Matson v. Kansas, State of et al

Filing 4

MEMORANDUM AND ORDER ENTERED: Plaintiff is required to satisfy the filing fee herein by either submitting the remainder of the filing fee, which is $50.00; or the certified statement of his inmate account for the appropriate six-month period to support his pending motion to proceed WPF. Plaintiff is given thirty (30) days in which to file a complete Amended Complaint upon forms provided by the court that either cures the deficiencies or omits the improperly joined or otherwise deficient claims. Signed by Senior District Judge Sam A. Crow on 1/5/2012. (Mailed to pro se party Mike C. Matson by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MIKE C. MATSON,
Plaintiff,
v.

CASE NO.

11-3192-SAC

STATE OF KANSAS,
et al.,
Defendants.
MEMORANDUM AND ORDER
This civil complaint, 42 U.S.C. § 1983, was filed pro se by an
inmate of the Norton Correctional Facility, Norton, Kansas (NCF).
Having

considered

the

materials

filed,

the

court

finds

that

plaintiff has not satisfied the filing fee and that the complaint is
deficient in numerous respects. Mr. Matson is given the opportunity
to cure these defects by filing an Amended Complaint.

FILING FEE
Mr. Matson filed an Application to Proceed Without Prepayment
of Fees (WPF)(Doc. 2).

However, shortly thereafter, he submitted

$300.00 for payment of fees.

He also sent a letter stating he had

learned the fee is $350.00, that he no longer wished to proceed
without prepayment, and that he was requesting a withdrawal of
another $50.00 to be sent to the court.

This letter was received on

November 10, 2011, but the court has not received any additional
funds from Mr. Matson.

Plaintiff has neither paid the full filing

fee nor submitted a complete motion to proceed WPF.
28 U.S.C. § 1915 requires that a prisoner seeking to bring a
civil action WPF submit an affidavit described in subsection (a)(1),

and a “certified copy of the trust fund account statement (or
institutional equivalent) for the prisoner for the 6-month period
immediately preceding the filing” of the action “obtained from the
appropriate official of each prison at which the prisoner is or was
confined.”

28 U.S.C. § 1915(a)(2).

This action may not proceed

until Mr. Matson has complied with § 1915(a) by either paying the
remainder of the fee or submitting the certified statement of his
inmate account for the appropriate six-month period to support his
WPF motion, and may be dismissed without further notice if plaintiff
fails

to

satisfy

the

filing

fee

prerequisite

within

the time

allotted.

SCREENING
Because Mr. Matson 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 to
such relief.

28 U.S.C. § 1915A(a) and (b).

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).

To

avoid dismissal, the complaint’s “factual allegations must be enough
to raise a right to relief above the speculative level” and “to
state a claim to relief that is plausible on its face.”
Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).
2

Bell

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.

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.
2006).
not

Anderson v. Blake, 469 F.3d 910, 913 (10th Cir.

“[W]hen the allegations in a complaint, however true, could

raise

a

appropriate.

claim

of

entitlement

to

Twombly, 550 U.S. at 558.

relief,”

dismissal

is

Having screened all

materials filed, the court finds the complaint filed in this case is
subject to being dismissed for the following reasons.

COMPLAINT NOT UPON FORMS
Plaintiff’s pro se complaint is not upon forms as required by
local court rule.
his claims.

Nor is it a short and plain or clear statement of

Mr. Matson is required to submit an Amended Complaint

upon court-provided forms.

The Amended Complaint, upon its filing,

shall completely supercede the original complaint, which will not be
considered further herein. It follows that plaintiff may not simply
refer to the contents of his original complaint, but must include in
his Amended Complaint all claims and all allegations that he wishes
to present to the court.
Plaintiff must follow the instructions and properly utilize the
forms, which means he will be required to designate separate,
numbered counts or grounds upon which he seeks relief; and follow
each count with only those facts that are relevant to that claim.
The

court

has

attempted

herein
3

to

delineate

the

claims

that

plaintiff

raises

in

deficiencies in each.

his

original

complaint,

and

discuss

the

Plaintiff is given the opportunity to cure

those deficiencies by filing his Amended Complaint, in which he must
either cure the deficiencies or omit the deficient claims.

FAILURE TO ALLEGE PERSONAL PARTICIPATION OF EACH DEFENDANT
The following are named as defendants in this case: The State
of Kansas; Kansas Department of Corrections (KDOC); Ray Roberts,
Secretary of Corrections (SOC); Jay Shelton, Warden, NCF; Joel
Hrabe, Deputy Warden, NCF.

Plaintiff sues defendants in their

individual and official capacities.
The State of Kansas and its agencies, including the KDOC, are
immune to suit for money damages.

Accordingly, plaintiff’s claim

for damages against these two defendants is denied.
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.

Trujillo v.

Williams, 465 F.3d 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.

“plaintiff

1993)(affirming
failed

to

district

allege

court’s

personal

dismissal

participation

where
of

the

defendants”). A supervisor’s liability may not be predicated solely
upon a theory of respondeat superior.

Rizzo v. Goode, 423 U.S. 362,

371 (1976); Gagan v. Norton, 35 F.3d 1473, 1476 FN4 (10th Cir. 1994),
cert. denied, 513 U.S. 1183 (1995).

Instead, to be held liable

under § 1983, a supervisor must have personally participated or
4

acquiesced in the complained-of constitutional deprivation.
v. Grubbs, 841 F.2d 1512, 1528 (10th Cir. 1988).

Meade

The supervisor’s

“role must be more than one of abstract authority over individuals
who actually committed a constitutional violation.”
Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008).

Fogarty v.

As the U.S. Supreme

Court recently explained in Ashcroft v. Iqbal, 556 U.S. 662, 129
S.Ct. 1937, 1948 (2009):
Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a
theory of respondeat superior.
(Citations omitted).
Because vicarious liability is 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.
Id.
Plaintiff’s theory of liability for all but one of the named
defendants appears to be supervisory capacity.

He claims that

defendants State of Kansas and KDOC “failed to supervise or properly
train” defendants Roberts, Shelton and Hrabe; that Roberts failed to
supervise or properly train Shelton and Hrabe; that Shelton failed
to

supervise

or

properly

train

Hrabe;

and

that

through

these

failures the supervisory defendants “permitted” others to commit the
complained-of acts.
participated

because

He also alleges that each supervisor directly
they

“learned

of

the

violation”

by

his

complaints to them, yet failed to “take any action to fix or resolve
the matter.”

In addition, he claims that the defendant supervisors

were negligent.
Plaintiff’s allegations of failure to supervise are nothing
more than conclusory statements.

He alleges no facts indicating

that defendant KDOC, State of Kansas, Roberts, or Sheldon directly
participated in any of the allegedly unconstitutional acts described
5

in his complaint. His bald statement that the defendant supervisors
“created the policies and customs” is not sufficient.

He fails to

describe any particular policy, state that it was established by a
named defendant, describe the circumstances of its application to
him, and explain how it affected him in an unconstitutional manner.
Nor can plaintiff validly base his claims against the supervisory
defendants

upon

their

decisions

on

administrative

appeal

of

grievances regarding acts or inactions previously taken by other
individuals.

In sum, plaintiff’s bald allegations against the

supervisory defendants fail to state a claim.
Plaintiff’s allegations of negligence are also conclusory.
Moreover, negligence on the part a prison official does not state a
federal constitutional claim and is therefore not a basis for relief
under § 1983.
The court concludes that plaintiff has failed to allege facts
establishing the personal participation of the defendants who are
sued based upon their supervisory capacity.

Mr. Matson is required

to allege additional, sufficient facts in his Amended Complaint to
show the personal participation of each of these defendants.

If he

fails to do so within the time allotted, this action will be
dismissed as against those defendants without further notice.

IMPROPER JOINDER OF CLAIMS
Plaintiff has improperly joined claims in his complaint.
Rule

20(a)(2)

governs

permissive

joinder

of

defendants

pertinently provides:
(2) Defendants. Persons . . . may be joined in one action
as defendants if: (A) any right to relief is asserted
against them jointly, severally, or in the alternative
6

FRCP
and

with respect to or arising out of the same transaction,
occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants
will arise in the action.
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 held in George v.
Smith, 507 F.3d 605, 607 (7th Cir. 2007), that under “the controlling
principle” in FRCP Rule 18(a), “[u]nrelated claims against different
defendants belong in different suits.”

Requiring adherence in

prisoner suits to the federal rules regarding joinder of parties and
claims prevents “the sort of morass [a multiple claim, multiple
defendant] suit produce[s].”

Id.

It also prevents prisoners from

“dodging” the fee obligations1 and the three strikes provisions2 of
the Prison Litigation Reform Act.

Id. (FRCP Rule 18(a) ensures

28 U.S.C. § 1915(b)(1) and (2) pertinently provide: “[I]f a prisoner
brings a civil action or files an appeal in forma pauperis, the prisoner shall be
required to pay the full amount of a filing fee.” To that end, the court “shall
assess” an initial partial filing fee, when funds exist, and after payment of the
initial fee, the prisoner “shall be required to make monthly payments of 20
percent of the preceding month’s income credited to the prisoner’s account.” Id.
1

2

28 U.S.C. § 1915(g) provides: In no event shall a prisoner bring a
civil action or appeal a judgment in a civil action or proceeding under this
section if the prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court of the United
States that was dismissed on the grounds that it is frivolous, malicious, or fails
to state a claim upon which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.

7

“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

required fees.”).

prisoner

may

file without

prepayment

of the

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.

Plaintiff raises a hodgepodge of claims against a variety of
defendants, which do not appear to have arisen from the same set of
transactions.

These unrelated claims cannot all be joined in a

single civil action. Plaintiff is not precluded from litigating any
improperly-joined claim, but is simply required to do so in a
separate civil action.
It is not for this court to decide which claims plaintiff will
include in his Amended Complaint.

He is required to adhere to this

Order in deciding which claims he will continue to pursue in this
case, and then omit any other claims that are not properly joined.
If he does not comply, the court will dismiss claims that it finds
to

be

improperly

joined

with

the

main

counts

in

his

Amended

Complaint.

STRIP SEARCH CLAIM
Plaintiff claims that he was subjected to an illegal strip
search.

In support of this claim, he alleges as follows.

On two

days in October 2010, at the El Dorado Correctional Facility, El
Dorado, Kansas (EDCF), inmates who visited their families were
“strip searched in front of high definition digital cameras,” which
both displayed live footage and recorded it. Following a visit with
his father during that time, Mr. Matson was ordered to undress in
8

front of the cameras and perform several routine search acts while
nude.

Plaintiff was thus exposed to “others not involved in the

strip search.”

He “did not waive his rights.”

Plaintiff submitted a Personal Injury Claim Form and filed a
“formal grievance over the cameras.”

The “Warden’s office” ordered

“destruction of the video evidence,” issued “a false statement that
the cameras were never operational,” and advised that the proper
remedy was a claim with the Joint Legislative Committee.

Plaintiff

filed such a claim, and the investigation concluded that his claims
were true.

However, on September 15, 2011, the committee dismissed

his claim without prejudice “wanting the plaintiff to access the
court and use their remedy as a last resort.”

Plaintiff asserts

that this incident violated K.S.A. 22-2521(b) and KDOC-IMPP 12-103.
This claim is subject to dismissal for several reasons. First,
violations of a state statute and a state regulation do not amount
to federal constitutional violations, and thus fail to state a claim
for relief in federal court under 42 U.S.C. § 1983.
plaintiff

does

not

allege

facts,

such

as

dates

and

Second,
names

to

establish frequent viewing by females, so as to state a violation of
his Fourth Amendment right to privacy, which may be significantly
curtailed in prison for security reasons.

Hudson v. Palmer, 468

U.S. 517, 527-28 (1984)(“A right of privacy in traditional Fourth
Amendment terms is fundamentally incompatible with the close and
continual surveillance of inmates and their cells required to ensure
institutional security and internal order.).
Third, plaintiff does not allege facts indicating that any
named defendant actually participated in the search-taping incident.
This incident, by his own account, occurred at the EDCF, and none of
9

the defendants named in this action are EDCF employees.

It should

be clear from the discussion earlier herein that plaintiff may
properly sue only the person or persons that caused him to be stripsearched in an allegedly unconstitutional manner.
Furthermore, plaintiff may not join claims regarding events
that occurred at the EDCF with claims regarding unrelated events
that occurred at the NCF.

Mr. Matson is required to

allege

sufficient, additional facts in his Amended Complaint to cure these
deficiencies
dismissed

within

without

the

time

further

allotted,

notice

or

for

this

failure

constitutional claim, lack of personal participation,

claim
to

may

be

state

a

and improper

joinder.

DENIAL OF ACCESS CLAIM
Plaintiff claims that his right of access to the courts has
been violated.

In support of this claim, he alleges as follows.

Plaintiff initiated a civil lawsuit in a state district court.3

In

connection with that lawsuit he made requests for withdrawal of
funds from his “Forced Savings” account.

“The defendants” approved

his initial requests for withdrawal to pay the filing fee, but
denied his requests for withdrawal to pay service of summons fees
and for copies of his complaint.

Defendant Deputy Warden Hrabe

exercised “unauthorized control over” his requests.

Plaintiff had

to file in forma pauperis and explain the delay of funds to the

3

Plaintiff indicates that on December 18, 2010, he filed a Writ of
Mandamus in the Kansas Supreme Court claiming “fraudulent misappropriation of
Inmate Benefit Funds” in the amount of $6,000,000.00. He sought an injunction
protecting him from defendants “chilling” his actions and retaliating against him
for filing the mandamus. His petition was denied by the Kansas Supreme Court
“leaving him to file a civil suit in the district court” for the misappropriation.

10

state court.

Mr. Matson appears to claim that defendant Hrabe

thereby obstructed his communication with the court clerk and
delayed this filing by 21 days.
Plaintiff’s claim that the denial of his withdrawal requests
interfered with his access to the state court is belied by his own
allegation that his state case was merely delayed 20 days and he was
allowed to proceed.

In order to state a claim of unconstitutional

denial of court access, a plaintiff must show actual injury.

That

is, he must allege facts showing that he had a non-frivolous case
actually

dismissed

or

substantially

impeded.

Plaintiff’s

allegations, taken as true, do not show actual injury.
To

the

extent

plaintiff

is

claiming

that

Hrabe’s

taking

possession of his withdrawal requests violated either a state
statute or an IMPP, no federal constitutional violation is stated,
because violations of state law or regulations are not grounds for
relief under § 1983.
Plaintiff’s claims regarding access to his state court action
do not appear to be properly joined with any of the other claims he
raises in this complaint, except the next two that also allege the
involvement of defendant Hrabe.

He must decide which claim or

claims he will proceed upon, and then omit any other claims that are
improperly joined.
The court notes that plaintiff makes no argument and provides
no authority for his assertion that the Forced Savings account is an
illegal misappropriation of inmate funds.

He may have made those

arguments in state court, but he has not presented them to this
court.

This allegation appears to be nothing more than part of the

background statement for his access claim.
11

For this reason, it is

not considered as a claim before this court.
Plaintiff

also

claims

that

defendants

have

wrongfully

promulgated or interpreted the IMPP governing Forced Savings to
disallow spending on legal copies and service of summons fees as
well as a regulation to require fees for copies.

These claims on

their face involve matters of state law that are not cognizable
under § 1983.

Plaintiff has not alleged facts showing any actual

injury to a non-frivolous lawsuit that has resulted from this state
policy or regulation, and thus these allegations fail to support his
claim of denial of access.

DEPRIVATION OF PROPERTY CLAIM
Plaintiff claims unlawful deprivation of property. In support,
of this claim he alleges as follows.

On July 13, 2011, defendant

Hrabe retained plaintiff’s envelope with a 44-cent stamp. Plaintiff
filed a grievance and property claim against Hrabe to retrieve this
property.

On August 4, 2011, defendant Hrabe responded to the

grievance.

Hrabe’s handling of this grievance was a violation of

K.A.R. 44-15-101(a), which provided that the “employee who appears
to be involved in the matter shall not participate in any capacity
in the resolution of the grievance.”

Hrabe responded that he had

searched for the property without success and had no reason to
retain it.

Plaintiff appealed to the Warden.

On August 22, 2011,

he was called to the Unit Team’s office and given the stamped
envelope along with his withdrawal requests.

He was asked to drop

the property claim and grievance, but he declined.
plaintiff’s

grievance that had

been

forwarded

A copy of

to the

SOC was

returned; and only then, on September 16, 2011, was processed and
12

answered by the Warden.
To the extent plaintiff is claiming that Hrabe’s response to
his grievance violated either a state statute or an IMPP, the court
reiterates that violations of state laws or regulations are not
grounds for relief under § 1983.
Moreover, even accepting the facts alleged in support of
plaintiff’s property deprivation claim as true, they fail to state
a claim of federal constitutional magnitude.

First, the temporary

loss of a 44-cent stamped envelope is de minimus, and utterly fails
to present a federal constitutional violation.

Second, a claim of

deprivation of property without due process is not grounds for
relief under § 1983, where as here, plaintiff had an available
administrative remedy for property claims as well as a cause of
action in state court for loss of personal property.
Finally, this claim does not appear to be related to claims
that did not involve defendant Hrabe, and is thus improperly joined
with any such claim.

HARASSMENT AND RETALIATION CLAIMS
Plaintiff claims that defendants have retaliated against and
harrassed him for engaging in constitutionally protected activities
of filing grievances and seeking redress in court.
these claims, he alleges the following.

In support of

On September 1, 2011,

plaintiff was subjected to a property inspection and audit of his
cell by two correctional officers at Hrabe’s request.

On September

14, 2011, plaintiff filed a “property claim” based on defendant
Hrabe’s conduct regarding the withdrawal requests.

That same day a

correctional officer entered his cell and stated, “Deputy Warden
13

Hrabe sent me to audit your property and do a cell search.”

Later

that day a unit team member and the correctional officer returned
and went through his property again at Hrabe’s instruction.
September

15,

2011,

retaliatory

act”

subordinates

to

of

plaintiff
Hrabe

conduct

submitted

abusing

harassing

engaging in protected activity.4

his
acts

a

grievance

authority
against

by

“on

On
the

ordering

plaintiff

for

Plaintiff was removed from his

single-man, “spacious room” with a walk-in closet that can only be
occupied by Incentive Level 3 inmates; and transferred to the
“intake

and

disciplinary

cellhouse

‘C’,”

which

houses

mainly

Incentive Level 1 inmates, new inmates, and inmates in disciplinary
trouble.

He

claims

that

he

was

moved

to

a

cell

with

unconstitutional conditions to chill his constitutional activities
and inflict hardship and harassment upon him.
Plaintiff claims other acts were retaliatory as follows.

On

January 20, 2011, he was placed in administrative segregation (ad
seg) “under a fabricated investigation.”

On March 28, 2011, he was

transferred to NCF, which separated him from his family in violation
of IMP 11-103.

It also “obstruct[ed] his access to the courts”

because his wages or other funds used for legal copies and fees have
been cut off, and he has been removed “from his word processor
database,” which is not available at NCF. Two other facilities were

4
Plaintiff alleges that on this same date, defendant Hrabe was
contacted by “the Management Office’s Public Information Officer” and instructed
to “provide the plaintiff with the records he had requested under the Kansas Open
Records Act,” which had been denied; but that Hrabe continues to refuse to allow
plaintiff to view the records. Plaintiff seeks no relief with regard to these
allegations, and does not describe the records or other relevant circumstances.
For these reasons, this is not considered a claim in this action.

14

closer to his family,5 had private industry jobs available, and
could have provided access to his word processor database.
two requests for transfer at the NCF that were

He made

denied, even though

he “meets all the criteria” on transfers in IMPP 11-103.

Plaintiff

claims that he was sent to NCF to punish him and to chill his
efforts to access the courts.
Mr. Matson seeks transfer to a facility closer to his family.
He also seeks an injunction to stop all retaliatory acts against him
including but not limited to interstate transfers, cell searches for
harassment, false investigations causing placement in ad seg, and
false disciplinary reports by planting items in an inmate’s cell.
Plaintiff’s allegations that his intraprison and interstate
transfers were contrary to two IMPPs, one providing that “[n]o
adverse action shall be taken against any inmate for use of the
grievance procedure” and another prohibiting cell searches for
harassment

purposes,

are

cognizable under § 1983.

matters

of

state

law

that

are

not

He does not state a claim that any

transfer resulted in a denial of court access, if that was his
intent, because he shows no actual injury.

Moreover, plaintiff has

no federal constitutional right to be assigned any particular
incentive level or to remain at any particular prison.

Nor is he

constitutionally entitled to be confined in a prison that provides
access to industry jobs or word processing equipment.
In addition, these claims are subject to being dismissed
because plaintiff does not allege sufficient facts to establish the

5
Plaintiff’s bald statement that his transfer away from his family
violated his right to equal protection is not supported by any facts that
establish the requisite elements of this constitutional claim.

15

elements of a retaliation claim.

His own exhibits indicate to the

contrary that regular cell searches were conducted with the same
frequency as that complained of in his grievance.

In short, he

alleges no facts to establish that these events would not have
occurred “but for” a retaliatory motive on the part of the person
that actually ordered either of his transfers.
These claims are also subject to being dismissed as against all
defendants other than Hrabe because plaintiff does not allege facts
showing the personal participation of any named defendant other than
Hrabe in any described acts.

He alleges no facts showing that Hrabe

personally participated in any transfer decision.
Plaintiff’s

references

to

false

investigations

and

false

disciplinary reports are nothing more than bald statements.

If he

has been found guilty of a disciplinary infraction, he may not seek
damages or other relief based upon its alleged falsity unless and
until he has had the disciplinary decision overturned.
Finally, the court finds no indication in the complaint that
plaintiff’s

claims

regarding

cell

searches

and

transfers

are

properly joined with the other claims, except those also involving
Hrabe.

CENSORSHIP CLAIM
Plaintiff claims that he has been subjected to unconstitutional
censorship.

In support of this claim he alleges as follows.

In

August, 2011, he discovered that the “Facility Mail room” had
blocked an e-mail from “Kansas Voices” and his inquiry back to them.
Kansas Voices had sent an introductory e-mail about their website on

16

which

offenders

incarceration.

can

put

certain

complaints

regarding

their

He would never have known of this e-mail “seizure”

had a new e-mail address not shown up on his list.

He asked his

Unit Team why these e-mail communications were being blocked, and
was informed that the material was being reviewed.

On August 30, he

still had not received the blocked e-mail and filed a formal
grievance.

The Unit Team responded to the grievance that the

material was still under review.
the SOC without success.

He appealed to the Warden and to

He claims that “the defendants” had an

improper motive in keeping this e-mail from him due to its content.
He seeks an injunction requiring that notice be provided to inmates
when mail is seized for review, and that the time for review be
limited to 72 hours.
Accepting plaintiff’s allegations and his own exhibits as true,
the court finds that this claim does not amount to a federal
constitutional violation. The rationale for and the duration of the
delay in plaintiff’s receipt of this e-mail and the fact that it was
not censored but temporarily withheld for review during the normal
course are set forth in his exhibits.

It is well-settled that

prison officials have the authority to screen an inmate’s incoming
mail.

Plaintiff’s allegation of improper motive is completely

conclusory.
Furthermore, plaintiff does not allege that any named defendant
personally participated in the actual withholding of this e-mail.
Finally, this claim also appears to be improperly joined with
every other claim raised herein.

17

OTHER FIRST AMENDMENT CLAIMS
Plaintiff claims that his rights under the First Amendment were
violated by other acts.

In support, he mainly refers to his

allegations that at NCF his mother was removed from his telephone
contact list for over two months except for Mother’s Day weekend.
This claim is subject to being dismissed because the facts
alleged

are

violation.

not

sufficient

to

state

a

federal

constitutional

Plaintiff does not allege that he had no other means of

communicating with his mother or his family.

In addition, his

allegations that after several complaints her number was returned to
his list indicate the matter was resolved administratively.
Moreover, plaintiff does not allege facts showing that any
named defendant was the person who actually removed his mother’s
name from his telephone list.

It also appears that this claim is

not properly joined with others in the complaint.

EIGHTH AMENDMENT CLAIMS
Plaintiff claims that he has been subjected to cruel and
unusual punishment. In support of this claim he alleges as follows.
Conditions in the two-man cells in his housing unit do not “meet
American Correctional Association Standards” with regard to space
and time in the cells.

In particular, he alleges that inmates are

“locked down up to 22 hours a day;” a light is on continuously near
his head resulting in sleep deprivation; video cameras allow “select
employees” including females to view inmates showering; the roof
leaks; inmates are quarantined in the unit with staph infections
that are treated as spider bites and thus never properly reported;

18

the

water

contains

high

levels

of

arsenic,

lead

contaminants; and the broken ventilation system pumps

and

other

outside air

having a temperature of 110 degrees in the summer indoors.
Plaintiff

seeks

damages

and

a

declaration

constitutional rights have been violated.

that

his

He also requests an

injunction requiring removal of digital cameras so he cannot be
viewed in the shower, the installation of water treatment systems,
“to single the cells” in “C” cellhouse, and removal of the night
lights or repositioning of bunks away from the lights.
Plaintiff’s claims of cruel and unusual conditions are subject
to dismissal because he has not provided dates to show the duration
of any of these generally-alleged conditions. Moreover, he seeks no
relief

based

on

the

alleged

failure

to

properly

treat

staph

infections, and alleges no facts describing his personal exposure to
or injury from many of the alleged conditions.

Nor does he allege

facts indicating that any named defendant caused the conditions of
which he complains.

In addition, these claims are not properly

joined with other claims in the complaint.
Plaintiff is given time to cure the deficiencies discussed
above by filing a complete Amended Complaint upon forms provided by
the court upon which he has written the case number of this case.
If plaintiff fails to comply with any of the orders and directions
of the court herein within the time allotted, this action may be
dismissed without further notice.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff is required
to satisfy the filing fee herein by either submitting the remainder
of the filing fee, which is $50.00; or the certified statement of

19

his inmate account for the appropriate six-month period to support
his pending motion to proceed WPF.
IT IS FURTHER ORDERED that plaintiff is given thirty (30) days
in which to file a complete Amended Complaint upon forms provided by
the court that either cures the deficiencies discussed herein or
omits the improperly joined or otherwise deficient claims.
The clerk is directed to send plaintiff § 1983 forms.
IT IS SO ORDERED.
Dated this 5th day of January, 2012, at Topeka, Kansas.

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

20