Hughes v. Heimgartner et al
Filing
10
MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 2 for leave to proceed without prepayment of fees is granted. Plaintiff's claim of denial due process and plaintiff's claim for punitive damages are dismissed. The clerk of the cour t shall prepare summons and waiver of service forms pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. The clerk of the court shall enter the Kansas Department of Corrections as an interested party on the docket for the limited purpose of preparing the Martinez report. Signed by Senior District Judge Sam A. Crow on 04/03/14. (Mailed to pro se party Charley Hughes by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CHARLEY HUGHES,
Plaintiff,
v.
CASE NO.
12-3250-SAC
JAMES HEIMGARTNER, et al.,
Defendants.
MEMORANDUM AND ORDER
Upon
screening
the
original
complaint
filed
herein,
the
court found several deficiencies and required plaintiff to show
cause why the following claims should not be dismissed: (1) his
denial
of
equal
protection
claim;
(2)
his
RLUIPA
claim
for
damages, with prejudice; (3) his claim for compensatory damages
under the Free Exercise Clause due to lack of physical injury;
and (4) his claim for punitive damages under the Free Exercise
Clause for failure to allege facts in support.
Plaintiff filed
a Response together with a Motion for Leave to Amend Complaint,
which the court granted.
Plaintiff was also assessed an initial
partial filing fee of $2.00, which he has paid.
Accordingly,
Mr. Hughes is granted Leave to Proceed without Prepayment of
Fees.
The matter is before the court upon plaintiff’s First
1
Amended
Complaint
(Doc.
9),
which
is
subject
to
the
same
screening process as the original complaint.1
Having
considered
the
First
Amended
Complaint
materials filed, the court finds as follows.
Complaint,
Mr.
Hughes
again
alleges
that
and
all
In his Amended
defendant
Warden
Heimgartner and defendant Chaplain Phelan denied his request at
the EDCF for Halal meals in segregation.
As factual support, he
again alleges that on May 7, 2012, he sent a form 9 to the
“Chaplain Department” asking “to receive the Halal Meal that
Muslims
in
general
population”
receive
for
the
“Eid-ul-Fitr
Feast,” and that the chaplain informed plaintiff that Muslims in
segregation do not get the same privileges as Muslims in general
population.
In Count I of his complaint, he asserts violation
of his religious exercise rights under the First Amendment and
the
Religious
(RLUIPA),
42
Land
U.S.C.
Use
§§
and
Institutionalized
2000cc–1,
1
et
seq.
In
Persons
Count
II,
Act
he
Because Mr. Hughes is a prisoner, the court is required by statute to
screen his Amended 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). 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). The court
also accepts all well pleaded allegations in the complaint as true. Anderson
v. Blake, 469 F.3d 910, 913 (10th Cir. 2006). 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).
2
asserts
violation
of
Fourteenth Amendment.
his
right
to
Due
Process
under
the
Mr. Hughes seeks injunctive relief in the
form of a court order requiring “the prison” to give Muslim
inmates in segregation the same meals that Muslims in population
receive during the Eid-ul-Fitr.
Plaintiff
alleges
that
He also seeks punitive damages.
he
has
exhausted
administrative
remedies.
The court finds that plaintiff’s claim of denial of due
process in his Amended Complaint is conclusory and nothing “more
than labels and conclusions.”
678 (2009).
Ashcroft v. Iqbal, 556 U.S. 662,
The “supporting facts” set forth by plaintiff under
this count are that “they serve Jews and others the Kosher meals
during Passover” together with his bald implication that this
shows
defendants
are
“motivated
by
evil
motive
or
intent.”
Plaintiff does not allege that any particular due process was
mandated under the circumstances or describe what element of the
requisite
due
process
was
denied.
Accordingly,
plaintiff’s
claim of denial of due process is dismissed for failure to state
facts in support.
The court further finds that plaintiff’s claim for punitive
damages is not supported by sufficient facts.
In its prior
screening order, the court explained that punitive damages “are
to be awarded only when ‘the defendant’s conduct is shown to be
motivated by evil motive or intent, or when it involves reckless
3
or callous indifference to the federally protected rights of
others.’”
Jolivet
v.
Deland,
966
F.2d
573,
577
(10th
1992)(quoting Smith v. Wade, 461 U.S. 30, 56 (1983)).
Cir.
The court
then found that Mr. Hughes had failed to allege any facts that
would entitle him to punitive damages.
The court specifically
noted that Mr. Hughes described no act on the part of either
defendant that evinced reckless or callous indifference or evil
intent.
Plaintiff was warned that unless he alleged additional
facts showing a culpable motive on the parts of both defendants,
his
claim
Amended
for
punitive
Complaint,
damages
plaintiff
would
alleges
be
dismissed.
no
facts
In
his
whatsoever
regarding the motive of either defendant under his free exercise
of religion count.
Under his denial of due process count, he
makes the previously-noted, completely conclusory statement that
“defendants conduct is motivated by evil motive or intent.”
The
court dismisses plaintiff’s claim for compensatory damages for
failure to allege any facts whatsoever in support.2
2
The court notifies Mr. Hughes that his own allegations and federal
court records reflect that he has filed two prior cases in this court that
could count as strikes under 28 U.S.C. § 1915(g).
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 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.
Id.
In Hughes
plaintiff filed
v. Pollet, Case No. 10-3173-KHV (D.Kan. May 3, 2012),
a complaint for damages asserting cruel and unusual
4
Finally,
the
court
finds
that
proper
processing
of
plaintiff’s claim for injunctive relief against defendants in
their official capacities under RLUIPA and against defendants in
their individual and official capacities under the Free Exercise
Clause cannot be achieved without additional information from
appropriate officials of the El Dorado Correctional Facility.
See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978); see also
Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991).
IT
IS
THEREFORE
BY
THE
COURT
ORDERED
that
plaintiff’s
Motion for Leave to Proceed without Prepayment of Fees (Doc. 2)
is granted.
Plaintiff is hereby assessed the remainder of the
$350.00 filing fee to be paid through payments automatically
deducted from his inmate trust fund account as authorized by 28
U.S.C. § 1915(b)(2).
The Finance Office of the Facility where
plaintiff is currently incarcerated is directed by copy of this
Order to collect from plaintiff’s account and pay to the clerk
punishment at the Kansas Juvenile Correctional Complex, which was dismissed
for failure to exhaust administrative remedies.
It has been held that
dismissal of a complaint for failure to exhaust counts as a strike.
In
Hughes v. Cawthorn, Case No. 11-3174-SAC (D.Kan. Nov. 29, 2011), plaintiff
filed a complaint for damages. Upon screening, the court entered an Order in
which it found that plaintiff’s allegations, accepted as true, failed to
state a claim. Plaintiff was ordered to show cause why the action should not
be dismissed. However, plaintiff failed to respond. It has been held that
once a court enters a finding that a complaint fails to state a claim, a
subsequent dismissal may count as a strike.
If Mr. Hughes acquires three
strikes, he will be required to “pay up front for the privilege of filing . .
. any additional civil actions,” unless he can show “imminent danger of
serious physical injury.”
28 U.S.C. 1915(g); Jennings v. Natrona County
Detention Center, 175 F.3d 775, 778 (10th Cir. 1999); see also Ibrahim v.
District of Columbia, 463 F.3d 3, 6 (D.C. Cir. 2006)(“Congress enacted the
PLRA primarily to curtail claims brought by prisoners under 42 U.S.C. 1983
and the Federal Tort Claims Act, most of which concern prison conditions and
many of which are routinely dismissed as legally frivolous.”).
5
of the court twenty percent (20%) of the prior month’s income
each time the amount in plaintiff’s account exceeds ten dollars
($10.00) until plaintiff’s outstanding filing fee obligation has
been paid in full.
Plaintiff is directed to cooperate fully
with his custodian in authorizing disbursements to satisfy the
filing fee, including but not limited to providing any written
authorization required by the custodian or any future custodian
to disburse funds from his account.
IT IS FURTHER ORDERED that plaintiff’s claim of denial of
due
process
and
plaintiff’s
claim
for
punitive
damages
are
dismissed.
IT IS FURTHER ORDERED:
(1) The clerk of the court shall prepare summons and waiver
of service forms pursuant to Rule 4(d) of the Federal Rules of
Procedure to be served by a United States Marshal or a Deputy
Marshal at no cost to plaintiff absent a finding by the court
that plaintiff is able to pay such costs.
The report required
herein, shall be filed no later than sixty (60) days from the
date of this order, and the answer shall be filed within twenty
(20) days following the receipt of that report by counsel for
defendant.
(2)
Officials
responsible
for
the
operation
of
the
El
Dorado Correctional Facility are directed to undertake a review
of the subject matter of the complaint:
6
(a) to ascertain the facts and circumstances;
(b) to consider whether any action can and should be taken
by
the
institution
to
resolve
the
subject
matter
of
the
complaint;
(C)
pending
to
determine
in
this
whether
court
or
other
like
elsewhere,
complaints,
are
related
whether
to
this
complaint and should be considered together.
(3) Upon completion of the review, a written report shall
be
compiled
which
shall
be
attached
to
and
filed
defendants’ answer or response to the complaint.
all witnesses shall be in affidavit form.
rules,
regulations,
official
with
the
Statements of
Copies of pertinent
documents
and,
wherever
appropriate, the reports of medical or psychiatric examinations
shall be included in the written report.
Any tapes of the
incident underlying plaintiff=s claims shall also be included.
(4) Authorization is granted to the officials of the Kansas
Department
of
Corrections
to
interview
all
witnesses
having
knowledge of the facts, including the plaintiff.
(5) No answer or motion addressed to the complaint shall be
filed
until
the
Martinez
report
requested
herein
has
been
prepared.
(6)
plaintiff
Discovery
has
by
received
plaintiff
and
shall
reviewed
not
commence
defendants’
answer
response to the complaint and the report required herein.
7
until
or
This
action is exempted from the requirements imposed under F.R.C.P.
26(a) and 26(f).
IT IS FURTHER ORDERED that the clerk of the court shall
enter
the
Kansas
Department
of
Corrections
as
an
interested
party on the docket for the limited purpose of preparing the
Martinez report ordered herein.
Upon the filing of that report,
the KDOC may move for termination from this action.
The
clerk
is
directed
to
send
copies
of
this
Order
to
plaintiff, to defendants, to the Secretary of Corrections, to
the Attorney General of the State of Kansas, to the Finance
Office
of
the
facility
where
plaintiff
is
currently
incarcerated, and to the court’s finance office.
IT IS SO ORDERED.
Dated this 3rd day of April, 2014, at Topeka, Kansas.
s/Sam A. Crow
U.S. Senior District Judge
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