Gray v. Hinshaw et al

Filing 4

ORDER ENTERED: Plaintiff's motion 2 to proceed without prepayment of fees is granted. Plaintiff is given thirty (30) days in which to file an amended complaint that cures all the deficiencies or this matter may be dismissed without further notice for failure to state a claim. Signed by Senior District Judge Sam A. Crow on 1/10/2013. (Mailed to pro se party Rubby James Gray by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
RUBBY JAMES GRAY,
Plaintiff,
v.

CASE NO.

12-3237-SAC

(fnu) HINSHAW,Sedgwick
County Sheriff, 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 Sedgwick County Jail, Wichita,
Kansas (SCJ).1

The court has screened the complaint and finds it to

be deficient in several ways.

Plaintiff is given time to cure the

deficiencies set forth 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.
prepayment of fees.

Plaintiff has filed a motion to proceed without
Under federal law, a prisoner seeking to bring

a civil action in forma pauperis must submit a “certified copy” of
his inmate trust fund account statement for the six-month period
1

On December 12, 2012, plaintiff filed notice that he is no longer
incarcerated, and of his new address. He incorrectly suggests that this action
was filed in July 2012, when it was filed on November 19, 2012.

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immediately preceding the filing of his complaint.
1915(a)(2).

28 U.S.C. §

The prisoner must obtain this certified statement from

the appropriate jail or prison official.

Mr. Gray has attached two

handwritten pages to his form motion, which are not financial
information but complaints about his treatment at the SCJ.

These

pages do not support his motion, and are not considered further in
this action.
Mr. Gray is reminded that under § 1915(b)(1), being granted
leave to proceed without prepayment of fees does not relieve a
prisoner plaintiff of the obligation to pay the filing fee.

Instead,

it

payments

entitles

him

to

pay

that

fee

over

time

through

automatically deducted from his inmate trust fund account as
authorized

by

28

U.S.C.

§

1915(b)(2).

If

Mr.

Gray

becomes

incarcerated again, he may be required to make monthly payments from
his inmate account until the obligation he has incurred upon the
filing of this action is paid in full. 2

Based upon the limited

information received thus far regarding Mr. Gray’s finances, the
court finds that he is unable to pay the entire fee upfront and has
not had sufficient balances or deposits in his inmate account so as
to be required to pay an initial partial filing fee.
his motion shall be granted.

Accordingly,

However, this order is subject to

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).

2

change should any additional contrary information regarding Mr.
Gray’s finances come before the court.

SCREENING
At the time this complaint was filed, Mr. Gray was a prisoner
and the court was 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.
(b); 28 U.S.C. § 1915(e)(2)(B).

28 U.S.C. § 1915A(a) and

Even though plaintiff is no longer

incarcerated, the court remains authorized to screen because he seeks
leave to proceed without prepayment of fees.

“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).

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.”
complaint

and

applies

A court liberally construes a pro se
“less

pleadings drafted by lawyers.”
(2007).

stringent

standards

than

formal

Erickson v. Pardus, 551 U.S. 89, 94

However, the court “will not supply additional factual

allegations to round out a plaintiff’s complaint or construct a legal
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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.”
935 F.2d 1106, 1110 (10th Cir. 1991).

Hall v. Bellmon,

The complaint must offer “more

than labels and conclusions, and a formulaic recitation of the
elements of a cause of action.”
U.S.

544,

555

(2007).

Bell Atlantic Corp. v. Twombly, 550

The

court

allegations in the complaint as true.
910, 913 (10th Cir. 2006).

accepts

all

well-pleaded

Anderson v. Blake, 469 F.3d

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 relief above the speculative level.”
550 U.S. at 555.

Twombly,

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 applied these standards

to the complaint filed herein, the court finds it is subject to being
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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 each person from
whom he is seeking money damages as a defendant.

In the caption,

plaintiff names “Sheriff Hinshaw/ Sheriff Bascun/ Director of
Programs/ Medical Service: Ms. Alicia/ Ms. Sue D1844/ Ms. Aldrile
Physicians Reg.”

Elsewhere in the complaint where he was directed

to provide information on each defendant, he lists the defendants
as Sheriff Hinshaw and Sheriff Bascun and “additional defendants”
as Jail Deputy Hured, “Jail Deputy at Finney County Jail,” Garden
City, Kansas; and Sergeant Loving, Sergeant at Finney County Jail,
Garden City, Kansas.

Plaintiff is required to file an Amended

Complaint upon court-approved forms.

In this Amended Complaint, he

must name every defendant that he is suing in the caption and then
in the appropriate following paragraph provide information for each
defendant named in the caption.

FAILURE TO STATE A FEDERAL CONSTITITIONAL CLAIM
In the spaces 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.
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He did not.

The

court will not construct a legal theory on plaintiff’s behalf.

Thus,

he 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 the claim stated
in that Count is based.
of facts in both spaces.

Mr. Gray has improperly recited a string
The court discusses each Count and its

deficiencies below.

COUNT I
As his Count I claim and facts, plaintiff alleges as follows.
On July 13, 2012, he was prescribed medication for arthritis and a
nasal spray for sinus and breathing problems.

He asked for this

medication for nearly a month and did not get it until August 7, 2012.
About July 16, 2012, he was given medication that he is allergic to
– Ibuprofen.

He was charged for the Ibuprofen.

disrespectful and unprofessional.
medication at SCJ the whole time.

“The clinic” is very

He has had problems with his
He mentions “Medical Neglegance

(sic) and malpractice.”
In this string of statements, plaintiff does not refer to any
defendant and explain what that defendant did to him.

Nor does he

describe any serious injury that resulted from the acts of each
defendant.

As noted, he also has failed to specify the particular

federal constitutional provision that he believes was violated.
Neither negligence nor malpractice is sufficient to state a claim
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in federal court under § 1983.

COUNT II
As Count II, plaintiff alleges the following.

On July 18, 2012,

the clinic at the SCJ (“Con Med”) took x-rays of his finger.
cleared him to be moved out of county.”

“They

He was moved without his

medication and x-ray results.
An essential element of a civil rights claim is the personal
participation of each defendant.

In this string of statements,

plaintiff again does not refer to a single defendant by name and
explain what that defendant did to him.
named defendant actually harmed him.

Nor does he tell how any

In fact, Mr. Gray does not

describe the personal acts of any named defendant under either Count
I or Count II.

He does not satisfy the personal participation

element by stating elsewhere in the complaint that defendants Hinshaw
and Bascun were responsible for his safety and well-being and that
he “wrote several complaints.”
It appears that plaintiff is complaining about having been
transferred to Finney County Jail (FJC) on July 19, 2012.

However,

he has no federal constitutional right to remain at a particular jail.
Furthermore, a delay in medical treatment including the receipt of
medication or test results, is not sufficient to state a federal
constitutional claim without a showing of substantial harm.
harm is described in the complaint.
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No such

Plaintiff alleges other facts under this Count that appear to
relate to his Count III allegations instead, and they are discussed
under Count III.

COUNT III
As his Count III, plaintiff alleges that while he was at the
Finney County Jail he was subjected to sexual harassment, racial
discrimination, most of the medical negligent (sic), threats, and
misconduct.

He further alleges the following.

have a nurse there” for the 12 days he was there.
and very discriminating people.”

“They didn’t even
“They are racist

Sergeant Loving, a jailer, was

acting as “nurse, administrator, and everything else when it came
to my medical needs.”

Obviously, most of these statements are

completely conclusory, and none describes any serious harm that
resulted to plaintiff.
In the “background” section of his complaint, plaintiff alleged
the following other facts regarding his stay at FCJ.

He was booked

into FCJ by defendant Hured who told him to bend over and spread his
“butt cheeks” then made the “very racist and a sexual harassment or
misconduct remark” to plaintiff that “all black guys have fat butt
cheeks.”

These facts, taken as true, suggest that plaintiff was

subjected to a body cavity search rather than sexual harassment or
sexual misconduct.

Moreover, even though a racist remark is very

unprofessional

inappropriate,

and

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it

is

well-settled

that

an

incident of verbal harassment by a jail or prison guard does not give
rise to a claim of federal constitutional violation.
Plaintiff also alleges that on July 21, 2012, he was locked down
for 24 hours by the “jail deputy” who “worked the pod (he) was in;”
and feeling it was unjustified, he “wrote it up” and called “him”
a racist and some other things.”

A day or two later Sergeant Loving

came to his cell and threatened him to keep quiet and do as he was
told or she would put him somewhere he would not like.

Elsewhere

in the complaint, he alleges that Loving threatened him and lied about
him faking a heart attack.

The court repeats that verbal threats

do not state a federal constitutional claim.

Plaintiff also alleges

that Loving caused him to be locked down at the SCJ for 15 days, but
this claim is not supported by any facts whatsoever.

In any event,

an inmate has no liberty interest in remaining in general population
or a particular security classification.

It follows that being

placed on lock-down status without more does not show that any federal
constitutional right was violated.
In addition, plaintiff cannot sue persons who worked at the SCJ
based on incidents at the SCJ in the same complaint as he sues
different persons who worked at the FCJ based on incidents that
occurred at the SCJ.

This is because claims against different

defendants arising out of unrelated events must be brought in
separate lawsuits.

Thus, plaintiff may not include claims in his

Amended Complaint against employees at both jails.
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Finally, the court notes that plaintiff fails to allege any
facts under his Counts that describe actions taken by the following
listed defendants:

Sheriff Hinshaw, Sheriff Bascun, Director of

Programs, Medical Service: Ms. Alicia, Ms. Sue D1844, and Ms. Aldrile
Physicians Reg.

Consequently, he utterly fails to state a claim

against any of these persons.
For all the foregoing reasons, the court finds that plaintiff
has failed to state a federal constitutional claim against any named
defendant.

Plaintiff is given time to file an Amended Complaint 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.
Plaintiff is advised that he must write the word “Amended” and
the number of this case (12-3237) 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.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff’s Motion
to Proceed without Prepayment of Fees (Doc. 2) is granted.
IT IS FURTHER ORDERED that plaintiff is given thirty (30) days
in which to file an Amended Complaint that cures all the deficiencies
discussed herein, or this matter may be dismissed without further
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notice for failure to state a claim.
The clerk is directed to send 1983 forms to plaintiff at his
current address.
IT IS SO ORDERED.
Dated this 10th day of January, 2013, at Topeka, Kansas.

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

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