Sosa v. Goddard et al

Filing 4

MEMORANDUM AND ORDER ENTERED: On or before December 29, 2011, plaintiff shall submit an initial partial filing fee of $17.00. 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. Plaintiff shall show cause on or before December 29, 2011, why this matter should not be summarily dismissed for failure to state a claim for relief. Signed by Senior District Judge Sam A. Crow on 11/29/2011. (Mailed to pro se party Richard Alberto Sosa by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

RICHARD ALBERTO SOSA,
Plaintiff,
CIVIL ACTION
No. 11-3177-SAC

vs.
JONNIE GODDARD, et al.,

Defendants.

MEMORANDUM AND ORDER
This matter is before the court on a civil rights action
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.
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
$86.72, and the average monthly balance is $44.25.

The court

therefore assesses an initial partial filing fee of $17.00,

twenty percent of the average monthly deposit, rounded to the
lower half dollar.1
Because plaintiff is a prisoner, the court is required to
conduct a preliminary screening of the complaint and to dismiss
any part of it that is frivolous, fails to state a claim for
relief, or to seek monetary relief from a defendant who is
immune from such relief.
Here,

plaintiff

28 U.S.C. § 1915A(a)-(b).

complains

he

is

detained

in

a

medium

security facility pursuant to a non-existent detainer.

He

believes this is a result of racial discrimination, and he
argues this classification is cruel and unusual punishment.
However, he attaches correspondence from the warden dated
August 23, 2011, that contains the following explanation of his
housing status:
...Your initial classification at RDU was conducted
on April 18, 2011. You were made low medium due to a
possible ICE detainer. Custody reviews are conducted
every 120 days.
At the Hutchinson Correctional Facility, your review
was conducted by CCI Jenson on August 8, 2011. He
recommended minimum custody because there will be no
detainer filed against you by ICE.
Your minimum
custody was approved on August 19, 2011....
[...]
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

At this time the Hutchinson Correctional Facility has
a waiting list of 78 inmates for a minimum custody bed
and you have been added to that list. You will be
moved when space becomes available.
(Doc. 1,
unnumbered attachment, correspondence from Warden
Cline
re:
Minimum
Custody
dated
August
23,
2011.)(Emphasis added.)
It is settled law that a prisoner has no constitutional
right to any particular classification or housing placement. See
Hewitt v. Helms, 459 U.S. 460, 468 (1983).
classification

implicates

a

protected

Rather, a prisoner’s
interest

only

if

it

imposes an “atypical or significant hardship on the inmate in
relation to the ordinary incidents of prison life,” Sandin v.
Conner, 515 U.S. 472, 484 (1995).

Plaintiff has not identified

any significant hardship; rather, he has expressed a preference
for a housing assignment in a lower custody setting.

This is

not sufficient to state a claim for relief under § 1983.
Because plaintiff has not stated a viable claim for relief,
the court is considering the summary dismissal of this matter.
Not only does plaintiff have no constitutionally protected right
to a specific classification level, the commendably thorough
explanation provided by the warden appears to completely refute
his factual allegations, as it advises the plaintiff that he is
not threatened with an ICE detainer and explains that he is on
a waiting list for minimum custody.

3

IT IS, THEREFORE, BY THE COURT ORDERED that on or before
December 29, 2011, plaintiff shall submit an initial partial
filing fee of $17.00.

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 that plaintiff shall show cause on or
before December 29, 2011, why this matter should not be summarily dismissed for failure to state a claim for relief.
A copy of this order shall be transmitted to the plaintiff.
IT IS SO ORDERED.
DATED:

This 29th day of November, 2011, at Topeka, Kansas.

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

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