Perry v. Federal Bureau of Prisons et al

Filing 5

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted to and including July 6, 2012, to (1) submit a financial statement in support of the motion for leave to proceed in forma pauperis; (2) supplement the record with a statement of his pursuit of admin istrative remedies following the rejection of his earlier attempts; and (3) submit an amended complaint explaining how each individual defendant personally participated in the alleged violations of his protected rights. The failure to file a timely response may result in the dismissal of this matter without prejudice and without additional prior notice. Signed by Senior District Judge Sam A. Crow on 6/5/2012. (Mailed to pro se party Jason L. Perry by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JASON L. PERRY,
Plaintiff,
v.

CASE NO. 12-3086-SAC

FEDERAL BUREAU OF PRISONS, et al.,
Defendants.

MEMORANDUM AND ORDER
This matter is before the court on a civil rights complaint
filed pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff, a prisoner at
the United States Penitentiary, Leavenworth, Kansas, claims his
constitutional
segregated

rights

housing

in

were

violated

February

2012

after
and

he
his

was

placed

in

legal

mail

was

confiscated. Plaintiff claims he lost an appeal as a result of the
interference with his legal mail and limits on legal phone calls. He
seeks damages.
Screening
Because plaintiff is a prisoner, the court must screen his
pleadings and must dismiss any part that is frivolous, fails to
state a claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief. 28 U.S.C.
§1915A(a)-(b).
In addition, because plaintiff proceeds pro se, the court must
liberally construe the pleadings. Erickson v. Pardus, 551 U.S. 89,
94

(2007).

All

well-pleaded

allegations

in

the

complaint

are

accepted as true. Anderson v. Blake, 469 F.3d 910, 913 (10th Cir.
2006). However, the complaint must present “more than labels and
conclusions, and a formulaic recitation of the elements of a cause
of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)(citation

omitted).

To

avoid

dismissal,

the

complaint’s

“factual allegations must be enough to raise a right to relief above
the speculative level.” Id.
The court’s review of the record has identified the following
deficiencies.
Motion to proceed in forma pauperis
Pursuant to 28 U.S.C. § 1915(a)(2), a prisoner seeking to bring
a civil action in forma pauperis must submit a certified copy of his
institutional account records for the six months preceding the
filing. Plaintiff has not provided such a financial statement in
support of the motion to proceed in forma pauperis.
Exhaustion
The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a),
requires a prisoner to exhaust available administrative remedies
before

commencing

requirement

“is

a

suit

mandatory,

concerning
and

the

prison
district

conditions.
court

[is]

This
not

authorized to dispense with it.” Beaudry v. Corr. Corp. of Am., 331
F.3d 1164, 1167 n. 5 (10th Cir. 2003).
Plaintiff has submitted exhibits to the court that suggest his
first attempts to exhaust administrative remedies were rejected
because he did not include the relevant reports from staff members,
but these materials do not suggest that the remedy was foreclosed.
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Rather, it appears plaintiff was advised on how to supplement the
grievance request and given time to re-submit the remedy.
The court is mindful that “‘a district court cannot dismiss the
complaint without first giving the inmate an opportunity to address
the issue’ unless the complaint conclusively shows a failure to
exhaust.” Markovich v. Correct Care Solutions, 406 Fed. Appx. 264,
265 (10th Cir. 2010)(quoting Aquilar-Avellaveda v. Terrell, 478 /f.3d
1223, 1225 (10th Cir. 2007)). Accordingly, the court will direct
plaintiff to supplement the record with a statement of whether he
has pursued administrative remedies following the rejection of his
initial attempts.
Personal participation
Under Bivens, a plaintiff may assert claims against government
officials in their individual capacities. See Farmer v. Perrill, 275
F.3d 958, 963 (10th Cir. 2001). To state a claim, plaintiff must
allege personal participation by each individual defendant. Steele
v. Federal Bureau of Prisons, 355 F.3d 1204, 1214 (10th Cir. 2003).
Because

plaintiff’s

complaint

fails

to

identify

such

personal

participation, he must prepare an amended complaint that explains
the specific acts or omissions by each defendant.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff is granted to
and including July 6, 2012, to (1) submit a financial statement in
support of the motion for leave to proceed in forma pauperis; (2)
supplement

the

record

with

a

statement

of

his

pursuit

of

administrative remedies following the rejection of his earlier
attempts; and (3) submit an amended complaint explaining how each
3

individual

defendant

personally

participated

in

the

alleged

violations of his protected rights. The failure to file a timely
response

may

result

in

the

dismissal

of

this

matter

without

prejudice and without additional prior notice.
Copies of this order shall be transmitted to the parties.
IT IS SO ORDERED.
DATED:

This 5th day of June, 2012, at Topeka, Kansas.

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

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