Garrett v. Aeimgartener et al
Filing
3
MEMORANDUM AND ORDER ENTERED: Plaintiff is granted thirty (30) days from the date of this order in which to satisfy the filing fee in this case by either paying the fee in full or submitting a properly supported motion to proceed without prepayment of fees upon forms provided by the court. Within that same thirty-day period, plaintiff is required to submit his claims upon the correct forms and to cure the deficiencies. Within that same thirty-day period, plaintiff is required to show cause wh y this action should not be dismissed for failure to full exhaust administrative remedies prior to filing this lawsuit. Plaintiff's motion 2 for appointment of counsel is denied without prejudice. Signed by Senior District Judge Sam A. Crow on 1/30/2012. (Mailed to pro se party Marquis E. Garrett by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARQUIS GARRETT,
Plaintiff,
v.
CASE NO.
11-3225-SAC
J. HEIMGARTENER,
Warden, et al.,
Defendants.
MEMORANDUM AND ORDER
This pro se civil complaint was filed by an inmate of the
Larned Correctional Mental Health Facility, Larned, Kansas (LCMHF)
on forms for filing an action pursuant to 28 U.S.C. § 1331.
COMPLAINT NOT ON PROPER FORMS
Plaintiff names two state officials as defendants. A complaint
under § 1331 is for suing employees of the United States such as
federal prison guards, and not for suing employees of the State of
Kansas.
This complaint has been submitted upon the wrong forms.
Plaintiff will be sent the proper forms and given time to submit his
complaint upon those forms.
The complaint may only be signed by the plaintiff or his lawful
representative.
The court finds that the complaint as well as the
signature of the plaintiff appear to be in the handwriting of
another inmate, Mr. Malone.
Mr. Garrett is required to place his
own signature upon a new complaint submitted upon the correct forms.
It is not legal for Mr. Malone to sign a legal document for someone
other than himself, if that is what occurred here.
FILING FEE NOT SATISFIED
The filing fee for filing any civil complaint is $350.00, and
must be satisfied at the time the complaint is filed.
Plaintiff has
neither paid the fee nor submitted a motion to proceed without
prepayment of fees (WPF) upon court-approved forms.
filing a WPF motion will be sent to plaintiff.
Forms for
Mr. Garrett is
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 from his inmate trust fund account as authorized by 28
U.S.C. §1915(b)(2).1
Furthermore, 28 U.S.C. § 1915 requires that a
prisoner seeking to bring a civil action without prepayment of fees
submit 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 plaintiff satisfies the filing fee in one of these two ways.
He will be given time to do so, and is forewarned that if he fails
to comply within the time allotted, this action may be dismissed
without further notice.
ALLEGATIONS AND CLAIMS
As the factual background for his complaint, Mr. Garrett
1
Pursuant to §1915(b)(2), the Finance Office of the facility where
plaintiff is currently confined will be authorized to collect 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.
2
alleges as follows.
On June 9, 2011, at 11:00 p.m., he was in his
cell at the EDCF when 5 correctional officers in brown uniforms ran
in, sprayed him with mace, kicked him in the back causing severe
pain, and dragged him “from (his) cell to the middle of the floor.”
They did not give him a shower to get the mace out of his eyes.
He
is in constant severe pain.
As count I, plaintiff claims that he was subjected to the use
of excessive force and cruel and unusual punishment in violation of
the Eighth Amendment, mistreatment of a confined person under K.S.A.
21-3425, and kidnaping.
As counts II and III, plaintiff appears to allege that he has
been denied due process and access to the court in that he was
denied legal assistance “from others” under KAR 44-12-702, and “by
not assisting the inmates to give him in law.”
Plaintiff seeks money damages.
SCREENING
Because Mr. Garrett is a prisoner suing state officials, 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 reasons that follow.
ALLEGATIONS SUGGEST FAILURE TO EXHAUST
Although plaintiff has marked “yes” in response to the general
question regarding exhaustion of administrative remedies on his
3
current form complaint, his description of his efforts indicates
that he has submitted a form-9 grievance only.
“the
date
of
disposition,
result,
and
He does not provide
reasons
given
for
administrative decision” at the two higher, appellate levels.
the
It
thus appears from plaintiff’s own allegations that he has not fully
exhausted administrative remedies on his claims.
Under 42 U.S.C. § 1997e(a), “a prisoner must exhaust his
administrative remedies prior to filing a lawsuit regarding prison
conditions in federal court.”
Id.
Section 1997e(a) expressly
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 until such administrative
remedies as are available are exhausted.
Id.
court
This exhaustion requirement “is mandatory, and the district
[is]
not
authorized
to
dispense
with
it.”
Beaudry
v.
Corrections Corp. of Am., 331 F.3d 1164, 1167 n. 5 (10th Cir. 2003),
cert. denied, 540 U.S. 1118 (2004); Little v. Jones, 607 F.3d 1245,
1249 (10th Cir. 2010).
The “inmate may only exhaust by properly
following all the steps laid out in the prison system’s grievance
procedures.”
Little, 607 F.3d at 1249 (citing Woodford v. Ngo, 548
U.S. 81, 90 (2006).
“An inmate who begins the grievance process but
does not complete it is barred from pursuing a § 1983 claim . . . .”
Id. (citing Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.
2002)).
defense
While failure to exhaust generally is an affirmative
and
a
plaintiff
is
not
required
to
plead
it
in
the
complaint, when that failure is clear from materials filed by
plaintiff, the court may sua sponte require plaintiff to show that
he has exhausted. See Aquilar-Avellaveda v. Terrell, 478 F.3d 1223,
4
1225
(10th
exhaustion
Cir.
2007)(acknowledging
question
sua
sponte,
district
consistent
courts
with
42
may
raise
U.S.C.
§
1997e(c)(1) and 28 U.S.C. §§ 1915 and 1915A, and dismiss prisoner
complaint for failure to state a claim if it is clear from face of
complaint that prisoner has not exhausted administrative remedies).
The
Kansas
Department
of
Corrections
makes
a
four-step
grievance procedure available to its inmates, which must begin with
an attempt at informal resolution, and thereafter proceed through
three “levels of problem solving.”
KS ADC 44-15-101, -102.
second level is a grievance submitted to a Unit Team member.
44–15–101(d).
The
KS ADC
Next, the inmate may appeal to the Warden, and
ultimately to the Secretary of Corrections.
Id.
Accordingly, the court finds that plaintiff’s civil complaint
is subject to being dismissed without prejudice pursuant to 28
U.S.C. §§ 1915A, 1915(e)(2)(B)(ii), and 42 U.S.C. § 1997e(c)(1),
based on plaintiff’s failure to exhaust available administrative
remedies prior to filing this action.
Plaintiff is given time to
show cause why this action should not be dismissed due to his
failure to exhaust.
If he does not show good cause within the time
allotted, this action may be dismissed without further notice.
FAILURE TO ALLEGE PERSONAL PARTICIPATION OF DEFENDANTS
The only defendants named in the caption of the complaint and
for whom the requisite information, such as location and place of
employment, are provided are James Heimgartener, Warden, El Dorado
Correctional Facility, El Dorado, Kansas (EDCF); and Ray Roberts,
Kansas Secretary of Corrections (SOC). Rule 10 of the Federal Rules
of Civil Procedure requires that all parties be named in the caption
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of the complaint.
Accordingly, the two officials named in the
caption are considered the only defendants in this case at this
time.
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
of
where
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); Meade v. Grubbs, 841 F.2d 1512,
1528 (10th Cir. 1988)(To be held liable under § 1983, a supervisor
must have personally participated or acquiesced in the complained-of
constitutional deprivation.).
Instead, “the defendant’s role must
be more than one of abstract authority over individuals who actually
committed a constitutional violation.”
F.3d 1147, 1162 (10th Cir. 2008).
Fogarty v. Gallegos, 523
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.
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Id.
In the body of his complaint, Mr. Garrett does not describe a
single, personal act by either defendant Heimgartener or Roberts and
explain how that act was part of the use of force upon which the
complaint
is
based.
Instead,
his
claims
against
these
two
individuals appear to be based upon their supervisory capacities.
Because
plaintiff
has
not
alleged
facts
showing
the
personal
participation of either of the named defendants, this action is
subject to being dismissed for failure to state a claim against the
defendants.
In the supporting facts under Count I, plaintiff names “COI
Cox, CSI
Hennesy,
and
Captain
Foster” and
alleges
that these
individuals all used unnecessary force by macing, kicking him and
not giving him a shower.
However, he has not named any of these
individuals in the caption of the complaint or provided information
about them in the spaces where the forms require information about
each defendant.
In order to have any of these persons treated as
defendants in this case, plaintiff must name them in the caption and
provide the information required for each of them in section (2) on
the first page of the forms.
FAILURE TO STATE CLAIM OF DENIAL OF ACCESS
Plaintiff alleges no facts whatsoever to support counts II and
III in his complaint.
Thus, he fails to allege facts to state a
constitutional claim of denial of access to the court.
It is well-
established that a prison inmate has a constitutional right of
access to the courts.
However, to state a claim of denial of that
7
right, the inmate must allege something more than that the prison’s
legal assistance program is inadequate.
He must “go one step
further and demonstrate that the alleged shortcomings in the . . .
legal assistance program hindered his efforts to pursue a legal
claim,” causing him “actual injury.”
348, 350 (1996).
Lewis v. Casey, 518 U.S. 343,
He may do so by describing an actual prejudice
that resulted to contemplated or existing litigation, such as the
inability to meet a filing deadline or to present a claim, or that
a
nonfrivolous
impeded.
legal
claim
Id. at 350, 353.
has
been
dismissed,
frustrated
or
Plaintiff will be given time to allege
facts showing actual prejudice, which he may do by describing what
court action or actions he is pursuing and how those cases have been
actually
impeded
by
the
alleged
inadequate
access
to
legal
assistance. Obviously, he has not been denied access to this court,
as he has managed to file this complaint and a motion in this case.
Moreover, plaintiff must allege facts showing actual personal
participation in the alleged denial of his right to access by each
person named as a defendant.
He does not allege facts under either
count II or III describing acts taken by either named defendant that
caused him to be denied court access.
Plaintiff is given time to submit his complaint upon the
correct forms.
In that complaint, he has the opportunity to cure
the deficiencies set forth in this order.
If he fails to comply
within the time allotted, this action may be dismissed without
further notice.
FAILURE TO STATE CLAIM OF KIDNAPING
Plaintiff’s claims of kidnaping are completely frivolous, and
8
are dismissed for that reason.
MOTION FOR COUNSEL
The court has considered plaintiff’s Motion to Appoint Counsel
(Doc. 2) and finds it should be denied.
There is no entitlement to
appointment of counsel in a civil rights action seeking money
damages.
Having considered the relevant factors, the court finds
that the interests of justice would not be served by appointing
counsel in this case at this time.
Plaintiff’s excessive force
claim is essentially based upon a single incident at which plaintiff
was present, and he should be able to adequately present the
underlying facts.
A pro se litigant is expected to present the
facts supporting his claim, and is generally not required to provide
or discuss legal citations.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff is granted
thirty (30) days from the date of this Order in which to satisfy the
filing fee in this case by either paying the fee in full or
submitting a properly supported motion to proceed without prepayment
of fees upon forms provided by the court.
IT IS FURTHER ORDERED that within the same thirty-day period,
plaintiff is required to submit his claims upon the correct forms2
and to cure the deficiencies discussed herein in the new complaint.
IT IS FURTHER ORDERED that within the same thirty-day period,
plaintiff is required to show cause why this action should not be
dismissed for failure to fully exhaust administrative remedies prior
2
Plaintiff must write the number of this case on the first page of his
new complaint. He must carefully read and follow the form instructions and answer
all relevant questions on the forms to the best of his ability. He must also
personally sign the complaint.
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to filing this lawsuit.
IT IS FURTHER ORDERED that plaintiff’s Motion for Appointment
of Counsel (Doc. 2) is denied without prejudice.
The clerk is directed to send plaintiff § 1983 forms and motion
forms for proceeding without prepayment of fees.
IT IS SO ORDERED.
Dated this 30th day of January, 2012, at Topeka, Kansas.
s/Sam A. Crow
U. S. Senior District Judge
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