Garrett v. Slief 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 the same thirty-day period, plaintiff is required to submit his claims upon the proper forms, and in his new complaint to cure the other deficiencies. Within the same thirty-day period, plaintiff is also required to show cause why this action should not be dismissed because he failed to fully exhaust administrative remedies prior to filing this lawsuit. Plaintiff's motion 2 for appointment of counsel is denied without prejudice. This action is dismissed and all relief is denied as against defendant State of Kansas based upon its immunity. 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.

11-3226-SAC

Nathan Slief, Correctional
Officer, LCMHF, 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 state employees 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.

Moreover, a plaintiff is required to sign his complaint.

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 (IFP) upon court-approved forms.
Forms for filing a IFP motion will be sent to plaintiff.

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 $350.00
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.”
1915(a)(2).

28 U.S.C. §

This action may not proceed until plaintiff satisfies

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

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
alleges as follows.

While he was in cell #105 in “segregation F-1

unit,” his hands were slammed in the bean hole, he was called a
racist name, and he was not allowed to see the nurse afterward.
As count I, plaintiff claims that he was discriminated
against when he was called a racist name.
As Count II plaintiff claims that he was subjected to cruel
and unusual punishment in violation of the Eighth Amendment, when
he was subjected to excessive force and denied medical treatment.
As Count III, plaintiff claims that other guards have
battered him “in ways of discomfortness (sic).”
Plaintiff seeks money damages.

SCREENING
Because Mr. Garrett is a prisoner suing State employees,
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.
1915A(a) and (b).

28 U.S.C. §

Having screened all materials filed, the court

finds the complaint is subject to being dismissed for reasons that
3

follow.

STATE OF KANSAS DISMISSED AS IMMUNE
Under the Eleventh Amendment, the State of Kansas is
absolutely immune to suit for money damages, and there is no
evidence that the State has waived its immunity in this case.

See

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-100
(1984).

Accordingly, this action is dismissed as against this

defendant.

FAILURE TO PROVIDE REQUISITE INFORMATION FOR EACH DEFENDANT
The only defendants named in the caption of the complaint
are “Slief/Ragan/Snell” and State of Kansas.

The only defendants

for whom the requisite information, such as location and place of
employment, are provided in section (2) of the form complaint are
Nathan Slief, Correctional Officer I (LCMHF); and to some extent,
State of Kansas.

Rule 10 of the Federal Rules of Civil Procedure

requires that all parties be named in the caption of the complaint.
Accordingly, the 4 parties actually named in the caption are
considered

the

only

defendants

in

this

case

at

this

time.

Plaintiff must include the full name, if known, of each defendant
in the caption of his new complaint, and provide the information
required as to each defendant in section (2) on the front page
(using the back of the page if necessary).

Any person that is not

named in the caption of the new complaint shall not be treated as
a defendant in this case and shall not be served.
4

ALLEGATIONS SUGGEST FAILURE TO EXHAUST
Although plaintiff has marked “yes” in response to the
general question regarding exhaustion of administrative remedies on
his

current

form

complaint,

his

description

of

his

efforts

indicates that he has submitted two form-9 grievances only.

He

does not provide “the date of disposition, result, and reasons
given for the administrative decision” at the two higher, appellate
levels.

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.

This exhaustion requirement “is mandatory, and the district

court [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

5

a § 1983 claim . . . .”

Id. (citing Jernigan v. Stuchell, 304 F.3d

1030, 1032 (10th Cir. 2002)).

While failure to exhaust generally

is an affirmative defense 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, 1225 (10th Cir. 2007)(acknowledging district courts may
raise exhaustion question sua sponte, consistent with 42 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.

The

second level is a grievance submitted to a Unit Team member.
ADC 44–15–101(d).

KS

Next, the inmate may appeal to the Warden, and

ultimately to the Secretary of Corrections.
Accordingly,

the

court

finds

Id.

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
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further notice.

FAILURE TO STATE A CLAIM
1.

Discrimination Claim

Plaintiff’s allegations that he was call a racist name,
taken as true, fail to evince a federal constitutional violation.
While the court does not condone a prison official’s unprofessional
conduct in calling a black inmate a racist name, such verbal abuse
does

not

give

Constitution.

rise

to

a

cause

of

action

under

the

federal

Accordingly, plaintiff’s claim of discrimination

based upon these allegations is subject to being dismissed.

2.

Excessive Force Claim

In the body of the complaint, plaintiff names “Nathan
Slief, CO I; Ragan, CO II; and Snells CO I, and states that they
refused to allow him to see the nurse after slamming his hands in
the bean hole.
incident.

However, he does not provide the date of this

Nor does he describe any of the circumstances that led

to his hand being in the bean hole and its being slammed.

In

addition, he fails to describe any injury to his hand that was
“sufficiently serious” to require immediate medical attention.
The United States Supreme Court has held that an inmate
advancing a claim of cruel and unusual punishment based on denial
of medical care must establish “deliberate indifference to serious
medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976); Boyett

7

v.

County

of

Washington,

282

Fed.Appx.

667,

672

(10th

Cir.

2008)(citing Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005)).
The “deliberate indifference” standard has two components: “an
objective component requiring that the pain or deprivation be
sufficiently serious; and a subjective component requiring that
[prison] officials act with a sufficiently culpable state of mind.”
Miller v. Glanz, 948 F.2d 1562, 1569 (10th Cir. 1991); Martinez v.
Garden, 430 F.3d 1302, 1304 (10th Cir. 2005); Boyett (citing Self
at 1230-31; see also Mata, 427 F.3d at 751)).

In the objective

analysis, the inmate must show the presence of a “serious medical
need,” that is, “a serious illness or injury.”

Estelle, 429 U.S.

at 104, 105; Farmer v. Brennan, 511 U.S. 825, 834 (1994).

A

medical need is sufficiently serious if it “has been diagnosed by
a physician as mandating treatment or . . . is so obvious that even
a lay person would easily recognize the necessity for a doctor’s
attention.” Boyett (citing Sealock, 218 F.3d at 1209 (quoting Hunt
v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999)); Ramos v. Lamm,
639 F.2d 559, 575 (10th Cir. 1980); Hunt v. Uphoff, 199 F.3d 1220,
1224 (10th Cir. 1999). The “subjective component is met if a prison
official knows of and disregards an excessive risk to inmate health
or

safety.”

Martinez,

430

F.3d

at

1304

(citing

Sealock

v.

Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000)(quotation omitted));
Boyett (citing Farmer, 511 U.S. at 837; see also Estelle v. Gamble,
429 U.S. 97, 106 (1976)).

In measuring a prison official’s state

of mind, “the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm
8

exists, and he must also draw the inference.”

Martinez at 1305

(citing

1204

Riddle

v.

Mondragon,

1996)(quotation omitted)).
to

provide

adequate

83

F.3d

1197,

medical

care

“fail[s]

to

altogether,

the

treatment
inmate

is

was

delayed

required

establish

the

Estelle, 429 U.S. at 106;

Wilson v. Seiter, 501 U.S. 294, 297 (1991).
where

Cir.

It follows that an inadvertent failure

requisite culpable state of mind.”

situations

(10th

to

rather

show

“substantial harm” as a result of the delay.

Additionally, in

that

than
he

denied
suffered

Garrett v. Stratman,

254 F.3d 946, 950 (10th Cir. 2001).
The court finds that plaintiff’s claims asserted under the
Eighth Amendment are subject to being dismissed because he does not
allege sufficient facts to plausibly indicate either that he
suffered a sufficiently serious injury or that defendants acted
with a sufficiently culpable state of mind.

3.

Count III

Plaintiff alleges no facts whatsoever to support count III
in his complaint.

Thus, he fails to allege sufficient facts to

state a constitutional claim based upon battery by “other guards.”
In any event, he cannot sue the named defendants for battery by
“other guards.”
Plaintiff is given time to submit his complaint upon the
correct forms. In the correct 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
9

without further notice.

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,
and plaintiff 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 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 proper
forms,2 and in his new complaint to cure the other deficiencies
that are discussed herein.

2
Plaintiff must write the number of this case on the first page of his
correct complaint. He must also 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 new complaint.

10

IT IS FURTHER ORDERED that within the same thirty-day
period plaintiff is also required to show cause why this action
should

not

be

dismissed

because

he

failed

to

fully

exhaust

administrative remedies prior to filing this lawsuit.
IT

IS

FURTHER

ORDERED

that

plaintiff’s

Motion

for

Appointment of Counsel (Doc. 2) is denied without prejudice.
IT IS FURTHER ORDERED that this action is dismissed and all
relief is denied as against defendant State of Kansas based upon
its immunity.
The clerk is directed to send plaintiff § 1983 forms and
IFP forms.
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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