Jones v. Kansas, State of et al

Filing 43

MEMORANDUM AND ORDER ENTERED: Plaintiff is assessed an initial partial filing fee of $19.50 and this amount is immediately due and owing to the clerk of the court. Plaintiff's motions 2 & 12 to proceed without prepayment of fees are g ranted and plaintiff is assessed the remainder of the $350.00 filing fee. Plaintiff's remaining pending motions 9 , 11 , 14 , 15 , 19 , 20 , 21 , 22 , 25 , 31 , 33 , 34 , 35 , 37 and 42 are denied. This action is dismissed without prejudice for failure to state a claim and as frivolous. Signed by Senior District Judge Sam A. Crow on 8/21/2013. (Mailed to pro se party Joseph Lee Jones by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JOSEPH LEE JONES,
Plaintiff,
v.

CASE NO.

12-3229-SAC

STATE OF KANSAS,
et al.,
Defendants.
MEMORANDUM AND ORDER
The court previously screened the original complaint filed
herein and ordered plaintiff to cure the deficiencies set forth
in

its

screening

order

as

well

as

provide

the

financial

information required by federal law to support his motion to
proceed without prepayment of fees.

The matter is now before

the court for consideration of plaintiff’s compliance with the
screening order, screening of plaintiff’s Amended Complaint, and
determination
considered

of

all

plaintiff’s

materials

numerous

submitted

by

motions.

Mr.

Jones,

Having
the

court

concludes that the Amended Complaint fails to state a federal
constitutional

claim

because

plaintiff’s

own

allegations

and

exhibits show that the letters in question were not “legal mail”
and

fail

to

show

that

he

was

denied

access

to

the

courts.

Furthermore, plaintiff again fails to name proper defendants.
1

Accordingly, this action is dismissed for failure to state a
claim and as frivolous pursuant to 28 U.S.C. § 1915A(a) and (b)
and 28 U.S.C. § 1915(e)(2)(B).

I.

FEES ASSESSED
28 U.S.C.

§ 1915(b)(1)

requires the court to assess an

initial partial filing fee of twenty percent of the greater of
the average monthly deposits or average monthly balance in the
prisoner’s account for the six months immediately preceding the
date of the filing of a civil action.
records

of

plaintiff’s

monthly

deposit

to

Having examined the

account,

the

court

account

was

$99.00.

his

monthly balances is not provided.

finds

the

average

Information

on

The court therefore assesses

an initial partial fee of $19.50, which is twenty percent of the
average

monthly

deposit

rounded

to

the

lower

half

dollar.

Plaintiff must immediately submit this initial partial fee to
the court.

Plaintiff’s motions to proceed without prepayment of

the entire fee are granted, and he is assessed the remainder of
the

$350.00

remainder

in

filing

fee.

installments

He

is

thus

automatically

allowed

deducted

account pursuant to 28 U.S.C. § 1915(b)(2).

II.

PLAINTIFF’S COMPLIANCE WITH SCREENING ORDER
2

to

pay

that

from

his

Mr. Jones complied with part of the court’s screening order
by

providing

requisite

financial

information

(Doc.

12).

In

order to have properly responded to the remainder of that order,
he

should

addressed

have
each

filed

deficiency

Amended Complaint.
two

months

papers,

Complaint.1

of

a

found

single
by

response

the

court

in

or

which

a

he

complete

Instead, during the response period and for

thereafter

none

either

Mr.

which

Jones

was

a

filed
proper

28

motions

response

and
or

other

Amended

Finally, three months after the court’s screening

order, plaintiff filed his First Amended Complaint (Doc. 40).

III.

SCREENING FIRST AMENDED COMPLAINT
Before

plaintiff

filed

his

Amended

Complaint,

he

was

informed in the screening order that:
An
amended
complaint
completely
supersedes
the
original complaint.
Consequently, any claims in the
original complaint that are not included in the
Amended Complaint are no longer before the court.
The legal

standards

to be

applied during screening

were set

forth in the court’s prior order.

A.

Allegations and Claims

In the caption of his First Amended Complaint, plaintiff
1

Plaintiff recently stated that he filed “every type of motion or
affidavit” he had “heard of” and hoped this was “sufficient to prove that his
civil right has been violated” (Doc. 18).”

3

names two defendants: “Shawnee Co. Jail” and “Shawnee Co. Court
Clerk” (name unknown).

Elsewhere, he refers to Richard Eckhart,

Shawnee County Counselor, as a third defendant.2

As the factual

basis for Count I in his Amended Complaint, plaintiff alleges
that

defendant

unnamed

Clerk

of

the

Shawnee

County

District

Court (hereinafter Clerk) failed to file his petitions including
a complaint regarding the seizure of his four out-going letters.
In

the

factual

background

section,

he

alleges

that

from

September to December 2012, he tried to file “several writs of
habeas corpus 60-1501-07 at Shawnee Courthouse,” but was told he
had

to

pay

the

filing

fee

and

“previous filing restriction.”3

the

Clerk

once

responded,

The Clerk did not inform him how

to resolve the matter and would never respond to his requests.
Plaintiff asserts denial of his “guaranteed right to the writ,”
access

to

the

courts,

and

his

First

Amendment

“right

to

communicate with outside world.”
Counts II and III in the Amended Complaint are based upon
plaintiff’s allegations that four letters he attempted to mail
as

“legal

mail”

were

improperly

seized

and

withheld.

2

Rule 10 of the Federal Rules of Civil Procedure requires a plaintiff to
name all parties in the caption. The court liberally construes the complaint
as naming a third defendant, even though Eckhart is not named in the caption.
3

Mr. Jones alleges that there was no fee for state habeas petitions, but
restrictions imposed upon him required that he pay a $154.00 fee to file
another “consumer protection lawsuit.”

4

Plaintiff’s own pleadings and exhibits indicate the following
factual background for this claim.

In September or October

2012, plaintiff marked “legal mail” on the envelopes of four
letters and attempted to mail them out of the Shawnee County
Jail.

These four letters were addressed to four businesses:

Kansas Fiber Optic Cable, LCD Class, Equip Bankruptcy Solutions,
and Gilardi and Company (a class action management company).
Plaintiff has described these letters as concerning his “civil
affairs.”

Plaintiff alleges that K.A.R. 44-12-601 defines legal

mail for Kansas prisons, that the jail “crafts its rules after
the prisons,” and that in the jail’s inmate rule book legal mail
is defined as “mail to court, officials, or lawyer.”
of

the

Inmate

Corrections

Handbook

“legal

of

mail”

the

was

Shawnee
defined

County
as

On page 14

Department

“mail

sent

to

of
or

received from an attorney, judge, or other federal, state, or
local government official.”
Mail Assistant Ms. Sipp returned the four letters to Mr.
Jones with directions to remove the words “legal mail.”

Sipp

and Angie Ross directed Mr. Jones not to write the words “legal
mail”

on

these

letters

governments, or law firms.

because

they

were

not

to

courts,

Thereafter, Mr. Jones wrapped the

letters with “legal mail” still marked upon the envelopes in a
piece of paper on which he wrote “legal mail is special” and “it
5

is not my fault that its (sic) baffling,” and again placed them
in the mail box.
plaintiff

based

confiscated

upon

and

proceedings.

Ms. Sipp wrote a disciplinary report against
this

held

incident.

as

evidence

The

four

in

the

letters

were

disciplinary

Officer Chuck noted on the disciplinary hearing

record that plaintiff requested his letters back.

Plaintiff was

informed that after the hearing the letters were placed in his
property.

He

requested them

from the property officer, who

apparently refused his request.

Plaintiff was advised in a

“Response” from the Director of the Shawnee County Department of
Corrections that his “simply placing the words ‘Legal Mail’ on
letters” did not make them fall within the definition for legal
mail.
Based

on

these

allegations,

plaintiff

asserts

that

his

First Amendment rights to court access, to “communicate with
outside world,” and “lawyer-client privilege” were violated.

He

seeks millions of dollars in punitive damages “because they all
know

(he

is)

right

yet

don’t

fix

it.”

He

also

seeks

“compensatory damages” for his “losses of being able to opt-out
of class action lawsuit and sue in the state for civil penalties
for consumer protection violations” allegedly resulting from his
letters

being

“seized

past

the

opt-out

or

due

date.”

In

addition, he seeks ten million dollars “for (his) mail,” ten
6

“for habeas writs,” and one million for pain and suffering.

B.

Legal Standards

Prison inmates have a constitutional right to “meaningful
access to the courts.”
(1977).
the

Bounds v. Smith, 430 U.S. 817, 823

“[T]he right of access to the courts is an aspect of

First

redress.”

Amendment

right

to

petition

the

Government

for

Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S.

731, 741 (1983); see also Al–Amin v. Smith, 511 F.3d 1317, 1331
(11th

Cir.),

cert.

denied,

555

U.S.

McDonnell, 418 U.S. 539, 576 (1974).

820

(2008);

Wolff

v.

The Supreme Court has held

that “in order to assert a claim arising from the denial of
meaningful access to the courts, an inmate must first establish
an actual injury.”

Lewis v. Casey, 518 U.S. 343, 349, 351-53

(1996)(an inmate asserting denial of access to the courts must
satisfy the standing requirement of “actual injury.”); Simkins
v. Bruce, 406 F.3d 1239, 1243–44 (10th Cir. 2005);

Smith v.

Maschner, 899 F.2d 940, 944 (10th Cir. 1990)(An inmate alleging
interference

with

showing

a

that

legal

“distinct

defendants’ conduct.).
requirement,
frustrated

or

access

the

and

allege

palpable”

specific

injury

resulted

facts
from

“In order to satisfy the actual injury

plaintiff

impeded

must

the

must

show

plaintiff’s
7

that

prison

ability

to

officials
file

non-

frivolous direct appeals from his conviction, a habeas corpus
petition

or

vindicate

a

basic

civil

rights

claim

constitutional

pursuant

rights.’”

to

Redmon

§
v.

1983

‘to

Zavaras,

2011 WL 2728466 (D.Colo. June 16, 2011)(citing Lewis, 518 U.S.
at 351, 354–55 (internal quotation marks and citation omitted);
Penrod

v.

Zavaras,

94

F.3d

1399,

1403

(10th

Cir.

1996)(“an

inmate must satisfy the standing requirement of ‘actual injury’
by showing” that defendant “hindered the prisoner’s efforts to
pursue a nonfrivolous claim”); Simkins, 406 F.3d at 1243;4 see
also

Peterson

v.

Shanks,

149

F.3d

1140,

1145

(10th

Cir.

1998)(“To present a viable claim for denial of access to courts
. . . an inmate must allege and prove prejudice arising from
Defendants’ actions.”).
In

addition,

“prisoners

retain

the

right

to

send

and

receive mail, see Thornburgh v. Abbott, 490 U.S. 401 (1989), and
repeated violations of a prison mail policy may implicate First
Amendment concerns if the prison employee acts in an ‘arbitrary’
or ‘capricious’ fashion.”

Cotner v. Knight, 61 F.3d 915, *5

4

For example, in Simkins, 406 F.3d at 1243, the prison withheld an
inmate’s legal mail including a summary judgment motion filed in a civil
action, and the delay adversely affected his civil action. The Tenth Circuit
found injury, concluding that “the prejudice from the interference with
plaintiff’s legal mail is directly and inextricably tied to the adverse
disposition of his underlying case and the loss of his right to appeal from
that disposition.” Id. at 1244.

8

(10th Cir. 1995)(Table)5(citing Lavado v. Keohane, 992 F.2d 601,
609-610 (6th Cir. 1993)).

C.

Complaint Fails to State Claim Regarding Mail

The court finds based upon plaintiff’s own allegations and
exhibits that the letters in question were not “legal mail”.
Plaintiff’s four letters were to businesses.

They were not to

his retained or appointed attorney, a court, or a government
official.

Consequently, they did not fall within the handbook’s

definition of “legal mail” and were improperly marked as such by
Mr. Jones.6

This court informed plaintiff in its screening order

that his belief that these letters were “legal in nature” was
not enough to state a claim.

Plaintiff mainly continues to

express his disagreement with prison officials and the court and
his opinion that his four outgoing letters were legal mail.

The

few additional facts alleged in the Amended Complaint include
that the four letters were not considered legal because “they”
5

Unpublished opinions are cited herein for persuasive reasoning only
rather than as binding precedent.
See Fed.R.App.P. 32.1 and 10th Cir.R.
32.1.
6

In one of his many motions (Doc. 19), plaintiff argues that the jail
uses the term “legal mail” as an indicator that free postage is required, and
was not obliged to provide free postage other than on legal mail concerning
current charges or conditions of confinement. Cf. Carper v. DeLand, 54 F.3d
613, 616 (10th Cir. 1995)(“Other than habeas corpus or civil rights actions
regarding current confinement, a state has no affirmative constitutional
obligation to assist inmates in general civil matters.”)(citing Nordgren v.
Milliken, 762 F.2d 851, 855 (10th Cir.), cert. denied, 474 U.S. 1032 (1985)).
Thus, free postage was not provided for letters to businesses.

9

refused to open them and view the contents.

However, Mr. Jones

has never adequately described the contents of his letters and
thus has not shown that the contents fell within the definition
of

legal

mail.7

Accepting

that

plaintiff’s

letters

were

determined to be non-legal based upon the addressees rather than
the contents, the court finds that this determination is not
shown to have been arbitrary, capricious, or unconstitutional in
any sense.
Plaintiff’s
contrary,

that

own

allegations

under

the

letters was reasonable.

and

exhibits

to

the

confiscation

circumstances

show

of

his

Plaintiff acknowledges that there was a

“rule against markings on mail” and even that his letters did
not meet the inmate rule book definition of legal mail.
this

knowledge

officials
insisted

to
on

markings.

and

remove

despite
the

re-mailing

having

“legal

his

four

been

mail”

directed

markings,

letters

Despite

with

by
Mr.

the

jail
Jones

improper

His allegation that the pertinent rule “serves no

penological

purpose”

conclusory

statement.

in

his

case

is

As

plaintiff

nothing
has

more

been

than

a

informed,

conclusory allegations are not sufficient to state a

§

1983

Plaintiff’s own allegations indicate that he was attempting to become
involved in advertised product liability or consumer protection lawsuits or
to opt out of such lawsuits so that he could file his own.
It is notable
that the filing restrictions imposed upon Mr. Jones in state court required
that he pay the filing fee if he attempted to file another products liability
lawsuit.
7

10

claim.

Plaintiff has presented no facts or arguments from which

this court might conclude that either the jail’s definition of
“legal mail” or its policy of requiring that letters marked
“legal mail” fit within that definition was unreasonable.8
Plaintiff offers no explanation for his refusal to comply
with the rule and directives so that he could send his letters
and meet deadlines.

Consequently, the court finds that access

was available to Mr. Jones to communicate with the businesses
regarding class action lawsuits had he simply chosen to adhere
to jail policy and directives.
In addition, Mr. Jones again fails to show the necessary
element of a denial of court access claim: that he suffered
actual

injury

to

a

pending

result of the mail handling.
adequately

described

the

non-frivolous

court

action

as

a

As noted, Mr. Jones has never

contents

of

any

of

his

letters

or

explained how each impacted a non-frivolous lawsuit filed by
him.

Nor has he adequately identified how any such lawsuit was

actually prejudiced as a result of these particular letters not
being

mailed.

suffice.

Conclusory

allegations

of

injury

will

not

Wardell v. Duncan, 470 F.3d 954, 959 (10th Cir. 2006);

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); Johnson,
452 F.3d at 974.
8

Preventing
unconstitutional.

Even if plaintiff had described an actual

inmates

from

misusing

11

free

postage

is

hardly

injury, he would have to explain how defendants were the cause
rather

than

his

insistence

upon

mailing

his

letters

with

improper markings.
Additional

legal

arguments

urged

Amended Complaint are not persuasive.

by

plaintiff

in

his

His assertion that his

First Amendment right to communicate with the outside world was
violated is nothing but a conclusory statement and is refuted by
the fact that had Mr. Jones removed the invalid “legal mail”
markings from his letters they could have been sent.9
assertion

that

the

attorney/client

privilege

likewise supported by no facts whatsoever.
explain how

was

His bald

violated

is

Plaintiff does not

the withholding of these letters on this single

occasion interfered with his right to consult with his attorney
in

a

criminal

or

other

non-frivolous

ineffective assistance of his counsel.

case

or

resulted

in

Plaintiff also argues

that “privileged mail is entitled to the same protections as
legal mail” and baldly states that his letters should have been
sent as privileged.

However, he does not show that his four

letters to businesses met the definition of privileged mail or
that he presented them as anything other than “legal mail.”
In sum, the court finds that no viable constitutional claim
9

In his Amended Complaint, plaintiff speculates that had he placed
postage stamps on his letters they would have been mailed without
“criticism,” and “the jail” is concerned only with having to provide free
postage.

12

is alleged because plaintiff fails to show a factual or legal
basis for treating his four letters as “legal mail,” makes no
showing that actual injury resulted from the confiscation of
these particular letters, and could have mailed his letters and
thus met his deadlines and communicated freely had he simply
removed the improper markings.

D.

Failure to State Claim Against Defendant Court Clerk

Plaintiff’s
constitutional

claim

rights

by

that

the

denying

him

Clerk
access

violated
to

the

his

Shawnee

County District Court is not supported by sufficient facts to
state a federal constitutional claim.

Plaintiff alleges that

defendant Clerk failed to file several state habeas petitions
including his “second complaint” regarding the jail’s seizure of
his letters.

However, at the same time Mr. Jones admits that he

was subject to filing restrictions imposed by a state judge and
that those restrictions were referenced by the Clerk at least
once.

Mr. Jones has alleged no facts indicating that defendant

Clerk

acted

other

restrictions.
restrictions

than

in

accord

with

relevant

judicial

Even if the Clerk mistakenly applied judicial
to

some

of

plaintiff’s

proffered

petitions

or

violated state law, neither is grounds for relief under § 1983.
In any event, plaintiff’s allegations indicate that this matter
13

was resolved with the help of another state district judge,10 and
that Mr. Jones was allowed to file his state action.11
regard

to

his

state

“habeas

petitions,”

plaintiff

With

has

not

described their contents to show that they were non-frivolous
cases.

He has thus failed to allege necessary facts to show

actual injury.

E.

Failure to Name Proper Defendants and Allege Personal

Participation
Even

if

Mr.

Jones

had

alleged

sufficient

facts

in

his

Amended Complaint to state a constitutional claim, this action

10

Plaintiff exhibits a letter to him from Shawnee County District Court
in which Judge Hendricks stated that he had considered the filing
restrictions imposed upon Mr. Jones by Judge Andrews, “which prevented you
from filing suit in Shawnee County by way of poverty affidavit,” and removed
them. Plaintiff was further advised that Judge Hendricks “will be reviewing
all your filings to insure that you are not once again abusing the system as
previously indicated by Judge Andrews.” Doc. 37, Attach 5.
11

On February 1, 2013, plaintiff filed a case that he describes as
identical to this one in Shawnee County District Court.
He exhibits
pleadings that he filed in his state court case.
Public records of the
docket show the following entry dated April 12, 2013:
Journal Entry on Motions to Dismiss and Order of Dismissal was
issued by Senior Judge Sanders. The Court finds and Orders that
Plaintiff’s Petition for Violation of Civil Rights along with all
other claims of relief, including request for case management
conference, injunctive relief, declaratory judgment, summary
judgment, default judgment, request for lawyer, judgment on
pleadings, and request for interrogatories should be and the same
is hereby dismissed in its entirety. SR Judge Sanders
This shows that plaintiff accessed the state court and suggests another
ground for dismissal of this action.
Under res judicata principles, these
dispositive findings in state court bar relitigation of plaintiff’s identical
claims in this federal court action.

14

would

be

dismissed

defendant.

because

he

again

fails

to

name

a

proper

He was informed in the screening order that the

“Shawnee County Jail” is not a proper defendant in a § 1983
lawsuit

because

a

jail

is

not

a

“person”.

He

alleges

no

additional facts in his First Amended Complaint to establish
that the jail is a proper defendant.
Plaintiff was also informed in the court’s screening order
that he must describe the allegedly unconstitutional acts of
each defendant.
defendant,

but

He names County Counselor Richard Eckhart as a
does

not

describe

Eckhart in the Amended Complaint.

a

single

act

taken

by

His statement that “all the

rules and policies are overseen by the County Counselor”
vague and conclusory.

Mr.

is

It is well-settled that an individual

defendant may not be held liable for money damages in a civil
rights action based solely upon his supervisory capacity.12
The only person whose acts are described in the complaint
is

the

unnamed

Clerk

of

the

Shawnee

County

District

Court.

However, no facts whatsoever are alleged showing this person’s
personal participation in the handling of plaintiff’s mail at
the

jail.

Mr.

Jones

obviously

cannot

recover

millions

of

dollars or any damages from this defendant for acts that he or
she took no part in.

No person who was in a position to have

12

Furthermore, county attorneys are generally immune to suit for money
damages based upon actions taken within their official capacity.

15

actually seized or withheld plaintiff’s mail at the jail is
named as a defendant either in the caption or elsewhere in the
Amended

Complaint.

Plaintiff’s

failure

to

name

a

proper

defendant and show how the named defendant(s) participated in
the seizure of his mail is sufficient cause alone to dismiss his
mail seizure claim.

F.

Failure to State Facts to Support Damages Claims

In

his

Amended

Complaint,

plaintiff is money damages.

the

only

relief

sought

by

42 U.S.C. § 1997e(e) provides that:

[n]o Federal civil action may be brought by a prisoner
confined in a jail, prison, or other correctional
facility, for mental or emotional injury suffered
while in custody without a prior showing of physical
injury.
42

U.S.C.

available,

§

1997e(e).

regardless

“The

of

the

statute
rights

injuries are mental or emotional.”
F.3d

869,

(2002).

876

(10th

Cir.

2001),

limits

asserted,

the
if

remedies
the

only

Searles v. VanBebber, 251
cert.

denied,

536

U.S.

904

Plaintiff does not show that he suffered any physical

injury and, as a result, his requests for damages based on pain
and suffering as well as his claims for compensatory damages are
barred by § 1997e(e).
Likewise,

plaintiff

fails

claim for punitive damages.

to

allege

facts

to

support

a

To obtain punitive damages under §
16

1983,

plaintiff

“‘motivated
reckless

or

by

must
evil

callous

rights of others.’”
Cir.

1992)(quoting

show

motive

that
or

defendants’

intent,

indifference

to

or

the

.

.

conduct
.

was

involve[d]

federally

protected

Jolivet v. Deland, 966 F.2d 573, 577 (10th
Smith

v.

Wade,

561

U.S.

30,

56

(1983)).

Plaintiff alleges no facts to suggest evil motivation.

IV.

PLAINTIFF’S OTHER MOTIONS
As noted, plaintiff filed numerous “motions” following the

court’s screening order.

In these other pleadings, plaintiff

often repeats allegations, claims and arguments, many of which
were already rejected.

For example, he rehashes challenges to

his state criminal proceedings, even though the court dismissed
these claims and explained that habeas corpus claims cannot be
raised in a civil rights complaint.

This unnecessary repetition

does nothing to cure the deficiencies in plaintiff’s claims.
Plaintiff’s “motions” also include many new allegations and
claims.

Mr. Jones was informed in the screening order that he

could only add claims by filing a complete Amended Complaint.
In addition, plaintiff was informed that claims unrelated to his
denial of access claims were not properly joined in this action.
In any event, the court does not consider any of the new claims
improperly raised in plaintiff’s “motions” that were not also
17

set forth in his subsequently-filed First Amended Complaint.
To the extent that plaintiff’s numerous “motions” are his
misguided attempt to respond to the screening order, a court is
not

obliged

to

parse

numerous

improper

filings

and

piece

together a proper response or amendment on plaintiff’s behalf.
Nevertheless, in an effort to liberally construe plaintiff’s pro
se filings, the court considered any properly-raised, relevant
content in ruling upon plaintiff’s claims.
To the extent that any of these other pleadings actually
are motions, they might be denied as moot because this action is
dismissed.
The

However, the court briefly comments upon each.

court

has

considered

and

denies

plaintiff’s

several

motions for preliminary relief (Docs. 9, 11, 14,13 25, and 35).
Plaintiff’s first motion for preliminary relief was denied in
the screening order because Mr. Jones did “not set forth any of
the four factors along with facts in support that might entitle
him to a preliminary injunction.”
are repetitive and

likewise

His five subsequent motions

fail to set forth the

requisite

factors together with underlying facts that would entitle him to
preliminary

relief.14

These

motions

mainly

contain

either

13

Plaintiff’s “Affidavit in support of Motion for Order of Injunctive
Temporary Relief” “amends” his damages “request to ten million dollars” and
repeats complaints regarding his attempts to file state habeas petitions.
14

For example, plaintiff’s Motion for Restraining Order (Doc. 9) contains

18

unnecessary repetition of claims or unrelated claims and are
frivolous, abusive filings.
The court has considered and denies plaintiff’s motion for
appointment of counsel (Doc. 22).

Plaintiff’s first two motions

for counsel were denied in the screening order.

In his third

motion plaintiff alleges he has severe mental illness and was
recently found incompetent by a doctor at Larned State Security
Hospital.

Plaintiff’s

allegations

regarding

his

mental

condition, accepted as true, do not entitle him to assistance of
counsel for litigating the frivolous and improper claims raised
herein.

Mr. Jones complains that he has been unable to find an

attorney to take his case even if he pays, and attributes this
to a “scheme to beat (him) out of his rights.”

However, he

alleges no facts to establish that this court’s denial of his
motion

for

counsel

at

taxpayer

expense

or

rejection

of

his

requests for representation resulted from any improper motive.
Plaintiff’s
Legal

Notice

document

Attached”

entitled

(Doc.

13)

“Affidavit
contains

and

mostly

Exhibit

of

repetitive

no argument or authority showing entitlement to a restraining order and
instead merely repeats his allegations regarding withheld mail. Plaintiff’s
purported Supplement (Doc. 10) to his already-denied Motion for Injunctive
Relief (Doc. 6) contains no facts whatsoever to substantiate his earlier
motion.
Therein, the court is asked “to examine” and change the Kansas
prison system’s indigent limit of $35. In his “Motion for Injunctive Relief,
Request for Restraining Order” (Doc. 11) plaintiff baldly claims judicial and
attorney misconduct in two state criminal cases.
Plaintiff’s motion for
“injunctive temporary relief” (Doc. 14) presents nothing more than his
disagreement with the court’s holding that his letters were not legal mail.

19

allegations.
the

The court considered the added allegations that

confiscation

of

plaintiff’s

letters

caused

him

to

miss

deadlines to decline to participate in advertised class actions
concerning Bayer Aspirin and flat panel screens, which would
have allowed him to object and sue on the state level.

This

document does not cure any deficiencies in the complaint.
Plaintiff’s
deficiencys

“Motion”

(sic)”

subtitled

(Doc.

15)

“Attempt

contains

to

Satisfy

additional

allegations, but is not a complete Amended Complaint.

fact

The court

cannot amend Mr. Jones’ complaint for him from his affidavit as
he

requests.

However,

the

court

considered

the

additional

relevant allegations in this document that his letters concerned
class action lawsuits “seeking civil penalties for violations of
consumer protection law.”

Allegations in this document and Doc.

18 substantiate the court’s holding that plaintiff’s claim that
his letters were “legal mail” is frivolous.

This “motion” seeks

no relief other than additional money damages and is denied.15
The next six documents were filed together by plaintiff and
include three entitled “Affidavit Memorandum” (Docs. 16, 17, 18)

15

Plaintiff’s report in this “motion” that he has received no response,
apparently meaning from the defendants named in his original complaint,
evinces no impropriety.
Service of process has not been ordered in this
case, and no defendant is required to respond to a complaint until he or she
has been properly served.

20

with each referring to one of his three counts.16

The other

three are each entitled Motion for Summary Judgment” (Docs. 19,
20, 21).17
claims

In these documents, plaintiff again rehashes his

of

However,

he

mail

seizure

does

state a claim.

not

and

present

denial

of

additional

state

court

access.

facts

sufficient

to

Nor does he address the reasons previously given

by the court for finding his allegations insufficient.

None of

these filings entitles plaintiff to summary judgment.

Nor does

this set of affidavits and motions amount to a complete, proper
Amended Complaint.
In the next two filings, Affidavit in Support of Damages
and Injunctive Relief (Doc. 23) and “Supplement (apparently to

16

Plaintiff’s allegations in the first Affidavit Memorandum (Doc. 16) are
repetitions of complaints regarding his state criminal cases.
His
allegations in the next (Doc. 17) are more of the same along with repetitive
complaints regarding his attempts to file in state court without paying a fee
and a new claim that he has served his time in one case. His allegations in
his third (Doc. 18) repeat his mail seizure claims.
17

In the first of these motions (Doc. 19), plaintiff rehashes his
arguments that the mail in question was legal, particularly with respect to
Gilardi & Co., which he claims administrates class action law suits. In his
second motion (Doc. 20), plaintiff repeats challenges to his confinement and
state criminal cases, and states that he only seeks money damages. Plaintiff
ignores the court’s advisements in the screening order that he “may not seek
money damages in federal court based upon challenges to his state court
convictions unless and until he has had the state convictions overturned,”
and that “none of (his) habeas corpus claims will be considered in this civil
rights action.”
In his third motion (Doc. 21) plaintiff repeats his claims
regarding his attempts to file state habeas petitions. However, as explained
in the screening order, habeas claims may only be pursued in federal court by
filing a § 2254 petition after having fully exhausted state court remedies.
The rejection of a state petition for failure to pay the fee or even a
mistaken rejection that was later corrected does not amount to exhaustion.
Nor do these facts evince an improper denial of access or plaintiff’s
entitlement to money damages.

21

Doc. 23)”(Doc. 24), plaintiff again improperly attempts to add
to his complaint.
but

both

Injunctive

Neither of these filings has a clear title,

include

“Affidavit

in

Relief.

Plaintiff

Support

mainly

asks

of

Damages”

that

his

and

suit

be

amended to seek one million dollars in punitive damages, which
the court considered.
Plaintiff’s next filing is a “Request for a Restrain Order
and Memorandum Affidavit” (Doc. 25).

This motion was denied

earlier herein, but the court notes plaintiff’s allegation that
on December 1, 2012, he filed a grievance requesting return of
his letters.

This allegation indicates that plaintiff had not

fully exhausted administrative remedies at the time he filed
this action, which is yet another reason for dismissal of his
mail

seizure

claim.

See

42

U.S.C.

1997e(a).

Plaintiff’s

request in this filing to add a new count based on medical fees
is denied.

This pleading is not a complete Amended Complaint,

and it is unlikely that this claim could be properly joined.
Plaintiff’s

next

filing

(Doc.

30)

has

referred to by him as “pieces of paper.”

no

title

and

is

It was docketed as a

“Supplement” for want of better direction from plaintiff.

Upon

examination, it is apparent that plaintiff improperly attempts
to add new claims, which are habeas in nature.
court

to

“discover

his

jail

credit”
22

because

He asks this
he

is

“to

be

sentenced.”

This habeas claim, like his others, may not be

litigated

this

in

civil

rights

action

and

is

for

the

state

sentencing court in the first instance followed by exhaustion of
state appellate court remedies.
In

Documents

judgment.

33

and

34,

plaintiff

moves

for

default

In support, he alleges that a response was due 20

days after service by the U.S. Marshal and that no response has
been filed.
to

compel

In his second motion, plaintiff alternatively seeks
a

response

to

his

complaint.

As

Mr.

Jones

was

informed, this court is required by federal law to screen his
complaints.
for

the

Service was not previously ordered in this action

reason

completed.

that

the

screening

process

had

not

been

These motions present no factual or legal basis and

are denied.
Plaintiff’s next filing is entitled “Attempt to Fix Caption
of Defendants as Ordered” (Doc. 36) and was docketed as his
“Response.”
his

original

Plaintiff states that his referral to “et al” in
complaint

should

have

reasonably

been

read

to

include six persons as defendants.

However, these persons were

neither

referred

named

in

the

caption

elsewhere in that complaint.18

nor

to

as

defendants

This single-page document is not

18

Plaintiff also fails to allege facts showing personal participation in
the seizure of his four letters by Ross, Cole, or Phelps. These individuals
may not be held liable based only upon their supervisory capacity.

23

a proper and complete Amended Complaint, and plaintiff did not
effectively add parties to this action with this filing.19

Even

if the court liberally construed this as an Amended Complaint to
add

parties,

it

was

completely

superseded

subsequent Amended Complaint (Doc. 40).
has

found

that

the

mail

seizure

by

plaintiff’s

In any event, the court
did

not

amount

to

a

constitutional violation.
Plaintiff’s

next

filing

is

entitled

“Request

to

Proceed

With Case/Writ of Mandamus and/or Request for Court to Act”
(Doc. 37).

The court expressly denies this motion as moot as

well as without factual or legal basis.

Mr. Jones did not file

his Amended Complaint until 2 months after his time to respond
had expired, and his numerous other filings have served only to
delay resolution of this matter.
The court has considered and denies plaintiff’s “Motion is
(sic) Suport (sic) of Summary Judgement (sic)(Doc. 38).”

No

defendants have been served, and this is not a proper summary
judgment

motion

or

amended

complaint.

Nevertheless,

factual

allegations herein were considered by the court in screening
plaintiff’s claims.

In this motion repeats plaintiff repeats

19

Likewise, plaintiff’s claim of “mistaken fee” is not added and his
attachments to this pleading regarding a $3.00 sick call fee are not shown to
be related to his denial of access claims.

24

his claims and arguments regarding a filing ban in state court
and

his

four

letters

to

businesses.

He

does

not

allege

additional facts establishing that he is entitled to judgment.20
This motion is denied and found to be frivolous and abusive.
Plaintiff’s next filing is entitled “In U.S. District Court
Topeka

Kansas

document

is

Amended

a

copy

District Court.

Complaint”

of

a

(Doc.

pleading

39).

filed

in

However,
Shawnee

this

County

Suffice it to say that whatever this is, it is

not a complete amended complaint upon court-provided forms.

The

court construes this as a motion to amend and denies it because
it is not accompanied by a proper, complete amended complaint.
Plaintiff’s

Motion

to

Compell

(sic)

Discovery

Defendants (Doc. 42) has been considered and is denied.

from
There

is no indication that Mr. Jones has followed the Rules of Civil
Procedure governing discovery or that he is entitled to an order
compelling discovery at this time.

V.

SUMMARY AND ORDER
For

all

the

foregoing

reasons,

the

court

finds

that

plaintiff fails to state a federal constitutional claim and is
entitled to no relief.
20

Plaintiff gives no explanation for attaching to this motion pleadings
filed in Shawnee County District Court Case No. 13-C-146, including a request
for interrogatories. They are not considered further.

25

IT

IS THEREFORE

BY THE COURT

ORDERED

that plaintiff is

hereby assessed an initial partial filing fee of $19.50, and
this amount is immediately due and owing to the clerk of the
court.
IT IS FURTHER ORDERED that plaintiff’s Motions to Proceed
without

Prepayment

of

Fees

(Docs.

2,

12)

are

granted,

and

plaintiff is hereby assessed the remainder of the $350.00 filing
fee to be paid through payments automatically deducted from his
inmate

trust

1915(b)(2).
is

currently

fund

account

as

authorized

by

28

U.S.C.

§

The Finance Office of the Facility where plaintiff
confined

is

directed

by

copy

of

this

Order

to

collect from plaintiff’s account and pay to the clerk of the
court twenty percent (20%) of the prior month’s income each time
the amount in plaintiff’s account exceeds ten dollars ($10.00)
until

plaintiff’s

paid in full.
custodian
fee,

in

outstanding

filing

fee

obligation

has

been

Plaintiff is directed to cooperate fully with his
authorizing

including

but

not

disbursements
limited

to

to

satisfy

providing

the
any

filing
written

authorization required by his custodian to disburse funds from
his account.
IT IS FURTHER ORDERED that plaintiff’s remaining pending
motions (Docs. 9, 11, 14, 15, 19, 20, 21, 22, 25, 31, 33, 34,
35, 37 and 42) are denied.
26

IT

IS

without

FURTHER

prejudice,

ORDERED
for

that

failure

this
to

action

state

a

is

dismissed,

claim

and

as

frivolous.
The clerk is directed to send a copy of this Order to
plaintiff, to the finance officer at the institution in which
plaintiff

is

currently

confined,

and

to

the

court’s

finance

office.
IT IS SO ORDERED.
Dated this 21st day of August, 2013, at Topeka, Kansas.

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

27