Collier (ID 47548) v. Bryan et al

Filing 9

ORDER ENTERED: Plaintiff is granted twenty (20) days to show cause why the complaint should not be summarily dismissed. Plaintiff's motions 2 , 3 & 4 are denied without prejudice. Signed by Senior District Judge Sam A. Crow on 7/5/2012. (Mailed to pro se party Jeffrey S. Collier by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JEFFREY S. COLLIER,
Plaintiff,
v.

CASE NO. 12-3102-SAC

OFFICER BRYAN, et al.,
Defendants.

O R D E R
This matter is before the court on a pro se complaint seeking
relief under 42 U.S.C. § 1983, submitted by a prisoner incarcerated
in a Kansas correctional facility.
Notwithstanding plaintiff’s payment of the full district court
filing fee in this matter, 1 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 a defendant immune from such relief.
and (b).

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

See Plunk v. Givens, 234 F.3d 1128, 1129 (10th Cir. 2000)(§

1915A applies to all prison litigants, without regard to their fee
status, who bring civil suits against a governmental entity, officer,
or employee).
Plaintiff’s

pro

se

complaint

must

be

given

a

liberal

construction, Haines v. Kerner, 404 U.S. 519, 520 (1972), but even
1 Plaintiff’s litigation history subjects him to the “3-strike” bar in 28 U.S.C.
§ 1915(g), which bars him from proceeding in forma pauperis absent a showing he is
subject to “imminent danger of serious physical injury.”

under

this

standard

Aconclusory

allegations

without

supporting

factual averments are insufficient to state a claim upon which relief
can be based.@

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).

Plaintiff bears the burden of alleging Aenough facts to state a claim
to relief that is plausible on its face.@
Twombly, 550 U.S. 544, 570 (2007).

Bell Atlantic Corp. v.

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 instant complaint, plaintiff alleges his constitutional
rights were violated in a prison disciplinary action in which
plaintiff was found guilty of disobeying an order to get off the grass.
Plaintiff insists the grass was not a restricted area, contends the
officer filed the disciplinary charge simply to harass plaintiff, and
argues the disciplinary action violated his constitutional rights to
due process and equal protection.

The defendants named in the

complaint include the officer who wrote the disciplinary report, the
Unit Team Manager who approved that report, and various prison
officials who were involved in or upheld the disciplinary action.
The Supreme Court has held that where a disciplinary action does
not “work a major disruption in [a prisoner's] environment” or
“inevitably affect the duration of his sentence,” the prisoner has
not suffered an atypical, significant hardship triggering due process

protections.

Sandin v. Conner, 515 U.S. 472, 486–87 (1995).

Because

it appears from the disciplinary documentation provided by plaintiff
that the sanction in his disciplinary action involved no actual loss
of earned good time credits, and instead was limited to restricted
privileges for 30 days and a $5 fine, the complaint presents no
actionable claim under the due process clause.
Although plaintiff simply states elsewhere in his complaint that
his disciplinary conviction “took good time credits,” even assuming
the loss of already earned good time credits it appears on the face
of the pleading that plaintiff was afforded sufficient process to
satisfy the Due Process clause.

See Superintendent v. Hill, 472

U.S. 445, 454 (1985) (An inmate receives due process in conjunction
with an institutional disciplinary proceeding if he is given (1)
advance written notice of the disciplinary charge, (2) an opportunity,
when consistent with the institutional safety and correctional goals,
to present witnesses and documentary evidence, and (3) a written
statement by the factfinder of the evidence relied on and the reasons
for any disciplinary action.).
Nor does the complaint present an actionable claim under the
Equal

Protection

clause.

Plaintiff

essentially

contends

the

charging officer singled plaintiff out by filing a disciplinary report
lacking any legal merit.

Plaintiff’s conviction by an independent

tribunal on that disciplinary report, however, clearly undermines
this claim.

See also Gwinn v. Awmiller, 354 F.3d 1211, 1220 (10th

Cir.2004)(honesty

and

integrity

of

a

disciplinary

tribunal

is

presumed absent “some substantial countervailing reason to conclude
that a decisionmaker is actually biased with respect to factual issues

being adjudicated")(quotation marks and citation omitted).

And

plaintiff fails to allege any facts suggesting that he is a member
of a suspect classification, that he was treated differently from
other similarly-situated prisoners, or that defendants' acts did not
serve a legitimate penological purpose, as is essential to state a
claim under the Equal Protection Clause of the Fourteenth Amendment.
See

generally

Riddle

v.

Mondragon,

83

F.3d

1197,

1207

(10th

Cir.1996)(essential elements of equal protection claim).
Accordingly, taking all well-pleaded facts in the complaint as
true, the court finds plaintiff fails to present a plausible right
to relief under the due process or equal protection clauses.
Notice and Show Cause Order to Plaintiff
Plaintiff is thereby directed to show cause within twenty (20)
days why the complaint should not be summarily dismissed as stating
no claim for relief.

28 U.S.C. § 1915A(b).

The failure to file a

timely response may result in the complaint being dismissed without
further prior notice.
Plaintiff’s motion for appointment of counsel, motion for
preliminary injunction, and motion for “structural injunction” are
denied without prejudice to plaintiff renewing any of these motions
if this action is not summarily dismissed for the reasons stated by
the court.
IT IS THEREFORE ORDERED that plaintiff is granted twenty (20)
days to show cause why the complaint should not be summarily dismissed
pursuant to 28 U.S.C. § 1915A as stating no claim for relief.
IT IS FURTHER ORDERED that plaintiff’s motions (Docs. 2, 3, and

4) are denied without prejudice.
IT IS SO ORDERED.
DATED:

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

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