Unruh v. (lnu)

Filing 5

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 2 for leave to proceed in forma pauperis is granted. This matter is dismissed as legally frivolous pursuant to 28 U.S.C. 1915(e). Plaintiff's motions to appoint counsel 3 and for violation of civil rights 4 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 D. UNRUH,
Plaintiff,
v.

CASE NO. 12-3073-SAC

ALL RESIDENTS WEST TWO UNIT; et al.,
Defendants.

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.
In this action, plaintiff alleges the defendants, residents of
a housing unit at the LSH assigned to the Sexual Predator Treatment
Program, have created a hostile environment and subjected him to
harassment by urging staff to prepare reports against plaintiff due
to personal property in his room, by complaining about his failure
to shower, complaining of odor in his cell, and by expressing an
intention to cause plaintiff to regret his transfer to that housing
area. Plaintiff alleges a pattern of maltreatment exists, and he
seeks damages and costs.
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
In

defendant
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).
First, to the extent plaintiff’s complaint may be read to
allege claims only against other residents of the LSH, he does not
state a claim for relief in a federal civil rights action under 42
U.S.C. § 1983. In order to state a claim for relief under that
provision, plaintiff must allege both the violation of a federal
right secured by the Constitution or federal law, and he must show
that the deprivation was caused by a person acting under color of
state law. Hall v. Witteman, 584 F.3d 859, 864 (10th Cir. 2009). The
“under-color-of-state-law element of § 1983 excludes from its reach
merely private conduct, no matter how discriminatory or wrongful.”
American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999).
2

However, even if plaintiff’s complaint were read to include
staff members as defendants, his assertions still would fail to
state a claim for relief.
Plaintiff’s claims concern the conditions of his confinement.
Because plaintiff is confined under a civil commitment, his 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 v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998).
To prevail on such 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
3

lawful detention implicates the Constitution. Rather, “only those
deprivations

denying

necessities

...

the

are

minimum

civilized

sufficiently

measure

grave”

to

of

life’s

establish

a

constitutional violation. Seiter, id.
Here, even assuming plaintiff’s complaint names LSH staff
members as defendants, the plaintiff’s claims do not show that he
suffered a sufficiently serious deprivation caused by the acts of
the defendants. While the conditions plaintiff describes may be
unpleasant,

they

do

not

suggest

that

he

has

been

denied

the

civilized measure of life’s necessities in any regard. The court
therefore

concludes

this

matter

must

be

dismissed

as

legally

frivolous.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motion for
leave to proceed in forma pauperis (Doc. 2) is granted.
IT IS FURTHER ORDERED this matter is dismissed as legally
frivolous pursuant to 28 U.S.C. §1915(e).
IT IS FURTHER ORDERED plaintiff’s motions to appoint counsel
(Doc. 3) and for the violation of civil rights (Doc. 4) 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

4