Kendrex v. Markle et al
Filing
5
ORDER ENTERED: Plaintiff is given thirty (30) days in which to provide a certified copy of his inmate account statement for the appropriate six-month period in support of his motiom to proceed without fees. Within the same thirty-day period, plaintiff is required to file an Amended Complaint. Plaintiff's motion 3 for appointment of counsel is denied. Signed by Senior District Judge Sam A. Crow on 12/17/2012. (Mailed to pro se party Leon Kendrex by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LEON KENDREX,
Plaintiff,
v.
CASE NO.
12-3234-SAC
LARRY MARKLE, Montgomery
County Attorney, et al.,
Defendants.
O R D E R
This civil rights complaint was filed pro se pursuant to 28
U.S.C.
§
1983
by
an
inmate
of
the
Montgomery
County
Jail,
Independence, Kansas. The court has screened the complaint and finds
it is deficient in several ways.
Plaintiff is given time to cure
the deficiencies, which are explained in this order.
If he fails
to do so within the allotted time, this action may be dismissed
without further notice.
FILING FEE
The statutory fee for filing a civil rights action in federal
court is $350.00.
Plaintiff has filed a Motion to Proceed without
Prepayment of Fees. However, his motion is incomplete. Under federal
law, a prisoner seeking to bring a civil action in forma pauperis
must submit along with his motion a “certified copy” of his inmate
1
trust fund account statement for the six-month period immediately
preceding the filing of his complaint. 28 U.S.C. § 1915(a)(2). The
prisoner must obtain this certified statement from the appropriate
official.
Plaintiff will be given time to obtain and submit the
financial information that is required to support his motion.
Mr. Kendrex is reminded that under § 1915(b)(1), being granted
leave to proceed without prepayment of fees will not relieve him of
the obligation to pay the filing fee in full.
Instead, it entitles
him to pay the fee over time through payments automatically deducted
from his inmate trust fund account as authorized by 28 U.S.C. §
1915(b)(2).
Each month that the amount in the inmate’s account
exceeds $10.00, the agency having custody of the inmate shall assess,
deduct from the inmate’s account, and forward to the Clerk of the
Court an installment payment equal to 20% of the preceding month’s
income credited to the inmate’s account until the $350.00 filing fee
is paid.
28 U.S.C. § 1915(b)(2).
SCREENING
Because Mr. Kendrex 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 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).
“To state a claim under § 1983, a plaintiff must allege the violation
2
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).
Rule 8(a)(2) of the Federal Rules of Civil
Procedure requires a “short and plain statement of the claim showing
that the pleader is entitled to relief.” 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).
However, 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.”
Whitney v. New Mexico, 113 F.3d
1170, 1173-74 (10th Cir. 1997).
A pro se litigant’s “conclusory
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). The complaint must offer “more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007). The court accepts all well-pleaded allegations
in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th
Cir. 2006).
Still, “when the allegations in a complaint, however
true, could not raise a claim of entitlement to relief,” dismissal
is appropriate. Twombly, 550 U.S. at 558.
To avoid dismissal, the
complaint’s “factual allegations must be enough to raise a right to
3
relief above the speculative level.”
Id. at 555.
Put another way,
there must be “enough facts to state a claim to relief that is
plausible on its face.”
Id. at 570.
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). Having reviewed the complaint filed herein under these
standards, the court finds it is subject to being dismissed for the
following reasons.
DEFENDANTS
Rule 10 of the Federal Rules of Civil Procedure requires that
all parties be named in the caption of the complaint. It is elementary
that a plaintiff must clearly designate as a defendant each person
from whom he is seeking money damages.
Otherwise, problems with
notice and service are likely to arise.
In the caption, plaintiff
names
“Kansas,
Montgomery
County/Troy
Mackie,
Larry
Mackle.”
Elsewhere in the complaint, where he was directed to provide
information on each defendant, he lists “Larry Markle/Troy Mackie/
Mongtg. County” together and states that Larry Markle is the County
Attorney, Troy Mackie is the Undersheriff, and “Montg. County” is
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all City Council members.
The court finds that plaintiff names as
defendants Larry Markle, Montgomery County Attorney; Troy Mackie,
Montgomery County Undersheriff; Montgomery County, Kansas; and “City
Council.”
If plaintiff disagrees with this construction, he is
herein given the opportunity to file an Amended Complaint and is
required to clearly name all defendants in its caption.
FAILURE TO STATE A FEDERAL CONSTITITIONAL CLAIM
In the spaces provided in the form complaint for Count I, Count
II and Count III, plaintiff should have stated which of his federal
constitutional rights he believes was violated but did not. The court
will not construct a legal theory on plaintiff’s behalf. Thus, the
court
finds
that
plaintiff
has
failed
to
state
a
federal
constitutional claim.
In the space for supporting facts that follows each Count,
plaintiff should have set forth the facts on which he bases the claim
stated in that Count.
The court discusses each Count and its
deficiencies below.
A. COUNT I
Where his Count I claim should have been specified, plaintiff
states that he was “demoralize(ed)” to the point that his blood
pressure went up, and he was treated “racially unfair (sic) and with
extreme prejudice” by Markle and Mackie. Under supporting facts for
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this Count he simply lists Mackie, Markle, “Staff of Montgomery
County Jail” and “City Councel (sic)”.
Plaintiff’s
conclusory.
He
only
statement
does
not
in
allege
this
facts,
Count
is
including
completely
dates
and
circumstances, to explain what each defendant did to him. Nor does
he describe any serious injury that resulted from each defendant’s
acts.
B. COUNT II
As Count II, plaintiff alleges “Supplemental Sheets done on
County
Corrections
Officer
Christina
investigative Officer of Court.”
Stapp
and
Jon
Kirk
As supporting facts, he writes
“racism, illegal sentences, misrepresentation by Public Defenders
Office, violation lawyer client by G. Thomas Harris and Brian A.
Rickman.”
The first sentence under this Count that “supplemental sheets”
were done on persons that are neither plaintiff nor named defendants,
presents no recognizable legal claim whatsoever. The subsequent list
of wrongs is nothing but conclusory phrases, with no facts alleged
to indicate that any named defendant committed any of the wrongs.
An essential element of a civil rights claim is the personal
participation of each defendant.
Nowhere in his first two Counts,
does Mr. Kendrex refer to a single named defendant and explain what
unconstitutional acts that particular defendant took on what date
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and where. Nor does he describe any physical injury that he suffered
as a result of that defendant’s acts.
In this Count, plaintiff’s references to “Public Defenders
Office,” and attorneys Harris and Rickman suggest a criminal
proceeding.
If plaintiff is seeking to challenge events that
occurred during a criminal prosecution, he may only do so by filing
a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
He may not do so in this civil rights complaint for money damages.
Furthermore, he must exhaust state remedies on any such challenges
before he may file a habeas petition in federal court.
C. COUNT III
Plaintiff fills in the spaces for Count III and its supporting
facts with the following allegations. He has written “many (letters)
over the 5 months” but Mackie never answers his letters while he has
answered all letters of the white inmates “in this C-mod.”
Plaintiff does not provide the content of his letters, the dates
they were sent, or procedures by which they were directed to Mackie.
If they were grievances regarding the jail, he had no federal
constitutional right to a grievance procedure or to have a jail
official respond to every grievance.
Plaintiff fails to allege
sufficient facts to state an equal protection claim and to assert
a violation of any other federal constitutional right.
The court notes that no defendant other than Mackie is alleged
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to have participated in these events.
D. Allegations in Background Statement
In the “background” section of his complaint, plaintiff lists
a string of disorganized and conclusory claims that include the
following.
He was put in segregation for no reason.
He was given
oral medication by jail staff “without protective gloves.” “Staff”
has no medical experience or training. His legal work has been opened
and read by Sgt. Rowe.
None of these claims is sufficient because
no dates are provided and no circumstances are described.
In
addition, no act by any named defendant is described, except for the
bald statement that plaintiff told Mackie, Rowe’s superior, about
Rowe reading his mail and “apparently he’s done nothing.” The latter
statement is not sufficient to present a claim against Mackie because
a supervisor cannot be held liable based only upon his supervisory
capacity for acts taken by another person.
In the entire body of the complaint, the only mention of
particular defendants alongside factual allegations is of Mackie and
Markle in this section. Plaintiff alleges that Markle, and someone
else not clearly referenced, subjected him to charges of “misuse of
commissary purchase,” when someone else made the purchase and the
charges “aren’t even laws” but a violation of jail rules.
If
plaintiff is attempting to complain about a criminal action based
on these charges then, as previously discussed, he may only do so
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by filing a habeas corpus petition. 1
If he is complaining about
disciplinary charges and proceedings at the jail, he utterly fails
to state sufficient facts to show either that he was denied due
process or that any administrative decision was arbitrary or
capricious.2
Likewise,
no
facts
whatsoever
are
alleged
to
support
plaintiff’s allegations that Mackie is a witness against him and that
Mackie and his son have violated his rights.
Again, plaintiff
provides no dates and no description of any acts taken by either
Mackie or his son, who is not a named defendant.
Plaintiff claims to have witnesses and “letters of threats of
unfair treatment and lockdowns” and to fear for his life and
well-being in the jail. These are also nothing but bald statements
with no supporting facts.
Plaintiff’s prayer for relief is equally vague and provides no
1
The same is true regarding plaintiff’s bald claims that “this” all started
after “crime dates had been changed to run fraudulent sentences consecutive;” the
crime happened once but he was sentenced “2x consecutive with the help of (his)
attorney G. Thomas Harris,” Markle, and Judge Cullins; the “Sec. of Corrections
at El Dorado Prison wrote them to correct but nothing came of it;” and it was “passed
on to Judge House who did nothing and that “he’s guilty as well.” Plaintiff
repeatedly fails to provide enough facts for the court to even understand what
events he is challenging, more less what legal claim he may be asserting.
2
Plaintiff does not reveal what criminal charges were brought against him,
the court in which he was tried, the date of sentencing, or the sentence.
If plaintiff is attempting to challenge a disciplinary action taken at the
jail based on misuse of commissary, then he must provide the facts underlying the
charges. He must provide the offenses with which he was charged, describe the
process by which he was found guilty, the sanctions that were imposed, and the
date on which action was taken.
And, the court repeats for emphasis that if Mr. Kindrex is challenging either
disciplinary charges or criminal charges, he must do so by filing a habeas corpus
petition after having exhausted all administrative and state court remedies.
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insight into either the underlying facts or legal basis for any claim.
Plaintiff seeks “full compensation” for emotional and mental stress,
for
“demoralizing
treatment”
and
disrespect,
for
“threats
of
violence by staff” and “invasion of his security,” as well as for
“physical assaults,” when no physical assault has been described in
the complaint.
The court further finds that plaintiff fails to allege any facts
that describe actions taken by either Montgomery County or the City
Council.
either
of
Consequently, he utterly fails to state a claim against
these
defendants.
Moreover,
state
agencies
and
municipalities may not be held liable unless a county or city policy
caused the harm alleged in the complaint. Plaintiff does not describe
any county or city policy and allege how it resulted in the alleged
harm.
For all the foregoing reasons, the court finds that plaintiff
has utterly failed to state a federal constitutional claim against
any named defendant.
Plaintiff is given time to file an Amended
Complaint on court-approved forms in which he cures the deficiencies
discussed above.
If he fails to comply within the time allotted,
this action may be dismissed without further notice.
Furthermore,
if plaintiff fails to file an Amended Complaint that alleges
additional facts sufficient to state a claim, this action shall count
as a strike against him under the three-strikes provision in 28 U.S.C.
10
§ 1915(g).3
Finally, the court reminds plaintiff that under the Federal
Rules of Civil Procedure regarding joinder of claims and parties
(Rules 18, 19, and 20), claims against different defendants arising
out of unrelated events must be brought in separate lawsuits. Thus,
he may not include claims in his Amended Complaint that are against
different defendants based on events that have not arisen out of the
same series
of
transactions or occurrences.
If he includes
improperly joined claims or parties, they will be dismissed from this
action without further notice.
Plaintiff is further advised that he must write the word
“Amended” and the number of this case, 12-3234, on the first page
of his new complaint.
He is warned that his Amended Complaint will
completely supersede his original complaint, and he may not simply
refer to the earlier complaint. Instead, his Amended Complaint must
contain all claims and allegations he intends to present in this
lawsuit. Any claims not included in the Amended Complaint shall not
be considered.
The court has considered plaintiff’s Motion for Appointment of
3
Section 1915(g) 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
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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Counsel (Doc. 3), and finds that it should be denied.
There is no
constitutional right to appointment of counsel in a civil rights
action, and the matter is within the court’s discretion. Plaintiff
has failed to state a claim in his complaint and is thus not entitled
to have counsel appointed.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff is given
thirty (30) days in which to provide a certified copy of his inmate
account statement for the appropriate six-month period in support
of his motion to proceed without fees.
IT IS FURTHER ORDERED that within the same thirty-day period
plaintiff is required to file an Amended Complaint that cures all
the deficiencies discussed herein, or this matter may be dismissed
without further notice for failure to state a claim.
IT IS FURTHER ORDERED that plaintiff’s Motion for Appointment
of Counsel (Doc. 3) is denied.
The clerk is directed to send 1983 forms to plaintiff.
IT IS SO ORDERED.
Dated this 17th day of December, 2012, at Topeka, Kansas.
s/Sam A. Crow
U. S. Senior District Judge
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