Unruh v. (lnu)

Filing 4

MEMORANDUM AND ORDER ENTERED: This matter is dismissed as legally frivolous. Plaintiff is granted leave to proceed in forma pauperis. Plaintiff's motion 3 for order and motion to appoint counsel 3 are denied. Signed by Senior District Judge Sam A. Crow on 4/24/2012. (Mailed to pro se party Michael D. Unruh by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MICHAEL DON UNRUH,
Plaintiff,
v.

CASE NO. 12-3057-SAC

TONI (lun),
Defendant.

MEMORANDUM AND ORDER
This matter is before the court on a civil action alleging a
violation of constitutional rights. Plaintiff is detained in the
Larned State Hospital (LSH) under a civil commitment. He proceeds
pro se, and the court grants leave to proceed in forma pauperis.
Plaintiff alleges a violation of his rights under the First
Amendment. He claims the defendant, an employee of the LSH, violated
his rights by telling him he may use computers at the facility while
telling others he may not and by questioning him about whether he
had been in the medication line when she knew that to be the reason
for his late arrival to the line for class. Plaintiff seeks damages,
costs, and the termination of the defendant from her employment.
Discussion
Because

plaintiff

proceeds

pro

se,

the

court

liberally

construes his pleadings. Northington v. Jackson, 973 F.2d 1518,
1520-21 (10th Cir.1992). The court nevertheless must review the
complaint for legal sufficiency. 28 U.S.C. § 1915(e).
Under § 1915(e), the court must dismiss a complaint if it finds

the action (1) is legally frivolous or malicious, (2) fails to state
a claim upon which relief may be granted or (3) seeks monetary
relief

from

§1915(e)(2).

a

defendant

In

this

who

context,

is

immune

the

term

from

suit.

“frivolous”

28

U.S.C.

means

the

complaint rests upon an “inarguable legal conclusion” or “fanciful
factual allegation.” Neitzke v. Williams, 490 U.S. 319 (1989).
The requirement of liberal construction in a pro se plaintiff's
complaint means that where the court can reasonably read the
complaint “to state a claim on which the plaintiff could prevail, it
should do so despite the plaintiff's failure to cite proper legal
authority, his confusion of various legal theories, his poor syntax
and

sentence

construction,

or

his

unfamiliarity

with

pleading

requirements.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Plaintiff broadly asserts a violation of the First Amendment,
a claim that concerns the conditions of his confinement. Because
plaintiff is confined under a civil commitment, such claims are
governed by the Due Process Clause. See Olsen v. Layton Hills Mall,
312 F.3d 1304, 1315 (10th Cir. 2002). However, while plaintiff’s
rights are secured by the Fourteenth Amendment, the courts apply the
identical analysis used in cases arising under the Eighth Amendment
for evaluating claims of unconstitutional conditions of confinement.
See McClendon v. City of Albuquerque, 79 F.3d 1014, 1022 (10th Cir.
1996).

Under

that

standard,

officials

must

provide

“humane

conditions of confinement by ensuring inmates receive the basic
necessities of adequate food, clothing, shelter, and medical care
and by taking reasonable measures to guarantee ... safety.” Barney
2

v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998).
To prevail on a claim alleging unconstitutional conditions of
confinement, a plaintiff must show that the defendant officials
acted with deliberate indifference. See Farmer v. Brennan, 511 U.S.
825 (1994)(explaining deliberate indifference standard).
To establish the defendants' liability under this standard,
plaintiff

must

show

both

that

defendants

“kn[ew]

of

and

disregard[ed] an excessive risk to [his] health and safety,” Farmer,
511 U.S. at 837, and that the alleged deprivation was “sufficiently
serious.” See Wilson v. Seiter, 501 U.S. 294, 298 (1991).
Not every inconvenience or discomfort that occurs during a
lawful detention implicates the Constitution. Rather, “only those
deprivations

denying

necessities

...

are

the

minimum

civilized

sufficiently

grave”

measure
to

of

life’s

establish

a

constitutional violation. Seiter, id.
“[A]s

a

general

matter,

the

First

Amendment

means

that

government has no power to restrict expression because of its
message, its ideas, its subject matter, or its content.” United
States v. Stevens, ––– U.S. ––––, ––––, 130 S.Ct. 1577, 1584 (2010)
(quoting Ashcroft v. A.C.L.U., 535 U.S. 564, 573 (2002)).
Here, the court has reviewed plaintiff’s claims, giving due
deference to his status as a pro se litigant, and finds the
allegations do not reasonably support a First Amendment claim. While
plaintiff expresses frustration with the defendant, there is no
showing of any grave injury arising from confusion whether he may or
may not use the computers in the facility, and even if the defendant
3

knew of the reason for plaintiff’s tardiness to the line for class,
plaintiff suffered no serious deprivation as a result of defendant’s
conduct.

The court therefore concludes this matter is properly

dismissed as legally frivolous under 28 U.S.C. § 1915(e).
IT IS, THEREFORE, BY THE COURT ORDERED this matter is dismissed
as legally frivolous.
IT IS FURTHER ORDERED plaintiff is granted leave to proceed in
forma pauperis.
IT IS FURTHER ORDERED plaintiff’s motion for order (Doc. 2) and
motion to appoint counsel (Doc. 3) are denied.
A copy of this order shall be transmitted to the plaintiff.
IT IS SO ORDERED.
DATED:

This 24th day of April, 2012, at Topeka, Kansas.

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

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