Foshee v. Heimgartner et al

Filing 4

ORDER ENTERED: Plaintiff is granted twenty (20) days to supplement his in forma pauperis motion with a certified copy of his institutinal financial records for the six months preceding Octopber 31, 2012, from all facilities in which he was housed du ring that period. The El Dorado Correctional Facility is dismissed as a defendant in this action. Plaintiff is granted twenty (20) days to avoid summary dsmissal of the complaint by filing an amended complaint that cures deficiencies identified by the court. Signed by Senior District Judge Sam A. Crow on 11/14/2012. (Mailed to pro se party John Harold Foshee by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JOHN HAROLD FOSHEE,
Plaintiff,
v.

CASE NO. 12-3230-SAC

JAMES HEIMGARTNER, et al.,
Defendants.

O R D E R
This matter comes before the court on a pro se complaint seeking
relief under 42 U.S.C. § 1983, submitted pro se by a prisoner
incarcerated in a Kansas correctional facility.

Also before the

court is plaintiff’ motion for leave to proceed without prepayment
of the $350.00 district court filing fee.
Motion for In Forma Pauperis, 28 U.S.C. § 1915
The Prison Litigation Reform Act of 1995 requires a prisoner
seeking to bring a civil action without prepayment of the district
court filing fee to submit an affidavit that includes a statement of
all assets, a statement of the nature of the complaint, and the
affiant's belief that he is entitled to redress.
1915(a)(1).

28 U.S.C. '

The court finds the motion for leave to proceed in forma

pauperis filed by plaintiff satisfies these requirements.
Section 1915(a)(2) requires an inmate to also submit a certified
copy of the inmate's institutional account for the six months
immediately preceding the filing of the action, from an appropriate

official from each prison in which the inmate is or was incarcerated.
In the instant matter, plaintiff provided certified financial records
dated April 20, 2012, which clearly do not cover the six month period
prior to his filing of the instant complaint on October 31, 2012.

The

court grants plaintiff additional time to submit the certified
financial records for the six month period required by § 1915(b)(2).
The failure to file a timely response may result in the complaint being
dismissed without prejudice, and without further prior notice.
Screening of the Complaint, 28 U.S.C. § 1915A
A federal court must conduct an initial screening of any action
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).

In

conducting the screening, the court must identify any viable claim
and must dismiss any part of the action which is frivolous, malicious,
fails to state a claim upon which relief may be granted, or seeks
monetary damages from a defendant who is immune from such relief.

See

28 U.S.C. ' 1915A(b).
A pro se party=s complaint must be given a liberal construction.
Haines v. Kerner, 404 U.S. 519, 520 (1972).

However, a party

proceeding pro se has Athe burden of alleging sufficient facts on which
a recognized legal claim could be based.@

Hall v. Bellmon, 935 F.2d

1106, 1110 (10th Cir.1991).
To state a claim for relief, the complaint must present
allegations of fact, assumed to be true, that Araise a right to relief
above the speculative level.@
U.S. 544, 555 (2007).

Bell Atlantic Corp. v. Twombly, 550

The complaint must present Aenough facts to

state a claim to relief that is plausible on its face.@

Id. at 570.

At this stage, the court accepts all well-leaded allegations as true
and views them in the light most favorable to the plaintiff.

Id. at

555.
Plaintiff names the following defendants in his complaint:

the

El Dorado Correctional Facility (EDCF), EDCF Warden Heimgartner,
Correct Care Solutions (CCS) Medical Board, the “State Board of
Kansas,” Century Prison Base, Pioneer Balloon Company, Aramark, and
“PMC.”
The court first summarily dismisses EDCF as a party in this
action, because the correctional facility itself is not a legal entity
subject to suit.

See e.g., Aston v. Cunningham, 216 F.3d 1086, *4,

n. 3 (10th Cir.2000) (“a detention facility is not a person or legally
created entity capable of being sued”) (unpublished).
As to the remaining defendants, plaintiff appears to broadly
complain that he is wrongfully being denied a prosthetic leg, and is
thereby not able to participate in programming and work assignments
needed for favorable parole consideration.

Plaintiff, however,

provides no dates or facts in support of this sweeping allegation,
and fails to allege how each named defendant personally participated
in any alleged violation of plaintiff’s constitutional rights.1

See

Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir.1996)(“personal
participation is an essential allegation in a § 1983 claim”).
Accordingly, absent amendment of the complaint on a court
approved
1

form

complaint,

plaintiff’s

bare

conclusory

claim

of

Plaintiff is advised that relief under § 1983 against a private corporate
entity requires allegations sufficient to plausibly establish a constitutional
deprivation pursuant to a corporate policy or custom of the corporation. Dubbs v.
Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir.2003); Monell v. New York City
Department of Social Services, 436 U.S. 658 (1978).

constitutional deprivation is subject to being summarily dismissed
as stating no claim for relief.

Hall, 935 F3d. at 1110.

The failure

to file a timely amended complaint may result in the dismissal of the
complaint as stating no claim for relief.

28 U.S.C. § 1915A(b); 28

U.S.C. § 1915(e)(2)(B)(ii).
Exhaustion of Administrative Remedies, 42 U.S.C. § 1997e(a)
Plaintiff is reminded that full exhaustion of administrative
remedies is required prior to seeking relief in federal court.

See

42 U.S.C. ' 1997e(a)("No action shall be brought with respect to prison
conditions under section 1983 of this title, or any other Federal law,
by a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are
exhausted.").

Here, the complaint plainly reveals that plaintiff

marked “No” to the question of whether he had previously sought
informal or formal relief from appropriate administrative officials
regarding the acts complained of.

Plaintiff provides, however,

copies of numerous receipt slips of inmate form requests to staff which
include no information regarding the request made, any staff response,
or any indication that plaintiff pursued an administrative appeal.
See Woodford v. Ngo, 548 U.S. 81, 90 (2006) (a prisoner must "use[]
all steps that the agency holds out" in "compliance with an agency’s
deadlines and other critical procedural rules")(internal quotations
omitted).
Plaintiff is invited to clarify this ambiguity if he files an
amended complaint.

While a prisoner is not required to plead or

demonstrate that he has exhausted administrative remedies, Jones v.
Bock, 549 U.S. 199, 216 (2007), plaintiff is advised that dismissal

of the complaint without prejudice is appropriate if it is clear on
the face of the complaint that plaintiff has not fully exhausted
administrative remedies as required by § 1997e(a).

See Aquilar–

Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir.2007)(district
courts may raise exhaustion question sua sponte consistent with 42
U.S.C. § 1997e(c)(1) and 28 U.S.C. §§ 1915 and 1915A, and dismiss
prisoner complaint for failure to state a claim if it is clear from
face of complaint that prisoner has not exhausted administrative
remedies).
IT IS THEREFORE ORDERED that plaintiff is granted twenty (20)
days to supplement his in forma pauperis motion with a certified copy
of his institutional financial records for the six months preceding
October 31, 2012, from all facilities in which he was housed during
that period.
IT IS FURTHER ORDERED that the El Dorado Correctional Facility
is dismissed as a defendant in this action, and that plaintiff is
granted twenty (20) days to avoid summary dismissal of the complaint
by filing an amended complaint that cures deficiencies identified by
the court.
The clerk’s office is to provide plaintiff with a form complaint
for filing under 42 U.S.C. § 1983.
IT IS SO ORDERED.
DATED:

This 14th day of November 2012 at Topeka, Kansas.

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