Harvey v. Rohling et al
MEMORANDUM AND ORDER ENTERED: Plaintiff is granted thirty (30) days in which to submit a properly completed application to proceed without prepayment of fees upon court-provided forms. Within the same thirty-day period, plaintiff must submit to the court an initial partial filing fee of $8.50. Plaintiff is also required to file a response to this memorandum and order in which he shows (10) that he has properly exhausted all available prison administrative remedies on each of his claims, and (2) cause as to why this action should not be dismissed for the reasons stated in this memorandum and order. Signed by Senior District Judge Sam A. Crow on 9/12/2011. (Mailed to pro se party Levi Lloyd Harvey by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LEVI LLOYD HARVEY,
Karen Rohling, Warden,
MEMORANDUM AND ORDER
This civil rights complaint, 42 U.S.C. § 1983, was filed
pro se by an inmate of the Hutchinson Correctional Facility,
The fee for filing this civil action is $350.00. Plaintiff
has not paid the fee.
Nor has he filed a complete Application to
Proceed Without Prepayment of Fees, that includes his affidavit, on
Mr. Harvey has previously been forewarned
that under 28 U.S.C. § 1915(b)(1), being granted leave to proceed
without prepayment of fees does not relieve him of the obligation
to pay the full amount of the filing fee.
Instead, it entitles him
to pay the fee over time through payments automatically deducted
Plaintiff will be required to submit a complete Application to
Proceed Without Prepayment of Fees with affidavit in this case, and forms will
be provided. He must write the case number of this case on the first page of all
pleadings or motions he submits for filing in this case. He may not write more
than one case number on any pleading submitted by him or submit a single pleading
for filing in more than one case.
from his inmate trust fund account as authorized by 28 U.S.C. §
He is obligated to pay the $350.00 fee for each civil
case that he files in this court.
Plaintiff has submitted an Inmate Account Statement as
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
Having examined the records of plaintiff’s account, the
court finds the average monthly deposit to plaintiff’s account over
that period was $44.57, and the average monthly balance was $14.43.
The court therefore assesses an initial partial filing fee in this
case of $8.50, twenty percent of the average monthly deposit,
rounded to the lower half dollar.
Plaintiff must pay this initial
partial filing fee before this action may proceed further, and will
be given time to submit the fee to the court.
His failure to
submit a complete motion and the initial fee in the time allotted
may result in dismissal of this action without further notice.
Because Mr. Harvey is a prisoner, the court is required by
statute to screen his complaint and to dismiss the complaint or any
Pursuant to §1915(b)(2), the Finance Office of the facility where
plaintiff is currently confined will be authorized to collect, in connection with
each action he files, twenty percent (20%) of the prior month’s income each time
the amount in plaintiff’s account exceeds ten dollars ($10.00) until the filing
fee has been paid in full.
portion thereof that is frivolous, fails to state a claim on which
relief may be granted, or seeks relief from a defendant immune from
28 U.S.C. § 1915A(a) and (b).
Having screened all
materials filed, the court finds the complaint is subject to being
dismissed for the following reasons.
FAILURE TO ADEQUATELY STATE CLAIMS AND SUPPORTING FACTS
In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and
Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937 (2009), the United
States Supreme Court held that a complaint must contain sufficient
factual matter, accepted as true, to “state a claim to relief that
is plausible on its face.” Iqbal, 129 S.Ct. at 1949 (quoting Bell,
550 U.S. at 570).
“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
misconduct alleged.” Id.
A court liberally construes a pro se
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
Nevertheless, 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). The court “will not supply additional
construct a legal theory on a plaintiff’s behalf.”
Whitney v. New
Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). The court accepts
all well-pleaded allegations in the complaint as true.
Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006). “[W]hen the
allegations in a complaint, however true, could not raise a claim
of entitlement to relief,” dismissal is appropriate.
U.S. at 558.
The Tenth Circuit Court of Appeals has explained
“that, to state a claim in federal court, a complaint must explain
what each defendant did to [the pro se plaintiff]; when the
defendant did it; how the defendant’s action harmed him or her;
and, what specific legal right the plaintiff believes the defendant
Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe
County Justice Center, 492 F.3d 1158, 1163 (10th Cir. 2007).
Plaintiff has not properly utilized the court-provided
complaint forms to set forth his claims.
Instead, he inserts many
papers inside his complaint including a “narrative” and numerous
administrative grievances. He makes very general references to his
narrative and all “attached documents and more” in the spaces for
factual background and supporting facts, but does not discuss each
attachment and how it relates to his claims.
Three counts are specified in the complaint.
does not indicate which factual allegations of the many in his
attachments are offered to support each count.
contain many allegations that do not appear relevant to any of his
For example, plaintiff’s narrative contains many statements of
general irritations such as verbal threats, warnings, and orders by correctional
officers, which clearly do not rise to the level of federal constitutional
violations. He also attaches a letter in which he urges an agency to conduct an
inspection with regard to skin infections.
constitutional claims Mr. Harvey asserts and what facts he believes
support each of those claims.
The court has considered the complaint, plaintiff’s long
chronological “narrative” of events and incidents, and his other
attachments. Plaintiff’s allegations, counts and claims for relief
can be generally grouped into three categories.
The court very
liberally construes his complaint to assert claims based upon these
Exposure to Asbestos
In March 2010, plaintiff alleges that he was assigned to
the department that was installing air conditioning equipment
during renovations at the LCMHF when he and other inmates were
exposed to asbestos insulation.
On June 15, 2010, plaintiff wrote
OSHA due to his concerns about the asbestos.
On June 29, 2010,
areas that still contained asbestos were closed off, asbestos
contamination signs were posted, and renovation efforts ceased. On
August 2, 2010, a company from Wichita arrived and began removing
Plaintiff alleges no facts regarding his personal exposure
Nor does he seek any form of relief as a result of
the allegations in his narrative concerning asbestos.
As far as
background for his claims of mail mishandling and reprisals.
claims cruel and unusual punishment in one count and in his request
for relief, but only for time spent in segregation.
the court finds that these facts in his narrative state no claim
On June 18, 2010, Paul Runnell CCII handed plaintiff an
envelope with “a torn tamper proff (sic) adhesive flap” that was
from OSHA and clearly marked Official Mail and Confidential.
June 22, 2010, plaintiff asked Runnells about the letter, and
Runnells responded that it had come that way and that he would have
to talk to the “mail lady.”
Runnells has not allowed plaintiff to
be present during the copying of his legal and official mail prior
to sending, which plaintiff claims is a violation of policy and his
On June 23, 2010, plaintiff spoke with Ms. Vonfeldt, the
mail lady, about the OSHA letter.
She stated that the log did not
show that the letter had been opened, that she would not open a
letter marked official and confidential, and that she always uses
a letter opener. Plaintiff showed her the envelope, and she stated
that it was not opened that way in the mailroom.
stated to plaintiff that mail often gets damaged during mailing.
Ms. Vonfeldt was a temporary employee and has resigned.
Plaintiff’s exhibits also indicate that he complained
because responses to his grievance appeals from the Secretary of
Corrections office were not in a sealed envelope when he received
them. He was informed in response to his grievances that they were
not sent to the prison in a sealed envelope, and that all mail from
that office came in one envelope and was distributed to the
Disciplinary Actions and “Reprisals”
Plaintiff complains of disciplinary actions taken against
him based on the following allegations.
On May 7, 2010, he was
served a disciplinary report (DR) for keeping “the tops of bubble
packs” which he kept for use in maintaining a medical record.
alleges that defendants’ motivation was to show that “they” did not
submitted a grievance with regard to his medical restrictions being
ignored, and was “made subject to reprisal” to discourage him from
On May 28, 2010, plaintiff was sitting in an
area near the dayroom when defendant Caro aggressively stated that
the dayroom was not open yet.
Caro then “loudly insinuated” to
other inmates in the area that Harvey had pointed out their
presence, making them upset at plaintiff, and announced to all that
the dayroom was not open.
On June 30, 2010, plaintiff was called
to Mr. Runnell’s office and threatened with disciplinary actions
for “helping” a disabled inmate.
On July 29, 2010, Mr. Bolling
overheard plaintiff speaking about KDOC employees and nepotism, and
“insinuated that he would be subject to “reprisal/adverse actions”
if he pursued this issue.
Plaintiff reported this threat to CCI
Rick Perez, who went to speak with Bolling and mentioned nothing
further to plaintiff.
On September 1, 2010, UTM Randy Green
overheard plaintiff telling another inmate what he needed to do
with respect to his hernia injury.
“inciting a riot.”
Mr. Green accused plaintiff of
On September 2, 2010, plaintiff appeared for
two disciplinary hearings.
The disciplinary administrator, Paht
Willesdan, only allowed the testimony of the correctional officers
that had written the DRs and denied plaintiff’s requests for
During the first hearing, Willesdan threatened to call
a condition 30 (an out of control situation) to coerce plaintiff
not to defend himself.
During another hearing, Mr. Willesdan
called a condition 30 when there was no need.
Mr. Willesdan had
plaintiff placed in disciplinary segregation and wrote a DR against
A hearing was held on this DR on September 16, 2010, and CSII
unprofessional demeanor at the hearing.
Plaintiff was not sent to
disciplinary segregation, and there was no written disposition. On
September 28, 2010, UTM Randy Green ordered plaintiff to quit
“helping” another inmate.
On October 22, 2010, plaintiff was
insubordination/disrespect, if he were to get another he would be
On November 18, 2010, he was transferred to HCF.
Plaintiff claims that every disciplinary hearing he had violated
representation and his requests for witnesses and for crossexamination were denied. However, his good time has been forfeited
Plaintiff claims that withholding an inmate’s “good
time awards” is a double jeopardy violation, and that they may only
be withheld by the disciplinary administrator or hearing officer
after a hearing, not by other correctional counselors.
complains that the formula for allocating good time awards varies
CLAIMS AND REQUESTED RELIEF
As count I for this complaint, Mr. Harvey claims denial of
due process and confidentiality rights.
As supporting facts, he
refers to “attached documents,” and states that they include
records of each DR hearing, and all confidential envelopes that
As count II, plaintiff claims wrongful imprisonment
and cruel and unusual punishment based upon his placement in
“hendering (sic) the complaint process, obstructing justice.”
In plaintiff’s Request for Relief, he seeks “compensation
for time wrongfully held in Disciplinary Segregation and out of
(his) custody classification,” and for cruel and unusual punishment
and violation of his confidentiality.
PERSONAL PARTICIPATION OF NAMED DEFENDANTS
An essential element of a civil rights claim against an
individual is that person’s direct personal participation in the
acts or inactions upon which the complaint is based.
Williams, 465 F.3d 1210, 1227 (10th Cir. 2006)(A defendant’s direct
constitutional right must be established); Mitchell v. Maynard, 80
F.3d 1433, 1441 (10th Cir. 1996); Olson v. Stotts, 9 F.3d 1475, 1477
Contrary to plaintiff’s statements no records
proceedings and no envelopes are attached to his complaint.
As the U.S. Supreme Court recently reiterated in
Iqbal, 129 S.Ct. at 1948:
Government officials may not be held liable for
the unconstitutional conduct of their subordinates
under a theory of respondeat superior. (citations
inapplicable to Bivens and § 1983 suits, a
plaintiff must plead that each Government-official
defendant, through the official’s own individual
actions, has violated the Constitution.
In the caption of his complaint, plaintiff names three
defendants: Karen Rohling, Warden, Larned Correctional Mental
Health Facility, Larned, Kansas (LCMHF); Ray Reno, Deputy Warden,
LCMHF; and Vincent Caro, “CSI”.
He lists 13 additional defendants
including several other employees at the LCMHF and three officials
of the Secretary of Corrections’ office. Even liberally construed,
Mr. Harvey’s allegations fail to meet the standards for bringing a
civil rights complaint in federal court.
First, Mr. Harvey fails
to adequately “plead that each Government-official defendant,
through [his or her] own individual actions, has violated the
Constitution,” which is a requirement under Iqbal.
Sirmon, 350 Fed.Appx. 294, 299 (10th Cir. 2009)(unpublished)(citing
see id. at 1948). Facts showing the personal participation of each
necessary element of a civil rights claim under 42 U.S.C. § 1983.
Plaintiff describes no acts whatsoever by defendants Rohling, Reno,
Meadows, Brown, Shaver, Bolling, Werholtz, Haden, Simmons, or
Nor does he describe acts by defendants Willesdan,
Green, Vonfeldt or Johnson that were unconstitutional. Plaintiff’s
claims against all defendants are thus subject to dismissal for
EXHAUSTION OF ADMINISTRATIVE REMEDIES
42 U.S.C. § 1997e(a) provides:
No action shall be brought with respect to prison
conditions under section 1983 of this title, or
any other Federal law, by a prisoner confined in
any jail, prison, or other correctional facility
available are exhausted.
The exhaustion requirement applies to all inmate suits about prison
life, whether they involve general circumstances or particular
episodes, and whether they allege denial of medical treatment or
some other wrong.
Porter v. Nussle, 534 U.S. 516, 532 (2002).
Exhaustion in cases covered by § 1997e(a) is not within the court’s
discretion, but is mandatory.
“[E]xhaustion requirements are
designed to . . . give the agency a fair and full opportunity to
adjudicate their claims.” Woodford v. Ngo, 548 U.S. 81, 90 (2006).
Full and proper exhaustion of administrative remedies is required,
and entails utilizing “all steps that the agency makes available,
and doing so properly (so that the agency addresses the issues on
the merits).” Id. at 90.
The grievance procedure for Kansas state prisoners is
established in administrative regulations. See KS ADC §§ 44-15-101
Section 44-15-101(b) provides that before utilizing the
grievance procedure, the inmate must attempt “to reach an informal
resolution of the matter with the personnel who work with the
inmate on a direct or daily basis” by contacting unit team members.
requires a prisoner to “first submit the grievance report form to
an appropriate unit team member.”
KS ADC 44-15-101(d)(1).
prisoner is not satisfied after step one, he “shall then submit the
grievance report form to the warden of the facility.”
KS ADC 44-
15-101(d)(2). Finally, if “not resolved, the grievance may be next
submitted to the office of the secretary of corrections.
44-15-101(d)(3). The procedure to follow at each step is fully set
out in KS ADC 44-15-102.
“To exhaust administrative remedies an
inmate must properly comply with grievance procedures; substantial
compliance is insufficient.” Fields v. Oklahoma State Penitentiary,
511 F.3d 1109, 1112 (10th Cir. 2007).
Unexhausted claims must be
Jones v. Bock, 549 U.S. 199, 223-24 (2007).
Jones, 549 U.S. at 203.
This means that a
prison inmate is not required “to allege and demonstrate exhaustion
in his complaint.”
Consequently, the question of exhaustion
generally does not arise until it is raised by a defendant.
However, the Tenth Circuit has held that
if a complaint makes it clear through the
prisoner’s affirmative statements he has not
district court may raise the exhaustion question
information from the prisoner.
2007)(unpublished)(citing see Aquilar-Avellaveda v. Terrell, 478
F.3d 1223, 1225 (10th Cir. 2007); see also Fogle v. Pierson, 435
F.3d 1252, 1258 (10th Cir. 2006).
In response to the question on his form complaint as to how
he sought administrative relief, Mr. Harvey writes “Grievance Grievance
State/Federal agencies” including Department of Justice and FBI.
Writing letters to federal agencies or officials and even to
exhaustion. The court finds that it is appears from allegations in
the complaint that Mr. Harvey did not fully and properly exhaust
the available prison administrative remedies on each of his claims
before filing this lawsuit.
Plaintiff shall be given time to allege facts or provide
exhibits showing that he followed each of the steps set forth in
the Kansas regulations in a timely and proper manner. He must show
that he properly followed the three-step exhaustion process on each
of his claims including that he was exposed to asbestos, that his
mail was mishandled, that disciplinary proceedings against him
violated due process, and that his placement in disciplinary
constitutional issues he intends to pursue in this complaint.
Plaintiff’s § 1983 complaint is subject to being dismissed without
prejudice pursuant to 28 U.S.C. §§ 1915A, 1915(e)(2)(B)(ii), and 42
administrative remedies prior to filing this action.
if plaintiff fails to demonstrate full and proper exhaustion within
the time allotted, this action may be dismissed without further
FAILURE TO STATE A CLAIM
Mr. Harvey’s complaint is also subject to being dismissed
for failure to state a federal constitutional claim.
“To state a
claim under (42 U.S.C. §) 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the
United States . . . committed by a person acting under color of
West v. Atkins, 487 U.S. 42, 48-49 (1988)(citations
omitted); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978));
Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992).
Claims of improper opening of legal and official mail might
be asserted as constitutional claims under the First Amendment.
The only actual opening of official or legal mail for which
plaintiff provides sufficient crucial facts, such as the date and
content of the mail, is that of his letter from OSHA.
incident of a torn or even an opened envelope does not, without
more, state a federal constitutional violation.
With respect to his other allegations in his first count,
plaintiff provides no authority for his assertion that he has a
confidentiality or other First Amendment right to have grievance
appeal responses returned in a sealed envelope rather than by the
Nor does he allege what injury has resulted.
Plaintiff’s allegations regarding all the disciplinary
proceedings against him in which forfeiture of good time was not a
sanction, which as noted is all but one, do not evince a denial of
This is because there is no federal constitutional
right to due process in disciplinary proceedings where segregation
and/or restrictions were the only sanctions.
With regard to the
one proceeding in which he was sanctioned with loss of good time,
plaintiff does not allege sufficient facts to show a federal due
He does not allege the date or nature of the
charged offense, the date of the hearing, or what happened during
these particular proceedings that violated due process.
he name which defendant was involved and describe his or her
Plaintiff states no valid factual or legal basis for his
general challenge to the withholding of good time awards at the end
of a 120-day review period by correctional counselors.
v. McKune, 30 Kan.App.2d 822, 824-25, 48 P.3d 1287 (Kan.App.
2002)(Withholding of good time credits by unit team manager rather
than by disciplinary board and hearing officer not violation of due
process; and the distribution of inmate’s good time credits was
pursuant to regulation which provided that the award of good time
credits was the act of the unit team.)(citing KS ADC 44-6-101(d),
44-13-406.). He does not even allege facts showing that he has had
good time awards withheld in this manner. Nor does he allege which
defendant acted to withhold his good time awards or provide the
date or reasons given.
His argument that it is a violation of
double jeopardy fails for several reasons.
It is well-established
that the Double Jeopardy clause only applies to proceedings that
are “essentially criminal” in nature. See Breed v. Jones, 421 U.S.
disciplinary sanctions” -such as administrative segregation- “do
not implicate” double jeopardy protections.
Fogle v. Pierson, 435
F.3d 1252, 1262 (10th Cir. 2006)(citing Wirsching v. Colorado, 360
F.3d 1191, 1205 (10th Cir.2004)).
Furthermore, Mr. Harvey has no
constitutionally-protected liberty interest in earning good time
credits because the awards are discretionary under Kansas law. See
Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994); see Davis,
30 Kan.App.2d at 823 (“Because good time credits can be withheld
when the inmate has not yet earned the credits by being violation
free for the review period, the inmate has no protected liberty
interest in those unearned credits.”).
Finally, even if plaintiff
had credit withheld, he alleges no facts showing that as a result
he will be confined beyond his original sentence.
See Carroll v.
Simmons, 89 Fed.Appx. 658, 663 (10th Cir. 2004)(citations omitted).
In short, plaintiff has not been punished a second time and
withholding good time credits does not constitute an additional
punishment for the same offense.
In any event, any claim that
Mr. Harvey is entitled to additional credit against his sentence is
not properly raised in this civil rights complaint.
Such a claim
is, in essence, a request for speedier release, which may only be
McDonnell, 418 U.S. 539, 554-55 (1974)(citing Preiser v. Rodriguez,
411 U.S. 475, 499, n.14, 500 (1973)).
This action will not be
construed as a habeas petition because it contains non-habeas
claims, and there is no indication that Mr. Harvey has exhausted
prerequisite to seeking habeas review in federal court.
Furthermore, plaintiff may not combine claims in a single
complaint that are based upon different actions taken at different
substantial connection between disciplinary actions taken against
him and his allegations regarding asbestos and mail mishandling.
FRCP Rule 20(a)(2) governs permissive joinder of defendants and
Persons . . . may be
defendants if: (A) any right to relief
jointly, severally, or in the alternative
out of the same transaction, occurrence,
or occurrences; and (B) any question of
defendants will arise in the action.
joined in one action as
is asserted against them
with respect to or arising
or series of transactions
law or fact common to all
Id. FRCP Rule 18(a) governs joinder of claims and pertinently provides: “A party
asserting a claim . . . may join, as independent or alternative claims, as many
claims as it has against an opposing party.” While joinder is encouraged for
purposes of judicial economy, the “Federal Rules do not contemplate joinder of
different actions against different parties which present entirely different
factual and legal issues.” Zhu v. Countrywide Realty Co., Inc., 160 F.Supp.2d
1210, 1225 (D.Kan. 2001)(citation omitted).
The Court of Appeals for the Seventh Circuit has explained that under “the
controlling principle” in FRCP Rule 18(a), “[u]nrelated claims against different
defendants belong in different suits.” George v. Smith, 507 F.3d 605, 607 (7th
Cir. 2007). Requiring adherence in prisoner suits to the federal rules regarding
joinder of parties and claims prevents “the sort of morass [a multiple claim,
It also prevents prisoners from
multiple defendant] suit produce[s].”
“dodging” the fee obligations and the three strikes provisions of the Prison
Litigation Reform Act. Id. (FRCP Rule 18(a) ensures “that prisoners pay the
required filing fees--for the Prison Litigation Reform Act limits to 3 the number
of frivolous suits or appeals that any prisoner may file without prepayment of
the required fees.”). Under Rule 18(a), “multiple claims against a single party
are fine, but Claim A against Defendant 1 should not be joined with unrelated
Claim B against Defendant 2.” Id.
Accordingly, the court finds that these claims are improperly
joined in this action.
classification and segregated confinement fail to state a claim
because they are conclusory and for the reason that he has no
constitutional right to a particular security classification or to
remain in the general population.
Plaintiff’s other claims, if
any, are likewise either not supported by sufficient factual
allegations and are thus conclusory, or they simply fail to state
a federal constitutional claim.
plaintiff has failed to allege sufficient facts to support a
federal constitutional claim. Plaintiff will be given time to show
cause why this action should not be dismissed for the reasons
stated in this Memorandum and Order.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff is
granted thirty (30) days in which to submit a properly completed
Application to Proceed Without Prepayment of Fees upon courtprovided forms.
IT IS FURTHER ORDERED that within the same thirty-day
period, plaintiff must submit to the court an initial partial
filing fee of $ 8.50.
Any objection to this order must be filed on
or before the date payment is due.
The failure to pay the fees as
required herein may result in dismissal of this action without
IT IS FURTHER ORDERED that within the same thirty-day
period, plaintiff is required to file a Response to this Memorandum
and Order in which he shows (1) that he has properly exhausted all
available prison administrative remedies on each of his claims, and
(2) cause as to why this action should not be dismissed for the
reasons stated in this Memorandum and Order.
The clerk is directed to send plaintiff IFP forms.
IT IS SO ORDERED.
Dated this 12th day of September, 2011, at Topeka, Kansas.
s/Sam A. Crow
U. S. Senior District Judge
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