McCormick v. Roberts et al

Filing 6

ORDER ENTERED: Plaintiff's motion 2 to proceed without prepayment of fees is granted. Plaintiff is given thirty (30) days in which to submit to the court an initial partial filing fee of $17.50. Any objection to this order must be filed on or before the date payment is due. Plaintiff is assessed the full filing fee of $350.00, and after he has paid the initial fee, the remainder is to be paid by payments automatically deducted from his inmate trust fund account. Plaintiff� 39;s motion 3 to forego form is granted. Plaintiff's motion 5 for preliminary injunction is denied without prejudice. This action is dismissed as against Governor Sam Brownback and defendant State of Kansas for lack of personal participati on. The clerk of the court shall prepare waiver of service forms pursuant to Rule 4(d) of the Federal Rules of Procedure. The clerk of the court shall enter the Kansas Department of Corrections as an interested party on the docket for the limited p urpose of preparing the Martinez report. The screening process under 28 U.S.C. 1915A having been completed, this matter is returned to the clerk of the court for random reassignment. Signed by Senior District Judge Sam A. Crow on 8/25/2011. (Mailed to pro se party Dale McCormick by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DALE McCORMICK,
Plaintiff,
v.

CASE NO.

11-3130-SAC

SAM BROWNBACK,
et al.,
Defendants.
O R D E R
This civil complaint was filed pro se by an inmate of the
Lansing Correctional Facility, Lansing, Kansas (LCF).

Plaintiff

has also filed a motion to proceed without prepayment of fees (Doc.
2) and has attached an Inmate Account Statement in support as
statutorily mandated.

Plaintiff’s motion for the court to accept

his complaint even though it is not upon court-approved forms (Doc.
3) shows good cause1 and accordingly is granted.

ASSESSMENT OF PARTIAL FEE
Plaintiff’s motion to proceed without prepayment of the
fee is documented and shall be granted.

Under 28 U.S.C. §

1915(b)(1), a plaintiff granted such leave is not relieved of the
obligation to pay the filing fee of $350.00 for a civil action.
Instead, it merely entitles him to proceed without prepayment of

1

The court finds that the complaint filed by Mr. McCormick contains
essentially the same information as that required by the court-approved forms.

the full fee, and to pay the fee over time through payments
deducted automatically from his inmate trust fund account as
authorized by 28 U.S.C. § 1915(b)(2).

Furthermore, § 1915(b)(1),

requires the court 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 examined the records of plaintiff’s account, the court finds
the average monthly deposit to plaintiff’s account is $ 88.57, and
the average monthly balance is $ 28.21.

The court therefore

assesses an initial partial filing fee of $ 17.50, twenty percent
of the average monthly deposit, rounded to the lower half dollar.
Plaintiff is required to submit this initial partial filing fee to
the court within the time provided in this Order.

His failure to

submit the initial fee in the time allotted may result in dismissal
of this action without further notice.

MOTION FOR PRELIMINARY INJUNCTION
In his complaint, plaintiff includes a prayer for immediate
injunctive relief.
injunction.

He has also filed a motion for a preliminary

Plaintiff seeks an injunction requiring defendants

Brownback, Roberts, and McKune to take the following actions in any
location in LCF where plaintiff is or may be: immediately cease any
activity

which

could

possibly

disturb

lead

paint

or

friable

asbestos; and, within 90 days or less, locate and remove all lead
paint and potentially friable asbestos.
2

In addition, he seeks an

injunction requiring defendants McKune and Roberts to arrange for
plaintiff to be tested by an independent laboratory for both lead
and

asbestos

exposure,

and

to

provide

all

necessary

medical

treatment.
A preliminary injunction is an “extraordinary equitable
remedy designed to ‘preserve the relative positions of the parties
until a trial on the merits can be held’.”

Westar Energy, Inc. v.

Lake, 552 F.3d 1215, 1225 (10th Cir. 2009)(quoting Univ. of Tex. v.
Camenisch, 451 U.S. 390, 395 (1981)).

To obtain a preliminary

injunction under Fed.R.Civ.P. 65, the movant must show (1) a
substantial likelihood of success on the merits; (2) irreparable
injury to the movant if the preliminary injunction is denied; (3)
the threatened harm to movant outweighs the injury that the
proposed injunction may inflict upon the opposing party; and (4)
the injunction, if issued, would not be adverse to the public
interest.

Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001);

Chemical Weapons Working Group, Inc. v. United States Dep’t of the
Army, 111 F.3d 1485, 1489 (10th Cir. 1997); Lundgrin v. Claytor,
619 F.2d 61, 63 (10th Cir. 1980).

Mr. McCormick’s injunction is a

“specifically disfavored” preliminary injunction because it seeks
mandatory relief,2 rather than preservation of the status quo.

See

Schrier v. Univ. of Colo., 427 F.3d 1253, 1259 (10th Cir. 2005); O
Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d
2

An injunction is mandatory, rather than prohibitory, “if the
requested relief ‘affirmatively require[s] the nonmovant to act in a particular
way, and as a result . . . place[s] the issuing court in a position where it may
have to provide ongoing supervision to assure the nonmovant is abiding by the
injunction’.” Schrier, 427 F.3d at 1261 (quotation omitted).

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973, 975 (10th Cir. 2004)(en banc).

Accordingly, his request must

be “more closely scrutinized to assure that the exigencies of the
case support the granting of a remedy that is extraordinary even in
the normal course.”

Id.

Having carefully reviewed plaintiff’s motion and materials
submitted in support, the court finds that he has not established
a substantial likelihood that he will succeed on the merits.

He

alleges

as

facts

and

submits

documents

that

he

interprets

establishing the existence of harmful lead in paint and asbestos on
pipes in “the max” at the LCF.

However, the court does not read

plaintiff’s exhibits as plainly establishing that there are toxic
levels

of

these

substances

at

LCF.

Moreover,

plaintiff’s

allegations and exhibits contain contrary evidence that prison
officials have formally responded to his inquiries by insisting and
documenting that all lead paint was removed during past renovations
and that no harmful levels of lead or asbestos remain at the LCF.
Rather than establishing a likelihood of success on the merits,
plaintiff’s motion, at most, indicates issues of fact to be
resolved.
Mr. McCormick has also failed to establish that he will
suffer irreparable harm if a preliminary injunction does not issue.
While plaintiff alleges that he has suffered symptoms, which he
claims can result from lead and asbestos poisoning, his lay opinion
as to the cause of his alleged medical symptoms is uncorroborated.
Nor

does

plaintiff

allege

that

any

medical

professional

has

determined that he needs to be tested for levels of lead or
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asbestos in his system.
Plaintiff has also failed to meet his burden to establish
either factor (3) or (4).

Mr. McCormick can conceive of no harm

that might befall either defendants or the public interest if the
requested injunction is issued in this case. However, the granting
of plaintiff’s requests, given that he alleges a disturbance may be
caused by routine maintenance, would conceivably entail evacuation
of all cell houses, as well as eating and activity areas in the LCF
max or the entire prison, and not simply the temporary halt of
construction projects or removal of paint without precautionary
measures.

Obviously,

the

impact

of

a

prison

evacuation

defendants and the public interest could be weighty indeed.

on
Mr.

McCormick has not at this juncture made a clear showing of serious
danger to his health or safety, which would outweigh the interests
of defendants or the public in maintaining the status quo at the
LCF.

Furthermore,

established

plaintiff

principle

that

gives

prison

no

weight

management

to

the

well-

functions

are

generally left to the broad discretion of prison administrators to
enable them to manage prisons safely and effectively.

Meachum v.

Fano, 427 U.S. 215 (1976).

The court concludes that Mr. McCormick

has

to

not

met

his

burden

establish

the

four

factors

and

exceptional circumstances that would entitle him to extraordinary
preliminary relief in this case.

DISMISSAL OF DEFENDANTS GOVERNOR AND STATE OF KANSAS

5

An essential element of a civil rights complaint is the
personal

participation

unconstitutional

acts

of
or

each

defendant

inaction.

No

in

acts

the

alleged

whatsoever

are

described in the complaint as taken by either Governor Brownback or
the State of Kansas.

Nor does plaintiff describe any tortious

conduct on the part of either of these defendants.

They may not be

held liable under the theory of respondeat superior as plaintiff
suggests.

Accordingly, the court dismisses the action as against

these defendants.

MARTINEZ REPORT
Plaintiff pleads that he has fully exhausted the available
administrative remedies. The court finds that proper processing of
plaintiff’s

claims

cannot

be

achieved

without

additional

information from appropriate officials of the Lansing Correctional
Facility. See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978); see
also Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991).
IT IS THEREFORE BY THE COURT ORDERED that plaintiff’s
Motion to Proceed Without Prepayment of Fees (Doc. 2) is granted
and that plaintiff is given thirty (30) days in which to submit to
the court an initial partial filing fee of $ 17.50.

Any objection

to this order must be filed on or before the date payment is due.
IT IS FURTHER ORDERED that plaintiff is hereby assessed the
full filing fee of $350.00; and after he has paid the initial fee,
the remainder is to be paid by payments automatically deducted from

6

his

inmate

trust

fund

account

as

authorized

by

28

U.S.C.

§

1915(b)(2).
IT IS FURTHER ORDERED that plaintiff’s Motion to Forego
Form (Doc. 3) is granted, and plaintiff’s Motion for Preliminary
Injunction (Doc. 5) is denied, without prejudice.
IT IS FURTHER ORDERED that this action is dismissed as
against defendant Governor Sam Brownback and defendant State of
Kansas for lack of personal participation.
IT IS FURTHER ORDERED:
(1) The clerk of the court shall prepare waiver of service
forms pursuant to Rule 4(d) of the Federal Rules of Procedure, to
be served by a United States Marshal or a Deputy Marshal at no cost
to plaintiff absent a finding by the court that plaintiff is able
to pay such costs.

The report required herein, shall be filed no

later than sixty (60) days from the date of this order, and the
answer shall be filed within twenty (20) days following the receipt
of that report by counsel for defendant.
(2) Officials responsible for the operation of the Lansing
Correctional Facility are directed to undertake a review of the
subject matter of the complaint:
(a) to ascertain the facts and circumstances;
(b) to consider whether any action can and should be taken
by the institution to resolve the subject matter of the complaint;
(C) to determine whether other like complaints, whether
pending in this court or elsewhere, are related to this complaint

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and should be considered together.
(3) Upon completion of the review, a written report shall
be

compiled

which

shall

be

attached

to

and

filed

with

the

defendant’s answer or response to the complaint. Statements of all
witnesses shall be in affidavit form.

Copies of pertinent rules,

regulations, official documents and, wherever appropriate, the
reports of medical or psychiatric examinations shall be included in
the

written

report.

Any

tapes

of

the

incident

underlying

plaintiff’s claims shall also be included.
(4) Authorization is granted to the officials of the Kansas
Department

of

Corrections

to

interview

all

witnesses

having

knowledge of the facts, including the plaintiff.
(5) No answer or motion addressed to the complaint shall be
filed until the Martinez report requested herein has been prepared.
(6)

Discovery

by

plaintiff

shall

not

commence

until

plaintiff has received and reviewed defendant’s answer or response
to the complaint and the report required herein.

This action is

exempted from the requirements imposed under F.R.C.P. 26(a) and
26(f).
IT IS FURTHER ORDERED that the clerk of the court shall
enter the Kansas Department of Corrections as an interested party
on the docket for the limited purpose of preparing the Martinez
report ordered herein.

Upon the filing of that report, the KDOC

may move for termination from this action.
IT IS FURTHER ORDERED that the screening process under 28

8

U.S.C. § 1915A having been completed, this matter is returned to
the clerk of the court for random reassignment pursuant D. Kan.
Rule 40.1.
Copies of this Order shall be transmitted to plaintiff, to
defendants, to the Secretary of Corrections, to the Attorney
General of the State of Kansas, and to the Finance Office of the
facility where plaintiff is currently incarcerated.
IT IS SO ORDERED.
Dated this 25th day of August, 2011, at Topeka, Kansas.

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

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