Barnard v. Bourbon County District Court et al
ORDER ENTERED: Plaintiff's motion 2 for leave to proceed in forma pauperis is granted. Plaintiff is granted twenty (20) days to show cause why the complaint should not be summarily dismissed pursuant to 28 U.S.C. 1915(e)(2)(B)(ii). Signed by Senior District Judge Sam A. Crow on 7/20/2011. (Mailed to pro se party Michael A. Barnard by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MICHAEL A. BARNARD,
CASE NO. 11-3111-SAC
BOURBON COUNTY DISTRICT COURT, et al.,
O R D E R
This matter comes before the court on a form complaint for
seeking relief under 42 U.S.C. § 1983.
Plaintiff, a prisoner
confined in the Bourbon County Jail in Ft. Scott, Kansas, proceeds
pro se and seeks leave to proceed in forma pauperis un der 28 U.S.C.
Filing Fee - 28 U.S.C. § 1915
Plaintiff must pay the full $350.00 filing fee in this civil
action. See 28 U.S.C. § 1915(b)(1)(prisoner bringing a civil action
or appeal in forma pauperis is required to pay the full filing fee).
If granted leave to proceed in forma pauperis, plaintiff is entitled
to pay this filing fee over time, as provided by payment of an
initial partial filing fee to be assessed by the court under 28
U.S.C. § 1915(b)(1) and by periodic payments from plaintiff's inmate
Pursuant to 28 U.S.C. § 1915(b)(1), the court is required to assess
an initial partial filing fee of 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 considered the limited financial records provided by
plaintiff, the court finds no initial partial filing fee may be
imposed at this time due to plaintiff's limited resources, and
grants plaintiff leave to proceed in forma pauperis.
See 28 U.S.C.
§ 1915(b)(4)(where inmate has no means to pay initial partial filing
fee, prisoner is not to be prohibited from bringing a civil action).
Plaintiff remains obligated to pay the full $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).
Screening of the Complaint - 28 U.S.C. § 1915A
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
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).
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).
“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.”
Atkins, 487 U.S. 42, 48 (1988).
Having reviewed plaintiff’s
allegations, the court finds the complaint is subject to being
summarily dismissed for the following reasons.
To the extent plaintiff challenges the legality of his present
confinement pursuant to a state court judgment, and seeks his
release or sentence modification, relief in the federal courts must
be pursued in habeas corpus after first exhausting state court
particulars affecting its duration are the province of habeas
corpus[.]”)(citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)).
Accordingly, any such claim being asserted in this matter should be
dismissed without prejudice.
To the extent plaintiff seeks damages for his alleged illegal
confinement, this claim is barred until plaintiff demonstrates the
basis for his present confinement has been legally invalidated.
“[T]o recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness
would render a conviction or sentence invalid, a § 1983 plaintiff
must prove that the conviction or sentence has been reversed on
direct appeal, expunged by executive order, declared invalid by a
state tribunal authorized to make such determination, or called into
corpus····” Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Because
plaintiff makes no such showing, this claim for damages is subject
to being summarily dismissed without prejudice.
To the extent plaintiff alleges mail from his attorney was
opened outside his presence on April 13, 2001, this isolated
instance of his legal mail being mishandled is insufficient to
plausibly establish any violation of plaintiff's constitutional
Cir.1990)(isolated incident of opening inmate legal mail “without
evidence of improper motive or resulting interference with the
inmate's right to counsel or to access the courts, does not give
rise to a constitutional violation”).
To the extent it appears that plaintiff is claiming the state
district court failed to honor his request for written notice of his
in forma pauperis motion, no discernable claim of constitutional
deprivation is presented.
Also, the court finds no basis for plaintiff to proceed against
any of the three defendants named in the complaint.
State of Kansas should be dismissed because plaintiff’s claim for
prospective injunctive relief regarding his state sentence must be
pursued in habeas corpus, and the Eleventh Amendment bars a claim
actions in federal court for damages against a State and its
Second, any claim against the state district court is
treated as a claim against the State, and is likewise barred.
third, the Bourbon County Jail should be summarily dismissed because
this facility is not a “person” subject to suit under § 1983, and is
not a suable entity.
See e.g. Marsden v. Federal Bureau of Prisons,
856 F. Supp. 832, 836 (S.D.N.Y.1994)("a jail is not an entity that
is amenable to suit").
Notice and Show Cause Order to Plaintiff
Accordingly, plaintiff is directed to show cause why the
complaint should not be summarily dismissed as stating no claim for
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 by the court, without further prior notice to
IT IS THEREFORE ORDERED that plaintiff’s motion for leave to
proceed in forma pauperis (Doc.2) is granted, with payment 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 is granted twenty (20)
days to show cause why the complaint should not be summarily
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
IT IS SO ORDERED.
This 20th day of July 2011 at Topeka, Kansas.
s/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
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