Williams v. Armstrong et al
MEMORANDUM AND ORDER ENTERED: Plaintiff's motions 2 & 5 for leave to proceed in forma pauperis are granted. Plaintiff's motion 4 to appoint counsel is denied. Plaintiff is granted to and including March 26, 2013, to supplement the record. The failure to file a timely response may result in the dismisal of this matter for failure to state a claim upon which relief may be granted. Signed by Senior District Judge Sam A. Crow on 3/5/2013. (Mailed to pro se party Abram Sadean Williams by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ABRAM SADEAN WILLIAMS,
CASE NO. 12-3136-SAC
GREG ARMSTRONG and
MEMORANDUM AND ORDER
This matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff, a prisoner held at the Reno County Jail, Hutchinson,
Kansas, proceeds pro se and seeks leave to proceed in forma pauperis.
The motion to proceed in forma pauperis
This motion is governed by 28 U.S.C. § 1915. Under the Prison
Litigation Reform Act (PLRA), a prisoner proceeding in forma pauperis
is required to submit an initial partial filing fee calculated upon
the prisoner’s financial records for the six-month period preceding
the filing. 28 U.S.C. § 1915(b)(1). Thereafter, the agency having
custody of the prisoner must submit installment payments calculated
upon the prisoner’s monthly income. § 1915(b)(2). See Purkey v. Green,
28 Fed.Appx. 736, 746 (10th Cir. 2001)(“Section 1915(b) does not waive
the filing fee, … nor does it condition payment of the filing fee on
success on the merits… Notwithstanding the district court’s dismissal
of plaintiff’s action, [a prisoner] is still required to pay the full
filing fee to the district court.”)
However, a prisoner will not be prohibited from bringing a civil
action or appeal solely for the reason that the prisoner lacks the
funds to pay an initial partial filing fee. § 1915(b)(4).
The court has reviewed the financial records supplied by the
plaintiff and finds he lacks the resources to pay an initial partial
filing fee. Accordingly, he will be granted leave to proceed in forma
pauperis, but because he a prisoner, he must pay the full filing fee
in monthly installments to be determined upon his monthly income.
The motion to appoint counsel
A party in a civil action has no constitutional right to the
appointment of counsel. Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir.
1989). Under the in forma pauperis statute, a court “may request an
attorney to represent any person unable to afford counsel.” 28 U.S.C.
§ 1915(e). The appointment of counsel is a matter within the discretion
of the court, and the court should consider factors including the
merits of the matter, the complexity of the factual and legal issues
presented, and the movant’s ability to present the claims. Rucks v.
Boergermann, 57 F.3d 978, 979 (10th Cir. 1995).
The court has considered the complaint and finds no basis to
appoint counsel at the present time. Plaintiff is able to explain the
legal and factual bases for his claims, and the issues presented do
not appear to be particularly complex. Accordingly, the court will
deny the request for appointed counsel without prejudice.
A federal court must conduct a preliminary screening review of
any case in which a prisoner seeks relief from a governmental entity
or an officer or employee of such an entity. See 28 U.S.C. § 1915A(a).
The court must dismiss any part of the complaint that is frivolous,
malicious, fails to state a claim for relief, or that seeks monetary
damages against a defendant who is immune from that relief. § 1915A(b).
To avoid such a dismissal for failure to state a claim for relief,
the complaint must present sufficient facts to “raise a right to relief
above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). Under Twombly, the complaint must present “enough
facts to state a claim to relief that is plausible on its face.” Id.
at 570. The court accepts the well-pleaded allegations in a complaint
as true and construes them in the light most favorable to the
plaintiff. Id. at 555.
However, the court should not “supply
additional factual allegations to round out a plaintiff’s complaint
or construct a legal theory on plaintiff’s behalf.” Whitney v. New
Mexico, 113 F.3d 1170, 1173-74(10th Cir. 1997)(citing Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991).
Finally, the court recognizes that a pro se litigant must be
extended certain allowances. First, the pleadings of a pro se litigant
must be given a liberal construction. See Erickson v. Pardus, 550 U.S.
89, 94 (2007). In addition, the dismissal of a pro se litigant’s
complaint for failure to state a claim is proper “only where it is
patently obvious that the plaintiff could not prevail on the facts
alleged, and allowing [him] an opportunity to amend [his] complaint
would be futile.” Whitney, 113 F.3d at 1173 (citations omitted). See
also Hall, 935 F.2d at 1110 n. 3 (“[P]ro se litigants are to be given
reasonable opportunity to remedy the defects in their pleadings.”)
Plaintiff names two defendants, Barton County Sheriff Greg
Armstrong, and Sergeant Curtis Moose of the Barton County Sheriff’s
The complaint alleges that plaintiff believes and knows that
Sheriff Armstrong knew what was occurring in the jail but took no
action (Doc. 1, p. 1), and that defendant Moose used a taser against
him on one occasion.
Personal participation is an essential allegation in an action
filed under § 1983. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th
A defendant’s supervisory status does not establish
liability under § 1983. Duffield v. Jackson, 545 F.3d 1234, 1239 (10th
Cir. 2008). Rather, when a plaintiff asserts a claim against a
promulgated, created, implemented or possessed responsibility for the
continued operation of a policy that (2) caused the complained of
constitutional harm, and (3) acted with the state of mind required
to establish the alleged constitutional deprivation.” Dodds v.
Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010).
The court finds at this stage that plaintiff has failed to
adequately plead a cause of action against defendant Armstrong or a
claim of any participation by defendant Moose on any cognizable claim
except the use of a taser on one occasion. To prevail on his claims
against these defendants, plaintiff must provide factual support for
his claim against defendant Armstrong and must explain how defendant
Moose personally participated in the claims that survive the court’s
initial review, as set forth below.
Plaintiff alleges that his constitutional rights were violated
during his incarceration in the Barton County Jail. In Count 1, he
asserts he was subjected to cruel and unusual punishment when he was
tasered on two occasions, that he was not given an E.K.G. or taken
to the hospital on the second occasion, and that he was arrested
without a warrant. In Count 2, he claims that defendant Moose allowed
other inmates to use racial slurs around and toward him. In Count 3,
he alleges his rights were violated when he was arrested upon his
release from the Kansas Department of Corrections and transported to
Great Bend, Kansas, without a signed warrant. In Count 4, he alleges
a lack of medical attention because the Barton County Jail failed to
provide medical staff to evaluate his heart rate after the taser was
used on him. In Count 5, he alleges his legal mail was opened on one
or more occasions. In Count 6, he claims he was refused his special
diet on two occasions. He seeks an apology, damages, and therapy.
Use of taser
Plaintiff appears to assert both that the use of a taser against
him violated the Eighth Amendment and that the failure to provide
It is unclear whether plaintiff was in pretrial detention or
whether he had been convicted of a crime at the time of the events
in question. However, both a pretrial detainee and a prisoner are
constitutionally entitled to
humane conditions of confinement,
whether under the Eighth Amendment’s prohibition of cruel and unusual
punishment, which protects a convicted prisoner, or under the
Fourteenth Amendment’s guarantee of due process, Martinez v. Beggs,
563 F.3d 1082, 1088 (10th Cir. 2009); and the Tenth Circuit has held
that the Eighth Amendment deliberate indifference standard is the
regardless of whether the plaintiff is a convicted prisoner or a
pretrial detainee. See Olsen v. Layton Hills Mall, 312 F.3d 1304, 1315
(10th Cir. 2002).
The use of a taser is not per se unconstitutional when it is done
to control an uncooperative prisoner. Hunter v. Young, 238 Fed.Appx.
constitutional violation arising from the use of a taser, plaintiff
must show that a defendant used the taser against him with a malicious
or sadistic intent to harm him, rather than in a good-faith effort
to maintain or restore discipline. See Hudson v. McMillian, 503 U.S.
1, 7 (1992).
Plaintiff’s bare allegation that a taser was used on him on two
separate occasions is not sufficient to state a claim; however, the
court will allow him an opportunity to amend the complaint to provide
additional factual allegations.
Plaintiff also claims his rights were violated by the failure
to provide him with medical attention after the second use of a taser
against him. To establish a constitutional violation based upon a lack
of medical care, plaintiff must allege the defendants acted with
deliberate indifference to a serious medical need. Estelle v. Gamble,
429 U.S. 97, 104-05 (1976).
Again, plaintiff makes only a conclusory claim that does not
condition. He must provide specific factual allegations in support
of this claim.
Claim of verbal abuse
Plaintiff next claims that he was subjected to verbal abuse by
other prisoners. However, “acts or omissions resulting in an inmate
being subjected to nothing more than threats and verbal taunts do not
violate the Eighth Amendment.” McBride v. Deer, 240 F.ed 1287, 1291
n. 3 (10th Cir. 2001). This claim must be dismissed.
Plaintiff claims that he was improperly transferred from the
Department of Corrections to the Barton County Jail in Great Bend,
Kansas, because there was not a signed warrant for his arrest. However,
participated in it, or the reason for the transfer. Plaintiff will
be directed to supply additional factual support for the claim.
Claim of opened legal mail
Plaintiff claims his legal mail was opened on one or more
occasions and that this was explained to him as an error. Liability
under § 1983 requires a deliberate, not a negligent, deprivation of
protected rights by a defendant acting under color of state law.
Woodward v. City of Worland, 977 F.2d 1392, 1399 (10th Cir. 1992)(citing
City of Canton v. Harris, 489 U.S. 378, 389 (1989)).
the courts have rejected claims that an error by prison staff that
results in the inadvertent opening of a prisoner’s legal mail does
not state a claim for relief. See, e.g., Smith v. Maschner, 899 F.2d
940, 944 (10th Cir. 1990)(“Defendants admitted to opening one piece
of … legal mail by accident. Such an isolated incident, without any
[plaintiff’s] right to counsel or to access to the courts, does not
give rise to a constitutional violation.”). This claim also will be
Access to special diet
Plaintiff claims his rights were violated by the denial of a
special, soft and low sodium diet on two occasions. The complaint
states that on one occasion, he was provided the diet and it was later
taken away, and that on a different occasion he was denied the
requested diet. (Doc. 1, p. 4.)
To allege an Eighth Amendment violation, plaintiff must show both
sufficiently grave to implicate his constitutional rights, and a
subjective component showing that the defendant knew the plaintiff
faced substantial danger and failed to take reasonable measures to
abate the risk. Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir.
The brief denials described by plaintiff fail to state a claim
for relief. See, e.g., Cody v. CBM Corr. Food Servs. 250 F. App’s 763,
765 (8th Cir. 2007)(“[A] prisoner must show that the food he was served
was nutritionally inadequate or prepared in a manner presenting an
immediate danger to his health, or that his health suffered as a result
of the food.”)(internal quotations omitted); and Tafari v. Weinstock,
2010 WL 3240424, *7 (W.D.N.Y. Aug. 27, 2010)(“[T]o establish a valid
claim that the denial of … a medically prescribed diet constitutes
an Eighth Amendment violation, one must establish that there was a
sufficiently serious condition that resulted from the food not being
received.”). Plaintiff’s claim concerning the diet he was provided
does not state a claim for relief.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motions for
leave to proceed in forma pauperis (Docs. 2 and 5) are granted.
Plaintiff is reminded that he is obligated to pay the filing fee of
$350.00, and a copy of this order will be transmitted to the Finance
Office of the facility where he is incarcerated.
IT IS FURTHER ORDERED plaintiff’s motion to appoint counsel (Doc.
4) is denied.
IT IS FURTHER ORDERED plaintiff is granted to and including March
26, 2013, to supplement the record with specific factual allegations
in support of his claims that he was subjected to excessive force and
provided inadequate medical care and that he was transferred upon an
improper warrant. The failure to file a timely response may result
in the dismissal of this matter for failure to state a claim upon which
relief may be granted.
Copies of this order shall be transmitted to the plaintiff and
to the Finance Office of the facility where plaintiff is incarcerated.
IT IS SO ORDERED.
This 5th day of March, 2013, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
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