Anderson v. Roberts et al

Filing 13

ORDER ENTERED: Plaintiff's motion 2 for leave to proceed in forma pauperis is granted. Plaintiff's motion 9 for leave to file supplementary material is granted. Plaintiff's motion 6 for summary judgment and motion 8 for service are denied without prejudice. Signed by Senior District Judge Sam A. Crow on 7/10/2012. (Mailed to pro se party Roger Anderson by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ROGER ANDERSON,
Plaintiff,
v.

CASE NO. 12-3025-SAC

RAY ROBERTS, et al.,
Defendants.

O R D E R
Plaintiff proceeds pro se on a complaint seeking relief under
42 U.S.C. ' 1983, filed while plaintiff was incarcerated in a Kansas
correctional facility.

Plaintiff subsequently notified the court

of his change of address which reflects plaintiff’s release from
confinement

Plaintiff paid the initial partial filing fee assessed

by the court under 28 U.S.C. ' 1915(b)(1), and is granted leave to
proceed in forma pauperis.

Pursuant to § 1915(b)(1), plaintiff is

obligated to pay the remainder of the $350.00 district court filing
fee in this civil action, through payments from his inmate trust fund
account as authorized by 28 U.S.C. ' 1915(b)(2), if he again becomes
a “prisoner” as defined by 28 U.S.C. § 1915(h).
Because

plaintiff

initiated

this

action

while

he

was

incarcerated, the court is required to screen the complaint and to
dismiss it or any portion thereof that is frivolous, fails to state
a claim on which relief may be granted, or seeks monetary relief from
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a defendant immune from such relief.

28 U.S.C. ' 1915A(a) and (b).

Although a complaint filed pro se by a party proceeding in forma
pauperis must be given a liberal construction, Haines v. Kerner, 404
U.S. 519, 520 (1972), even under this standard a pro se litigant=s
Aconclusory allegations without supporting factual averments are
insufficient to state a claim upon which relief can be based.@
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).

Hall

Plaintiff bears

the burden of alleging Aenough facts to state a claim to relief that
is plausible on its face.@
544, 570 (2007).

Bell Atlantic Corp. v. Twombly, 550 U.S.

See Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th

Cir.2008)(stating and applying Twombly standard for dismissing a
complaint as stating no claim for relief).
ATo state a claim under ' 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the United
States and must show that the alleged deprivation was committed by
a person acting under color of state law.@

West v. Atkins, 487 U.S.

42, 48 (1988).
In the present case, plaintiff cites detainers lodged against
him based on parole violation warrants in his Sedgwick County criminal
cases

08-CR-3393

and

10-CR-2047.

Plaintiff

contends

Kansas

Department of Corrections (KDOC) defendants should have cancelled
these detainers pursuant to a state district court Journal Entry dated
September 15, 2011, dismissing the warrants. Plaintiff alleges
defendants acted negligently and willfully in not cancelling the
detainers until December 14, 2011, which caused plaintiff to be denied

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minimum custody for that three month period.1 Plaintiff seeks damages
for wrongfully being held in conditions posing a greater risk to his
personal safety, and for the emotional and mental distress he suffered
thereby.
To seek relief for the alleged denial of due process, a plaintiff
must first plausibly establish that a defendant’s actions deprived
him of a property interest protected by the Due Process clause.

Hyde

Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir.2000).
In the context of prison life, the Supreme Court has held that such
protected interests generally will be limited to restraint that
“exceed[s] the sentence in such an unexpected manner as to give rise
to protection by the Due Process Clause of its own force,” or “imposes
atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.”

Sandin v. Conner, 515 U.S. 472,

483-84 (1995).
In the present case, plaintiff claims the Sedgwick detainers
in his KDOC record prevented him from being held in minimum custody,
and from participating in specific programming prior to his release.2
However, even if the court were to assume error in the two Sedgwick
County detainers remaining in plaintiff’s KDOC record, the court finds
plaintiff’s three month confinement in medium custody is insufficient
1

Plaintiff also claims defendants failed to follow KDOC
procedures, but § 1983 provides no cause of action for the alleged
violation of state regulations. See Jones v. City & County of Denver,
Colo., 854 F.2d 1206, 1209 (10th Cir.1988)(§ 1983 provides relief
for violations of federal law by individuals acting under color of
state law, but provides no basis for relief for alleged violations
of state law).
2
Plaintiff’s second motion for leave to file supplementary
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to plausibly find plaintiff was subjected to any hardship so
significant or atypical in relation to the ordinary incidents of prison
life for the purpose of establishing a protected liberty interest
in minimum custody placement.

Plaintiff’s allegations thus fail to

state a cognizable claim of constitutional deprivation.
The court further notes that plaintiff identifies no physical
injury resulting from his medium custody confinement that would
entitle plaintiff to the damages he seeks for mental or emotional
distress.

See 42 U.S.C. § 1997e(e)("No Federal civil action may be

brought by a prisoner confined in a jail, prison, or other correctional
facility, for mental or emotional injury suffered while in custody
without a prior showing of physical injury").

Additionally, the

Norton Correctional Facility, named as a defendant in the complaint,
should be dismissed because the facility itself is not a legal entity
subject to suit.

See Aston v. Cunningham, 216 F.3d 1086, 2000 WL

796086 at *4 n. 3 (10th Cir.2000)(unpublished) ("a detention facility
is not a person or legally created entity capable of being sued").
Notice and Show Cause Order to Plaintiff
For these reasons, the court directs plaintiff to show cause
why the complaint should not be summarily dismissed as stating no
claim for relief.

See 28 U.S.C. § 1915(e)(2)(B)(ii).

The failure

to file a timely response may result in the complaint being dismissed
for the reasons stated herein, and without further prior notice.
Plaintiff’s motion for summary judgment and motion for service

evidence in support of his complaint is granted.
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are denied without prejudice.
IT IS THEREFORE ORDERED that plaintiff’s motion for leave to
proceed in forma pauperis (Doc. 2) is granted, with payment of the
remainder of the district court filing fee to proceed as authorized
by 28 U.S.C. § 1915(b)(2).
IT IS FURTHER ORDERED that plaintiff=s motion for leave to file
supplementary material (Doc. 9) is granted, and that plaintiff’s
motion for summary judgment (Doc. 6) and motion for service (Doc.
8) are denied without prejudice.
IT IS SO ORDERED.
DATED:

This 10th day of July 2012 at Topeka, Kansas.

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

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