Loyd v. Shawnee County Department of Corrections et al

Filing 3

ORDER ENTERED: Plaintiff is granted thirty (30) days in which to submit a certified copy of his inmate account statement for the six-month period immediately preceding the filing of the complaint. Within the same thirty-day period, plaintiff must s how cause why this action should not be dismissed for failure to exhaust administrative remedies and for failure to state sufficient facts to support a federal constitutional claim. Signed by Senior District Judge Sam A. Crow on 1/23/2013. (Mailed to pro se party Angelo Tyrone Loyd by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ANGELO TYRONE LOYD,
Plaintiff,
v.

CASE NO.

12-3248-SAC

SHAWNEE COUNTY DEPARTMENT
OF CORRECTIONS,
et al.,
Defendants.
O R D E R
This pro se civil complaint was filed pursuant to 42 U.S.C. §
1983 by an inmate of the Shawnee County Jail, Topeka, Kansas.
Plaintiff names as defendants the Shawnee County Department of
Corrections and “correction officer,” Topeka, Kansas.
As the factual background for this action, plaintiff alleges
as follows.

On October 26, 2012, he was involved in a verbal

altercation with “OFC J. Cooper,” which began with Cooper calling
him and his roommates derogatory names while telling them to lockdown
and plaintiff yelling names back at Cooper.

Plaintiff cooled down

and tried to apologize, but Cooper threatened plaintiff that he would
beat him and pushed plaintiff “very hard causing (him) to land on
(his) back, butt and hands.”
went to his cell.

Plaintiff called Cooper names, then

Cooper smirks whenever he goes past plaintiff’s

cell.
As Count I, plaintiff claims that he was threatened and
assaulted by “SNCO C.O Officer” employed at the SCJ.

It appears he

is referring to Correctional Officer (CO) Cooper, but he has not
written Cooper’s name in either the caption or the other paragraph
in his form complaint in which he was directed to provide information
on each defendant.

Plaintiff does not delineate any other counts.

He seeks 2.5 million dollars.

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

Plaintiff has filed an Application to Proceed without

Prepayment of Fees (Doc. 2).

However, this motion is incomplete.

Plaintiff has not attached a certified copy of his Inmate Account
Statement in support as required by statute.1

He is given time to

obtain and submit the certified copy of his inmate account statement
to the court.

If he does not provide this document in the time

allotted, this action may be dismissed without further notice.

SCREENING
1

28 U.S.C. § 1915(a)(2) pertinently provides: “A prisoner seeking to
bring a civil action . . . without prepayment of fees . . . , in addition to filing
the affidavit filed under paragraph (1), shall submit a certified copy of the trust
fund account statement (or institutional equivalent) for the prisoner for the
6-month period immediately preceding the filing of the complaint . . . obtained
from the appropriate official of each prison at which the prisoner is or was
confined.”

Because Mr. Loyd 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
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).

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.”
(10th Cir. 1997).

Whitney v. New Mexico, 113 F.3d 1170, 1173-74
A pro se litigant’s “conclusory allegations

without supporting factual averments are insufficient to state a
claim upon which relief can be based.”
1106, 1110 (10th Cir. 1991).

Hall v. Bellmon, 935 F.2d

The complaint must offer “more than

labels and conclusions, and a formulaic recitation of the elements
of a cause of action.”
555 (2007).

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

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
relief above the speculative level.”

Twombly, 550 U.S. at 555.

In

other words, there must be “enough facts to state a claim to relief
that is plausible on its face.”

Id. at 570.

Having reviewed the

complaint under the foregoing standards, the court finds it is
subject to being dismissed for the following reasons.

FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
In response to the question on his form complaint as to whether
or not he sought relief from administrative officials, Mr. Loyd
marked “No.”

It thus appears from plaintiff’s own allegations that

he has not exhausted administrative remedies on his claims.

Under

42 U.S.C. § 1997e(a), “a prisoner must exhaust his administrative
remedies prior to filing a lawsuit regarding prison conditions in
federal court.”

Id.

Section 1997e(a) expressly provides:

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.

Id.

This exhaustion requirement “is mandatory, and the district

court [is] not authorized to dispense with it.”

Beaudry v.

Corrections Corp. of Am., 331 F.3d 1164, 1167 n. 5 (10th Cir. 2003),
cert. denied, 540 U.S. 1118 (2004); Little v. Jones, 607 F.3d 1245,
1249 (10th Cir. 2010). 2

While failure to exhaust generally is an

affirmative defense and a plaintiff is not required to plead it in
the complaint, when that failure is clear from materials filed by
plaintiff, the court may sua sponte require plaintiff to show that
he has exhausted.

See Aquilar-Avellaveda v. Terrell, 478 F.3d 1223,

1225 (10th Cir. 2007)(acknowledging 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).
Accordingly, the court finds that plaintiff’s § 1983 complaint is
subject to being dismissed without prejudice pursuant to 28 U.S.C.
§§ 1915A, 1915(e)(2)(B)(ii), and 42 U.S.C. § 1997e(c)(1), based on
plaintiff’s failure to exhaust available administrative remedies
prior to filing this action.

Plaintiff is given time to show cause

why this action should not be dismissed for failure to exhaust.

If

he does not show good cause within the time allotted, this action

2
The “inmate may only exhaust by properly following all the steps laid out
in the prison system’s grievance procedures.” Little, 607 F.3d at 1249 (citing
Woodford v. Ngo, 548 U.S. 81, 90 (2006). “An inmate who begins the grievance
process but does not complete it is barred from pursuing a § 1983 claim . . . .”
Id. (citing Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002)).

5

may be dismissed without further notice.

FAILURE TO STATE A CLAIM
As noted, plaintiff’s single count is that he was threatened
and assaulted by a correctional officer at the Shawnee County Jail.
Accepting plaintiff’s allegation that he was threatened as true, the
court finds that it fails to state a federal constitutional
violation.

It is well-settled that verbal threats do not amount to

constitutional violations.
Plaintiff’s allegation that he was pushed by a correctional
officer during a verbal altercation between the officer and several
inmates ordered to lockdown also fails, without more, to state a claim
of violation of the United States Constitution.

Not every isolated

battery or injury to an inmate amounts to a federal constitutional
violation.

See Hudson v. McMillian, 503 U.S. 1, 9 (1992)(Not “every

malevolent touch by a prison guard gives rise to a federal cause of
action.”); Smith v. Iron County, 692 F.2d 685 (10th Cir. 1982)(A prison
guard’s use of force against a prisoner is not always a constitutional
violation.); El’Amin v. Pearce, 750 F.2d 829, 831 (10th Cir.
1984)(While an assault by a jailer on his prisoner can give rise to
an action under section 1983, a jailer’s use of force against a
prisoner is not always a constitutional violation.); see also George
v. Evans, 633 F.2d 413, 416 (5th Cir. 1980)(“A single unauthorized
assault

by

a

guard

does

not

constitute
6

cruel

and

unusual

punishment.”).

In circumstances similar to those described by

plaintiff, courts have repeatedly quoted Judge Friendly’s opinion
in Johnson v. Glick:
Not every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers, violates
a prisoner’s constitutional rights.
Johnson v. Glick, 481 F.2d 1029, 1033 (2nd Cir.), cert. denied sub
nom Employee-Officer John v. Johnson, 414 U.S. 1033 (1973); see
DeWalt v. Carter, 224 F.3d 607, 620 (7th Cir. 2000)(holding that prison
guard’s “simple act of shoving” inmate into a door frame was not an
Eighth Amendment violation.); Suits v. Lynch, 437 F.Supp. 38, 40
(D.Kan. 1977).

As the United States Supreme Court has explained:

Section 1983 imposes liability for violations of rights
protected by the Constitution, not for violations of
duties of care arising out of tort law. Remedy for the
latter type of injury must be sought in state court under
traditional tort-law principles.
Baker v. McCollan, 443 U.S. 137, 146 (1979).

Courts generally

analyze a prisoner’s claim of excessive force under the Eighth
Amendment’s cruel and unusual punishment clause.

Cf. Whitley v.

Albers, 475 U.S. 312, 320-321 (1986); Sampley v. Ruettgers, 704 F.2d
491, 494-496 (10th Cir. 1983).3

3

Plaintiff’s allegations appear to

In Sampley, the Tenth Circuit instructed:

A prison guard=s use of force against an inmate is “cruel and unusual”
only if it involves “the unnecessary and wanton infliction of pain.”
Gregg v. Georgia, 428 U.S. 153, 173 (1976). We think that this
standard imposes three requirements for an inmate to state a cause
of action under the eighth amendment and section 1983 for an attack
by a prison guard. First, “wanton” requires that the guard have
intended to harm the inmate. Second, “unnecessary” requires the
force used to have been more than appeared reasonably necessary at

7

describe an isolated battery at most.

Unless plaintiff can allege

additional facts, his allegations fail to implicate constitutional
concerns.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff is granted
thirty (30) days in which to submit a certified copy of his inmate
account statement for the six-month period immediately preceding the
filing of the complaint as required by 28 U.S.C. § 1915(a)(2).
IT IS FURTHER ORDERED that within the same thirty-day period
plaintiff must show cause why this action should not be dismissed
for failure to exhaust administrative remedies and for failure to
state sufficient facts to support a federal constitutional claim.
IT IS SO ORDERED.
Dated this 23rd day of January, 2012, at Topeka, Kansas.

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

the time of the use of force to maintain or restore discipline. Third,
“pain” means more than momentary discomfort; the attack must have
resulted in either severe pain or a lasting injury.
Id.

8