2.50.

Any objection to this order must be filed on or

before the date payment is due.

The failure to file a timely

response may result in the dismissal of this action without
prejudice and without additional prior notice to the plaintiff.
IT IS FURTHER ORDERED plaintiff is granted to and including
January 22, 2012, to show cause why this matter should not be
dismissed for the reasons set forth herein.
IT IS FURTHER ORDERED plaintiff’s motion to appoint counsel
(Doc. 3) is denied.
IT IS SO ORDERED.
DATED:

This 22nd day of December, 2011, at Topeka, Kansas.

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

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