Jones v. Kansas, State of et al

Filing 8

MEMORANDUM AND ORDER ENTERED: Plaintiff is given thirty (30) days to submit a motion to proceed without prepayment of fees that is on the appropriate court-provided forms with the requisite financial information attached, or proof that he has proper ly sought the financial information from the appropriate official but his request was improperly denied. Within the same thirty-day period, plaintiff is required to cure the deficiencies in his complaint or this action will be dismissed. All claims in the complaint that are challenges to plaintiff's state criminal convictions are dismissed without prejudice. Plaintiff's motions 3 & 4 to appoint counsel and motion 6 for injunctive relief are denied. Signed by Senior District Judge Sam A. Crow on 11/20/2012. (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
This pro se complaint was filed pursuant to 42 U.S.C. § 1983
by an inmate of the Shawnee County Jail, Topeka, Kansas.

In the

caption of the complaint, plaintiff names as defendants: State of
Kansas, Topeka Police, Shawnee County, Shawnee Co. Jail, and Shawnee
County Counselor.

Elsewhere in his complaint, he also lists

“Attorney General Office” as a defendant.
Plaintiff’s allegations as to the factual “background” of his
case include no names or dates and certainly no clear statement of
facts.

As Count I, plaintiff writes a jumble of statements with

conclusory assertions of the First Amendment right to communicate
and seizure of mail.
Amendments.

He also baldly cites the Fourth and Eighth

As factual support for this Count, he alleges that he

was forbidden from writing “legal mail” on his envelope and expresses
his opinion that “legal mail is mail to anyone regarding a legal
1

matter.”
As Count II, plaintiff claims his access to courts has been
blocked by “Shawnee County Court” and that he could not file a state
habeas action.

As supporting facts, he alleges that he has done the

“possible time on case 11-CR-523,” is unable to ask for relief about
“the D.A. office” digging into juvenile police report, and that he
brought his problems to Judge Braun on his current criminal charge
but “they” don’t look into his claims.
As Count III, plaintiff claims violations of his right to fair
trial and “judicial misconduct by D.A. and attorney.”

As support,

he alleges that “they” lied and tricked him into deals.

He also

alleges that Judge Wilson will not order his attorneys to produce
plea agreements to show he was tricked, will not make the jail produce
phone calls to his attorney about the plea agreements, and that he
complained to “the judges” but they “won’t turn on each other.”
Plaintiff

attaches

numerous

exhibits

However, none is referred to in the complaint.

to

his

complaint.

Many of the exhibits

are papers that Mr. Jones apparently filed in state court or exchanged
with state officials regarding his state criminal case No. 11-CR-523
or other civil matters.

He also includes a long police report from

1990 with no explanation as to its relevance.

The court has no

obligation to parse these papers in search of claims or facts to
support claims that plaintiff may intend to raise in this § 1983
2

complaint.
Plaintiff generally requests injunctive and declaratory relief
as well as a million dollars.

However, he does not request any

particular injunctive relief in the complaint and does not allege
facts indicating that he would be entitled to such relief.

FILING FEE
The statutory fee for filing a civil rights complaint is
$350.00.

Plaintiff has neither paid the fee nor submitted a complete

motion to proceed without prepayment of fees.

This action may not

proceed further until Mr. Jones has satisfied the statutory filing
fee in one of these two ways.

Mr. Jones is reminded that 28 U.S.C.

§ 1915 requires that a prisoner seeking to bring an action without
prepayment of fees submit a motion together with an affidavit
described in subsection (a)(1), and a “certified copy of the trust
fund

account

statement

(or

institutional

equivalent)

for

the

prisoner for the six-month period immediately preceding the filing”
of the action “obtained from the appropriate official of each prison
at which the prisoner is or was confined.”1 28 U.S.C. § 1915(a)(2).
1
Mr. Jones is also informed that pursuant to 28 U.S.C. §1915(b)(1) he will
remain obligated to pay the full district court filing fee of $350.00 for this
civil action. Being granted leave to proceed without prepayment of fees merely
entitles him to pay the filing fee over time through payments automatically
deducted from his inmate trust fund account as authorized by 28 U.S.C. §1915(b)(2).
Under that section, the Finance Office of the facility where plaintiff is confined
will be directed to collect twenty percent (20%) of the prior month’s income each
time the amount in plaintiff’s account exceeds ten dollars ($10.00) until the

3

Plaintiff’s bald statement that he “requested this” but never
received it is not sufficient to excuse him from this statutory
requirement.

Instead, he must provide some proof that he made a

proper request.
In addition Mr. Jones must utilize the proper forms for his
motion, which require that he set forth all his assets.

The facts

that he has been disabled and “on social security” do not excuse his
having to comply with these statutory prerequisites.

Nor does the

single page he submitted after his motion showing that he owed money
satisfy the requirement that he disclose his financial transactions
over a six-month period.
Plaintiff is given time to properly satisfy the filing fee
prerequisites.

He is forewarned that if he fails to do so within

the time prescribed by the court, this action may be dismissed without
prejudice and without further notice.

The clerk shall be directed

to provide plaintiff with forms for filing a proper motion under 28
U.S.C. § 1915(a).

SCREENING
Because Mr. Jones is a prisoner, the court is required by statute
to screen his complaint and to dismiss the complaint or any portion
thereof that is frivolous, fails to state a claim on which relief
filing fee has been paid in full.

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may be granted, or seeks relief from a defendant immune from such
relief.

28 U.S.C. § 1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(B).

A court liberally construes a pro se complaint and applies “less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
litigant’s

“conclusory

allegations

Nevertheless, a pro se

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).

The court “will not supply additional factual allegations to round
out a plaintiff’s complaint or construct a legal theory on a
plaintiff’s behalf.”
(10th Cir. 1997).

Whitney v. New Mexico, 113 F.3d 1170, 1173-74

“[W]hen the allegations in a complaint, however

true, could not raise a claim of entitlement to relief,” dismissal
is appropriate.
(2007).

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558

To avoid dismissal, the complaint’s “factual allegations

must be enough to raise a right to relief above the speculative
level,” and there must be “enough facts to state a claim to relief
that is plausible on its face.”

Id. at 558.

The complaint must

offer “more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action.”

Id. at 555.

Having screened

all materials filed, the court finds the complaint is subject to being
dismissed for the following reasons.

5

IMPROPER DEFENDANTS
“To 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, 48-49 (1988)(citations omitted); Northington
v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992).

None of the

following defendants is a “person:” State of Kansas, Topeka Police,
Shawnee County, Shawnee County Jail, Attorney General Office.

For

that reason, they are not proper defendants in this lawsuit under
§ 1983.
Furthermore, the State of Kansas and its agency Office of the
Attorney General are absolutely immune to suit for money damages
under the Eleventh Amendment.

In addition, counties and their

agencies and municipal agencies are not liable unless the acts
complained of were taken pursuant to an established policy of the
agency.

Plaintiff does not describe any county or city policy and

explain how it caused his constitutional rights to be violated.

IMPROPER CLAIMS
Plaintiff’s claims, to the extent that they can be understood,
are of two different types.

His claims that his right of court access

has been impeded and that his mail was improperly withheld are
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challenges to the conditions of his confinement and are properly
raised in a civil rights complaint.
All plaintiff’s other claims appear to be challenges to either
of two of Mr. Lee’s state criminal convictions.

For example, his

claims regarding his criminal history, that his guilty pleas were
coerced, that he has been denied a speedy trial, and that he served
his time on his earlier sentence are challenges to his state
convictions.

Any claims that are challenges to a state criminal

conviction may only be raised in federal court by filing a petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
are

not

properly

raised

in

this

civil

rights

Such claims
complaint.

Furthermore, plaintiff 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.

The court notes that

subsequent to filing this civil complaint, Mr. Lee filed a habeas
corpus petition in this court in which he raises at least some of
the same challenges to his state convictions.

None of plaintiff’s

habeas corpus claims will be considered in this civil rights action.
The only claims the court considers in this case are plaintiff’s
claims of denial of court access and interference with his mail.

FAILURE TO STATE FACTS TO SUPPORT A CLAIM
The court finds the following with respect to plaintiff’s
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conditions-of-confinement claims.

Rule 8(a)(2) of the Federal

Rules of Civil Procedure requires a plaintiff to present a “short
and plain statement of the claim showing that the pleader is entitled
to relief. . . .”

The Tenth Circuit Court of Appeals has explained

“that, to state a claim in federal court, a complaint must explain
what each defendant did to [the pro se plaintiff]; when the defendant
did it; how the defendant’s action harmed (the plaintiff); and, what
specific legal right the plaintiff believes the defendant violated.”
Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice
Center, 492 F.3d 1158, 1163 (10th Cir. 2007).
name any “person” as a defendant.

Plaintiff does not

Nor does he describe the acts taken

by any defendant that is named, the date of those acts, and how he
was harmed.
Plaintiff claims that his access to Shawnee County Court has
been impeded by that court.

However, the facts he alleges and his

attached exhibits do not support a claim of unconstitutional denial
of access.

His exhibits indicate that he filed several cases in

state court that a county judge found to be repetitive and abusive,
and that Mr. Jones was warned that he would be charged filing fees
in the future.

There is no right to file abusive pleadings in any

court, and a judge has full authority to control his docket as well
as to impose filing fees.
In any event, an essential element of a claim in federal court
8

of denial of access is a showing of actual injury.

Plaintiff does

not allege facts showing any injury to a non-frivolous action that
was filed by him.

Moreover, plaintiff’s complaints regarding his

state civil cases do not entitle him to the relief he requests against
any of the defendants named in the complaint.

If plaintiff disagrees

with any rulings of the Shawnee County District Court, his recourse
is to seek relief in the state appellate courts.
Plaintiff’s claim of interference with legal mail is likewise
not supported by sufficient facts.

Lee’s own allegations and

exhibits indicate the following factual background for this claim.
Mr. Lee attempted to mail letters that he had marked as legal mail,
which he describes as concerning his “civil affairs.”

However, jail

authorities determined that these letters did not fall within the
definition of legal mail.

Plaintiff had previously been warned not

to improperly designate mail as legal, and this rule violation led
to a disciplinary hearing and finding of guilty.

The exhibited

decision from the disciplinary proceedings indicates that the
letters in question were sent by plaintiff to Kansas Fiber Optic
Cable, LCD Class, Epig Bankruptcy Solutions, and Girardi and Company,
which are businesses rather than courts, governments or law firms.
Plaintiff was informed in a “Response” from the Director of the
Shawnee County Department of Corrections that “letters sent to your
home or local businesses” are not legal mail simply because you have
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placed the words “Legal Mail” upon them.

Plaintiff’s belief that

these letters were “legal in nature” is not enough to present a §
1983 claim in federal court.

Nor did his generically addressing

these letters to the “attorneys for” these businesses transform them
into legal mail.

In short, the facts alleged by Mr. Lee do not

indicate that administrative decisions regarding these four letters
violated his federal constitutional rights.
Plaintiff was also notified by the Director that his “letters
were confiscated,” held “as evidence for (his) disciplinary hearing”
and once that hearing was concluded were placed in his property so
that he could access them if he “utilize(d) the appropriate
mechanism.”

Thus, plaintiff does not even allege facts showing that

he is being prevented from accessing these letters.
In summary, the court finds that this complaint is frivolous
on its face and utterly fails to state facts or a legal theory that
would entitle plaintiff to relief under 42 U.S.C. § 1983.

Plaintiff

is given the opportunity to cure the deficiencies in his complaint
discussed herein.

If he fails to do so within the time allotted,

this action will be dismissed as frivolous and for failure to state
a claim and will count as a strike against Mr. Jones.2

2

Section 1915(g) of 28 U.S.C. provides:
In no event shall a prisoner bring a civil action or appeal a judgment
in a civil action or proceeding under this section if the prisoner
has, on 3 or more prior occasions, while incarcerated or detained in

10

The court has considered plaintiff’s Motions to Appoint Counsel
(Docs. 3 & 4).

There is no right to counsel in a civil action, and

the matter is within the discretion of the court.
appears to be frivolous.

This action

Accordingly, the court finds that these

motions should be denied.

OTHER FILINGS
Plaintiff has filed at least three additional pleadings.
Having considered these pleadings, the court finds that to the extent
they are motions, they should be denied.

Plaintiff is informed that

he must submit separate pleadings in each of his pending cases, and
that it is improper for him to send one pleading and request that
it be filed in two separate cases.

The court accepts handwritten

copies.
Plaintiff is also informed that he may not add claims to his
complaint by simply filing papers that discuss new claims.

Instead,

he may only add claims by filing a complete Amended Complaint upon
court-approved forms that includes all the parties and claims he
intends to pursue in his lawsuit.

An Amended Complaint completely

supersedes the original complaint.

Consequently, any claims in the

any facility, brought an action or appeal in a court that is frivolous,
malicious, or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious physical
injury.

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original complaint that are not included in the Amended Complaint
are no longer before the court.

Thus, Mr. Lee’s attempts to add

claims or significant allegations by way of these additional
pleadings are not accepted as amendments.
The first additional pleading filed by plaintiff contains no
title but states at the top: “To: Attorney General of Kansas.”

The

clerk was instructed to file this paper as a Supplement (Doc. 5).
However, the court now finds that Document 5 is not a proper motion
or other pleading.

It is “a letter” to the Attorney General in which

Mr. Lee repeats his claims and inexplicably sent to the court instead
of the Attorney General.

No court action is requested in this

letter, and none is awarded.
Document 6 filed by plaintiff is entitled a “Motion for
injunctive relief, specifically a Request Order to return seized
items, legal mail” (Doc. 6).

Plaintiff does not set forth any of

the four factors along with facts in support that might entitle him
to a preliminary injunction.

Instead, he asks this court to order

the Shawnee County Jail to “return the four letters” on which he wrote
“legal mail” so that he can mail them.

For reasons already stated,

plaintiff has failed to show a likelihood of success on the merits
of this claim, which is an essential factor for obtaining preliminary
injunctive relief.

Accordingly, this motion is denied.

Document 7 is not a proper pleading, and neither a case caption
12

nor a title is written on the first page as required.

It also appears

that several pages attached to Document 7 should have been presented
to the court as separate pleadings with the case caption and number
and a descriptive title on the first page of each.
Document 7 has material attached that should have been filed
as a supplement to plaintiff’s motion for appointment of counsel,
including letters from attorneys declining to represent him.

This

material was considered along with plaintiff’s motion for counsel,
and that motion was denied.
Two statements are also attached to Document 7 that are
addressed to “whom it may concern.”

In these statements, plaintiff

again makes claims regarding his state criminal convictions, which
as the court has already noted are not properly considered in this
civil rights complaint.
Plaintiff also attached to Document 7 a page with the title
“Petition for Damages & Injunctive Relief.”

On this page he asks

the court to order the return of seized property including guns,
money, gold, and jewels that apparently were forfeited and claims
illegal search and seizure.

As the court discussed earlier,

plaintiff may not add claims other than by filing a complete Amended
Complaint.

The court will not consider these claims as they have

not been properly added.

Moreover, they do not appear to be related

to plaintiff’s conditions claims and thus would not be properly
13

joined in this action.
Finally, a page is attached to Document 7 that is addressed to
“Shawnee County Counsler (sic).

In this letter, plaintiff discusses

a “lawsuit for consumer protection violations” that he filed and
complains about charges at the jail commissary.

No claim is properly

added, no court action is requested, and none is awarded.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff is given
thirty (30) days to submit a motion to proceed without prepayment
of fees that is on the appropriate court-provided forms with the
requisite financial information attached, or proof that he has
properly sought the financial information from the appropriate
official but his request was improperly denied.
IT IS FURTHER ORDERED that within the same thirty-day period
plaintiff is required to cure the deficiencies in his complaint that
have been discussed herein, or this action will be dismissed.
IT IS FURTHER ORDERED that all claims in the complaint that are
challenges to plaintiff’s state criminal convictions are dismissed,
without prejudice.
IT IS FURTHER ORDERED that plaintiff’s motions to appoint
counsel (Docs. 3 & 4) and Motion for Injunctive Relief (Doc. 6) are
denied.
The clerk is directed to send plaintiff the appropriate IFP
forms.
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IT IS SO ORDERED.
Dated this 20th day of November, 2012, at Topeka, Kansas.

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

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