Hughes v. Cawthorn et al
Filing
3
ORDER ENTERED: Plaintiff is granted thirty (30) days in which to submit to the court an initial partial filing fee of $11.00. Any objection to this order must be filed on or before the date payment is due. The failure to pay the fees as requir ed herein may result in dismissal of this action without prejudice. Within the same thirty-day period, plaintiff must show cause why this action should not be dismissed. Signed by Senior District Judge Sam A. Crow on 10/26/2011. (Mailed to pro se party Charley Hughes by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CHARLEY JAMES
HUGHES,
Plaintiff,
v.
CASE NO. 11-3174-SAC
EL DORADO
CORRECTIONAL FACILITY,
et al.,
Defendants.
O R D E R
This civil complaint was filed pursuant to 42 U.S.C. § 1983 by
an inmate of the El Dorado Correctional Facility, El Dorado, Kansas
(EDCF).
The only defendant named in the caption is the EDCF.1
However, elsewhere plaintiff also designates as defendants James
Heimgartner, Warden, EDCF; Officer Cawthorn, Correctional Officer,
EDCF; and Larry Hoshaw, Unit Team Manager, EDCF.
As the factual background for his complaint, Mr. Hughes alleges
as follows.
On August 22, 2011, he was praying inside his cell,
when Officer Cawthorn banged and kicked on his cell and asked him to
stop praying so he could receive his dinner tray. Plaintiff refused
because he was “fasting at the moment and couldn’t eat until
sundown.” Cawthorn saw him praying and should have fed him later in
the day.
Cawthorn told plaintiff that if he didn’t get the tray it
would be a refusal and the tray would not be returned.
The next
day, plaintiff filed a grievance, but was told he should have
stopped for the officer.
1
The following day he was called into
Rule 10 of the Federal Rules of Civil Procedure requires that every
party be named in the caption.
defendant Hoshaw’s office.
He did not accept lunch, dinner, and
breakfast trays because he had food inside his cell.
Hoshaw
declared that plaintiff was on a hunger strike, and was taking his
property.
Plaintiff was maced, tased, and hit with a shock shield
“all because (he) refused to get a tray during (his) prayer.”
As Count I of his complaint, Mr. Hughes asserts violation of
his First Amendment right of freedom of religion.
In support he
recounts that defendant Cawthorn kicked on his door when he could
see plaintiff was praying and would not accommodate plaintiff’s
religious “fast during the month of Ramadan.”
As Count II, plaintiff alleges violation of his First Amendment
right to freedom of speech.
In support, he alleges that defendant
Hoshaw retaliated against him because of the grievance he filed
against Cawthorn and for refusing to switch his prayer times or stop
praying when officers came to his cell.
He seeks money damages.
MOTION TO PROCEED WITHOUT FEES
Plaintiff has filed a motion for leave to proceed in forma
pauperis (Doc. 2), and has attached an Inmate Account Statement in
support as statutorily mandated.
Under 28 U.S.C. § 1915(b)(1), a
plaintiff granted such leave is not relieved of the obligation to
pay the full fee of $350.00 for filing a civil action.
Instead,
being granted leave to proceed in forma pauperis merely entitles an
inmate to proceed without prepayment of the full fee, and to pay the
filing 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
2
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 $ 56.63, and the average monthly balance is
$ 4.85.
The court therefore assesses an initial partial filing fee
of $ 11.00, 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 the
initial fee in the time allotted will result in dismissal of this
action without further notice.
SCREENING
Because Mr. Hughes is a prisoner, the court is required by
statute to screen his complaint and to dismiss the complaint or any
portion thereof that is frivolous, fails to state a claim on which
relief may be granted, or seeks relief from a defendant immune from
such relief.
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.
“To state a claim under section 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, 48-49 (1988)(citations omitted); Northington v.
Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992).
Defendant EDCF is
clearly subject to being dismissed from this action for the reason
3
that the prison facility is not a “person” subject to suit under
Section 1983.
See Will v. Mich. Dep't of State Police, 491 U.S. 58,
66, 71 (1989)(neither state nor state agency is a “person” which can
be sued under Section 1983); Davis v. Bruce, 215 F.R.D. 612, 618
(D.Kan. 2003), aff’d in relevant part, 129 Fed.Appx. 406, 408 (10th
Cir. 2005).
Defendant
Heimgartner
is
also
subject
to
dismissal.
An
essential element of a civil rights claim against an individual is
that person’s direct personal participation in the acts or inactions
Trujillo v. Williams, 465 F.3d
upon which the complaint is based.
1210,
1227
(10th
Cir.
2006)(A
defendant’s
direct
personal
responsibility for the claimed deprivation of a constitutional right
must be established); Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th
Cir.
1996);
Olson
v.
Stotts,
9
F.3d
1475,
1477
(10th
Cir.
1993)(affirming district court’s dismissal where “plaintiff failed
to allege personal participation of the defendants”).
“[T]he
defendant’s role must be more than one of abstract authority over
individuals who actually committed a constitutional violation.”
Fogarty
v.
Gallegos,
523
F.3d
1147,
1162
(10th
Cir.
2008).
Plaintiff’s claim against defendant Warden Heimgartner appears to be
based upon Heimgartner’s affirmance of a denial of a grievance that
plaintiff submitted on the incident. An official’s action affirming
denial of a grievance after the allegedly unconstitutional acts have
already occurred is not the direct personal participation in those
acts that is required to establish liability for violation of
constitutional rights under § 1983.
The court further notes that plaintiff seeks money damages only
and alleges that each defendant acted under color of state law.
4
State officials are entitled to the Eleventh Amendment immunity
accorded to the State which bars suit for money damages, and thus
may not be sued for damages for acts taken within their official
capacities.
In addition, the facts alleged by plaintiff are not sufficient
to show that his rights under the First Amendment were violated.
A
court liberally construes a pro se complaint and applies “less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
litigant’s
“conclusory
allegations
Nevertheless, a pro se
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.”
1997).
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.
To avoid dismissal, the complaint’s “factual allegations
must be enough to raise a right to relief above the speculative
level.”
Bell
Atlantic
Corp.
(2007)(citation omitted).
v.
Twombly,
550
U.S.
544,
555
Put another way, there must be “enough
facts to state a claim to relief that is plausible on its face.”
Id. at 570.
The complaint must offer “more than labels and
conclusions, and a formulaic recitation of the elements of a cause
of action.”
Id. at 555.
The court accepts all well-pleaded
allegations in the complaint as true and considers them in the light
most favorable to the plaintiff.
Anderson v. Blake, 469 F.3d 910,
913 (10th Cir. 2006).
It is settled that under the free exercise clause of the First
Amendment, prisoners must be afforded reasonable opportunities to
5
pursue sincerely held religious beliefs.
319, 322 (1972).
Cruz v. Beto, 405 U.S.
However, the question of what constitutes a
reasonable opportunity is evaluated in the context of the legitimate
penological objectives which govern virtually all aspects of life
inside a maximum security prison.
U.S. 342 (1987).
sincerely
religions,
held
O’Lone v. Estate of Shabazz, 482
While courts have been responsive to inmates’
beliefs
that
reflect
basic
considerably
less
deference
has
tenets
been
of
various
accorded
to
personally held beliefs that are not mandated by the inmate’s
religion.
See e.g., Africa v. State of Pennsylvania, 520 F.Supp.
967 (E.D.Pa.), aff’d, 662 F.2d 1025 (3rd Cir. 1981), cert. denied,
456 U.S. 908 (1982)(assuming prisoner’s beliefs could be considered
a religion, prison officials would not be required to provide a
special religious diet where diet sought was not a mandatory aspect
of the religion’s beliefs). The court in Africa found it “axiomatic
that the free exercise clause of the first amendment does not offer
its protections to mere personal preferences.”
Id. at 971 (citing
Wisconsin v. Yoder, 406 U.S. 205, 216 (1972)); see Dunn v. White,
880 F.2d 1188, 1197 (10th Cir. 1989), cert. denied, 493 U.S. 1059
(1990)(inmate not entitled to exemption from nonconsensual AIDS test
based on vague allegation that he refused on religious grounds where
he did not allege details of his religious faith or what tenet of
his faith required his refusal); see also Kahey v. Jones, 836 F.2d
948, 950 (5th Cir. 1988)(prisoner not entitled to special diet where
she acknowledged other Moslems did not necessarily adhere to the
same standards and where she did not complain of other impediments
to religious observation).
In this Circuit, in order to state a
free exercise violation, a prisoner must allege facts showing that
6
a defendants’ conduct “substantially burdened” his sincerely-held
religious beliefs.
2007).
Boles v. Neet, 486 F.3d 1177, 1182 (10th Cir.
Even then, if defendants’ conduct was justified by any
legitimate
penological
interest
there
is
no
constitutional
violation.
See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007);
Boles, 486 F.3d at 1182.
Plaintiff alleges that defendant Cawthorn interrupted his
praying on a single occasion to deliver his food tray.
These
allegations do not indicate that this interruption significantly
inhibited
or
constrained
plaintiff’s
religious
conduct
or
expression, meaningfully curtailed his ability to express adherence
to his faith, or denied him reasonable opportunity to engage in
fundamental religious activities. See Vasquez v. Ley, 70 F.3d 1282,
*2 (10th Cir. 1995)(quoting Werner v. McCotter, 49 F.3d 1476, 1480
& n. 2 (10th Cir. 1995)).
defendants’
acts
Mr. Hughes has not alleged that
prevented
him
from
continuing
his
prayers
immediately after receiving his tray or at any other time.
Nor has
he alleged that his religious beliefs mandated uninterrupted prayer
at that particular time.
his
personal
His allegations indicate little more than
preference
to
pray
at
that
particular
time.
Accordingly, the court finds that plaintiff’s allegations, accepted
as true, do not plausibly indicate that defendants substantially
burdened plaintiff’s exercise of religious beliefs.
Moreover, plaintiff’s own allegations indicate that defendants
acted with a legitimate penological objective.
Defendant Cawthorn
was attempting to deliver plaintiff’s meal tray.
The orderly
administration of prison activities such as planned delivery of meal
trays
to
cells
obviously
involves
7
a
legitimate
penological
objective. Plaintiff’s allegations of denial of his First Amendment
free exercise of religion are therefore subject to being dismissed
for failure to state a claim.
Plaintiff’s claim that defendant Hoshaw retaliated against him
for filing a grievance and for refusing to switch or interrupt his
prayers to receive his food tray is likewise not supported by
sufficient facts.
“An inmate claiming retaliation must allege
specific facts showing retaliation because of the exercise of the
prisoner’s constitutional rights.”
Peterson v. Shanks, 149 F.3d
1140, 1144 (10th Cir. 1998)(internal quotation marks and citation
omitted); Scott v. Churchill, 377 F.3d 565, 569 (6th Cir. 2004)(In
order “to establish a First Amendment retaliation claim, a prisoner
must demonstrate that he was (1) engaged in protected conduct; (2)
that he suffered an adverse action; and (3) that a causal connection
exists between the protected conduct and the adverse action.”).
“Mere allegations of constitutional retaliation will not suffice;
plaintiffs must rather allege specific facts showing retaliation
because of the exercise of the prisoner’s constitutional rights.”
Frazier v. Dubois, 922 F.2d 560, 562 FN 1 (10th Cir. 1990); see also
Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999)(“[T]he inmate
must allege more than his personal belief that he is the victim of
retaliation.”).
In addition, “a plaintiff must prove that but for
the retaliatory motive, the incidents to which he refers, . . .
would not have taken place.”
Id.
Thus, “it is imperative that [a]
plaintiff’s pleading of a retaliation claim be factual and not
conclusory.
Plaintiff baldly states that he was maced, tased, and hit with
a shock shield, and alleges these acts were retaliatory.
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However,
these statements are completely conclusory.
He does not describe
the circumstances surrounding these alleged acts such as location,
dates, and how each defendant personally participated in macing,
tasing
or
hitting
him
with
a
shock
shield.
He
provides
no
chronology of events whatsoever from which the Court could plausibly
conclude either that these acts occurred or that they were in
retaliation for protected activities.
Plaintiff is given time to show cause why this action should
not be dismissed for the foregoing reasons.
If he fails to show
sufficient cause and otherwise comply with the orders of the court
set forth herein within the time allotted, this action may be
dismissed without further notice.
IT IS THEREFORE ORDERED that plaintiff is granted thirty (30)
days in which to submit to the court an initial partial filing fee
of $ 11.00.
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 prejudice.
IT IS FURTHER ORDERED that within the same thirty-day time
period, plaintiff must show cause why this action should not be
dismissed for the reasons stated herein.
IT IS SO ORDERED.
Dated this 26th day of October, 2011, at Topeka, Kansas.
s/Sam A. Crow
U. S. Senior District Judge
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