Matson v. Kansas, State of et al

Filing 7

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 2 for leave to proceed without prepayment of fees, his request in his amended complaint for injunctive relief against future retaliatory acts, and his request for damages against defendant in h is official capacity are denied. This action is dismissed and all relief is denied, without prejudice, as against all defendants with the exception of defendant Joel Hrabe. All claims, with the exception of the claims in Counts I and II of plaintif f's amended complaint 6 , are dismissed from this action, without prejudice. The clerk of the court shall prepare waiver of service forms pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. The clerk of the court shall enter the Ka nsas Department of Corrections as an interested party on the docket for the limited purpose of preparing the Martinez report ordered herein. Signed by Senior District Judge Sam A. Crow on 3/29/2012. (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 action was filed pro se pursuant to 42 U.S.C. §
1983 by an inmate of the Norton Correctional Facility, Norton,
Kansas

(NCF).

The

original

complaint

was

screened,

several

deficiencies were found including improper joinder of several
claims and parties, and plaintiff was give time to satisfy the
filing fee and to submit an Amended Complaint that cured the
deficiencies.

The matter is now before the court upon plaintiff’s

First Amended Complaint (Doc. 6). The Amended Complaint completely
supercedes the original complaint, and the original complaint will
no longer be considered.

FILING FEE
The filing fee has been paid in full.

Plaintiff informed

the court on November 10, 2011, that he no longer desired to
proceed without prepayment of fees.

He has never submitted the

certified statement of his inmate account that is required by

federal law to support a motion to proceed without fees.

For these

reasons, plaintiff’s motion for leave to proceed without prepayment
of fees (Doc. 2) is denied as moot.

SCREENING
Because Mr. Matson is a prisoner suing a state official,
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).

DEFENDANTS NOT NAMED IN THE AMENDED COMPLAINT ARE DISMISSED
In his Amended Complaint, Mr. Matson names as the only
defendant Joel Hrabe, Deputy Warden, NCF.

It follows that this

action is dismissed and all relief is denied, without prejudice, as
against all other defendants named in the original complaint.

CLAIMS AND ALLEGATIONS
As

the

factual

background

plaintiff alleges as follows.1

for

his

Amended

Complaint,

On July 13, 2011, Mr. Matson filed

1
Plaintiff intersperses his allegations of facts with conclusory
statements. For example, he states that defendant’s conduct was to block his
court access, defendant had ordered the plaintiff to be harassed and intimidated
for his complaint against him, but for plaintiff’s filing the complaints against
Harbe, the “first of several cell searches and property audits would not have
occurred,” and “this event was done” to “chill the plaintiff” from his complaints
and litigation. As plaintiff was informed in the court’s prior screening order
(Doc. 4):

2

a grievance and a property claim against defendant Hrabe, in which
he claimed that Hrabe had refused to return plaintiff’s envelope
and stamp.

He sought “disciplinary action” against Hrabe for

“unprofessional conduct.” The stamp and envelope had been included
with a letter and Accounting Withdraw Request (AWR) intended to pay
the filing and service fees in a civil lawsuit against the Kansas
Department of Corrections and prison facilities that plaintiff had
pending in state court.

Plaintiff the moved the state court to

proceed without payment, explained Hrabe’s conduct, and was granted
leave.

As a result, the filing of his state lawsuit was delayed by

21 days.
Hrabe at first “tried to deny” possession of this property,
but others remembered that Hrabe had directed that the property be
sent to him instead of being properly returned to plaintiff.

On

August 22, 2011, plaintiff received his property from defendant.
He was asked but declined to dismiss his grievance and property
claim.

On August 26, plaintiff was asked to waive the time limit

on processing of his grievance at the “facility Warden level,” but
refused.
On September 1, 2011, plaintiff’s cell was searched and a

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). 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
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. Anderson v. Blake, 469 F.3d 910, 913 (10th Cir.
2006).

3

property audit was conducted by “Cellhouse OIC Olsen and Corbin.”
CSI Olsen stated that these acts were taken on Deputy Warden
Hrabe’s orders.
against

On September 2, 2011, plaintiff filed a grievance

defendant

Hrabe

retaliation, and reprisal.

claiming

“intimidation,

harassment,

On September 11 and 28, 2011, “random

room searches were conducted as established by NCF Post Orders.”
On September 14, 2011, plaintiff filed a property claim
against defendant Hrabe, which he alleges was “mandated” by state
statute, “for unlawfully . . . keeping his property from him to
block his access to the court by keeping him from being able to pay
his filing and service fees.”

Later, on September 14, 2011, Unit

Team Hackbarth and COI Edwards entered plaintiff’s cell, conducted
a property audit, and went through plaintiff’s property. Hackbarth
stated that “when he took the property claim to Deputy Warden
Hrabe, Hrabe instructed him to go through (plaintiff’s) property.”
On the morning of September 15, 2011, plaintiff filed
another grievance on defendant Hrabe for abusing his authority,
harassing and intimidating plaintiff, and retaliating against him
for filing the property claim. That evening, plaintiff was “placed
on an Administrative Move list to be made ‘Permanent Party C3
housing’” on orders of defendant Hrabe. Plaintiff was at all times
mentioned an “incentive Level 3 inmate,” with above-model conduct
for 19 years who had been disciplinary-free for several years.

He

was in housing reserved for Level 3 inmates as a privilege and
incentive for good behavior.

The housing that Hrabe ordered him

moved to was “a restrictive disciplinary and intake unit, where
4

Level 1 inmates who have been in disciplinary actions or who are
new intake inmates waiting on housing in general population are
housed.” The cells in this unit “do not meet American Correctional
Associations Standards” for two-men housing.

The “multi-occupancy

mental health restrictions place on the plaintiff are not being
followed” in violation of these standards.
Plaintiff claims that defendant Hrabe’s acts on September
1, 14, and 15, 2011, were retaliatory and would not have occurred
but for the “grievances and claims” he filed against the defendant,
and

that

his

filing

constitutionally

of

protected

the

grievances

activity.

He

and

further

claims
claims

were
that

defendant’s acts were done as punishment for and to chill his
constitutionally-protected activities of exhausting administrative
remedies

and

accessing

the

court.

He

further

claims

that

defendant’s acts “did not advance any legitimate correctional
goals.”
As Count I in his Amended Complaint, Mr. Matson asserts
that defendant Hrabe retaliated against him for exercising his
right under the First and Fourteenth Amendments “to redress his
grievance.”
allegations

As facts in support, he mainly incorporates the
in

his

background

statement,

which

include

his

allegations regarding his filing of a property claim; Hrabe’s
conduct on September 14, 2011, involving Hackbarth and Edwards in
a cell search and property audit; and his housing transfer.

He

repeats that on September 1, 2011, Hrabe e-mailed OIC Olsen and
ordered

him

to

conduct

a

cell
5

search

and

property

audit

of

plaintiff because of plaintiff’s filing of a grievance and property
claim against Hrabe.
As

Count

II,

plaintiff

asserts

that

defendant

Hrabe

demonstrated gross negligence, reckless disregard, and complete
indifference to the plaintiff’s rights. Again, he incorporates his
entire background statement.

He adds that on the three dates in

September, Hrabe ordered his subordinates to conduct cell searches
and property audits on Matson and ordered an administrative move to
intimidate and harass plaintiff contrary to the laws of Kansas and
KDOC regulations.

He also adds that Hrabe “intimidated a victim

and witness” in violation of K.S.A. 21-3832 and “sought reprisals”
in violation of K.A.R. 44-15-104.

He asserts that the court has

pendent jurisdiction over his state law claims.
Plaintiff’s Counts III and IV are repeats of Count I and no
different facts are alleged in support since plaintiff incorporates
his background statement into each count.

Thus, the court finds

that the complaint essentially alleges two counts based upon the
background facts.
Plaintiff alleges that he sues defendant Hrabe in both his
individual and official capacities.

He seeks a declaration that

the acts violated his constitutional rights and the laws of the
State of Kansas as well as an award of compensatory and punitive
damages.

He also seeks an order enjoining defendant from “any

further acts of retaliation” including a transfer out of state,
cell search for harassment purposes, false disciplinary reports and
interference with his legal and official mail.
6

ALL CLAIMS NOT RAISED IN THE AMENDED COMPLAINT ARE DISMISSED
Since plaintiff’s Amended Complaint supercedes his original
complaint, all claims raised in the original complaint that are not
raised in the Amended Complaint are dismissed, without prejudice.
If plaintiff wishes to pursue any of the dismissed claims, he may
do so by submitting one or more separate civil rights complaints
for filing as new actions.

He should not write a case number on

any new complaint, as that will be provided by the clerk.

Mr.

Matson is reminded that he must file any § 1983 complaint upon
court-approved forms, and that he may obtain those forms upon
written request to the clerk of the court.

He is also reminded

that any new action must comply with the Federal Rules on joinder,
and that he will be required to satisfy the filing fee for each new
action filed.

INJUNCTIVE

RELIEF

IS

DENIED

AND

OFFICIAL

CAPACITY

CLAIM

IS

DISMISSED
Plaintiff’s claims for money damages against defendant in
his official capacity must be dismissed.
a

Kansas

Department

of

Corrections

A damages claim against

employee

in

his

official

capacity is in essence a claim against the State of Kansas, and as
such is barred by the State’s Eleventh Amendment immunity.
The court denies plaintiff’s request for an order enjoining
future acts of retaliation including a transfer, cell search for
harassment purposes, false disciplinary reports, and interference

7

with his legal and official mail.

Plaintiff has not alleged facts

showing that any of these actions are likely to occur absent such
relief.

MARTINEZ ORDER REQUIRED
Plaintiff alleges that he has exhausted his administrative
remedies.
The

Tenth

Circuit

Court

of

Appeals

stated

in

Pacheco, 627 F.3d 1178, 1189 (10th Cir 2010):
It is well-settled that “[p]rison officials may
not retaliate against or harass an inmate because
of the inmate's exercise of his right of access to
the courts.” Smith, 899 F.2d at 947. . . . [T]he
allegations . . . identify constitutionally
protected activity in which Mr. Gee engaged
(filing specific grievances against Defendants and
filing a particular habeas petition with the
court); (2) describe a responsive action that
would “chill a person of ordinary firmness from
continuing to engage in that activity” (transfer
to an out-of-state supermax prison); and (3)
recite facts indicating that the action “was
substantially motivated as a response to [his]
exercise of constitutionally protected conduct”
(that Defendants were aware of his protected
activity, that his protected activity complained
of Defendants' actions, and that the transfer was
in close temporal proximity to the protected
activity). Shero v. City of Grove, 510 F.3d 1196,
1203 (10th Cir. 2007)(listing elements of a First
Amendment retaliation claim); see Fogle v.
Pierson,
435
F.3d
1252,
1263-64
(10th
Cir.2006)(concluding that it was inappropriate to
dismiss claim of retaliatory transfer); Frazier v.
Dubois,
922
F.2d
560,
561-62
(10th
Cir.1990)(“[W]hile
a
prisoner
enjoys
no
constitutional right to remain in a particular
institution and generally is not entitled to due
process protections prior to such a transfer,
prison officials do not have the discretion to
punish an inmate for exercising his first
amendment rights by transferring him to a
8

Gee

v.

different institution.” (internal quotation marks
omitted)).
Id.; see also Miskovsky v. Jones, 437 Fed.Appx. 707, 713 (10th cir.
2011)(unpublished case cited for persuasive reasoning only).

The

court finds that proper processing of plaintiff’s claims cannot be
achieved without additional information from appropriate officials
of the Norton Correctional Facililty.

See Martinez v. Aaron, 570

F.2d 317, 319-20 (10th Cir. 1978)(approving order requiring prison
officials to investigate facts surrounding inmate’s civil rights
suit in order to construct an administrative record from which
court may decide jurisdictional issues and make determination of
frivolity under § 1915); see also Hall v. Bellmon, 935 F.2d 1106
(10th Cir. 1991).
IT IS THEREFORE BY THE COURT ORDERED that plaintiff’s
Motion for Leave to Proceed Without Prepayment of Fees (Doc. 2),
his request in his Amended Complaint for injunctive relief against
future retaliatory acts, and his request for damages against
defendant in his official capacity are denied.
IT IS FURTHER ORDERED that this action is dismissed and all
relief is denied, without prejudice, as against all defendants with
the exception of defendant Joel Hrabe.
IT IS FURTHER ORDERED that all claims, with the exception
of the claims in Counts I and II of plaintiff’s Amended Complaint
(Doc. 6), are dismissed from this action, without prejudice.
IT IS FURTHER ORDERED:
(1) The clerk of the court shall prepare waiver of service
9

forms pursuant to Rule 4(d) of the Federal Rules of Procedure, to
be served upon defendant 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 Norton
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
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
10

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 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.
Copies of this Order shall be transmitted to plaintiff, to
defendant, to the Secretary of Corrections, and to the Attorney
General of the State of Kansas.
IT IS SO ORDERED.
Dated this 29th day of March, 2012, at Topeka, Kansas.

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

11