Gillespie (ID 102828) v. Griffiths et al

Filing 5

ORDER ENTERED: Plaintiff is granted thirty (30) days in which to submit to the court an initial partial filing fee of $18.50. Any objection to this order must be filed on or before the date payment is due. The failure to pay the fees as requi red herein may result in the dismissal of this action without prejudice. Within the same thirty-day period, plaintiff is required to show cause why this action should not be dismissed for failure to state a federal constitutional claim. Plaintiff's motion 3 to appoint counsel is denied. Signed by Senior District Judge Sam A. Crow on 2/20/2013. (Mailed to pro se party Christopher A. Gillespie by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CHRISTOPHER A. GILLESPIE,
Plaintiff,
v.

CASE NO.

13-3012-SAC

JIM D. GRIFFITHS,
Special Agent, 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 who is currently confined at the Sedgwick County
Jail in Wichita, Kansas.

Plaintiff is required to pay an initial

partial filing fee and to show cause why his complaint should not
be dismissed for failure to state a claim.

CLAIMS AND ALLEGATIONS
Plaintiff complains of events that allegedly occurred while he
was confined at the El Dorado Correctional Facility, El Dorado,
Kansas (EDCF). As Count I of his complaint, Mr. Gillespie claims that
his Fourth Amendment rights were violated by a “warrantless search
and seizure into (his) legal mail.”

As factual support for this

claim, he alleges that he submitted a legal letter in connection with
an investigation at the EDCF, which he then admitted was a mistake;
and that the Intelligence and Investigation Department (I&I) refused

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to return “the written communication” even though they had agreed
to do so after the investigation was completed.
As Count II, plaintiff claims that he has been subjected to
“sexual preference discrimination.”

In support, he alleges denial

of phone use, showers, timely investigation and unfair treatment.
Mr.

Gillespie

seeks

return

of

his

mail

and

$1000

for

psychological worry and stress.

INITIAL PARTIAL FILING FEE ASSESSED
The statutory fee for filing a civil rights complaint in federal
court is $350.00.

Plaintiff has filed a Motion to Proceed without

Prepayment of Fees (Doc. 2) and has attached an Inmate Account
Statement in support as statutorily mandated.

Under 28 U.S.C. §

1915(b)(1) being granted such leave does not relieve an inmate from
the obligation to pay the full filing fee.

Instead, it merely

entitles an inmate to proceed without prepayment of the full fee,
and to pay the filing fee over time through payments deducted
automatically from his inmate trust fund account as authorized by
28 U.S.C. § 1915(b)(2).

Furthermore, § 1915(b)(1), requires the

court to assess an initial partial filing fee of twenty percent of
the greater of the average monthly deposits or average monthly
balance in the prisoner’s account for the six months immediately
preceding the date of filing of a civil action.

Having examined the

records of plaintiff’s account, the court finds the average monthly
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deposit to plaintiff’s account during the relevant time was $93.65,
and the average monthly balance was $26.15.

The court therefore

assesses an initial partial filing fee of $18.50, twenty percent of
the average monthly deposit, rounded to the lower half dollar.
Plaintiff must pay this initial partial filing fee before this action
may proceed further, and will be given time to submit the fee to the
court.

His failure to submit the initial fee in the time allotted

may result in dismissal of this action without further notice.

SCREENING
Because Mr. Gillespie 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.

1915(e)(2)(B).

28

U.S.C.

§

1915A(a)

and

(b);

28

U.S.C.

§

“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.”
U.S. 89, 94 (2007).

Erickson v. Pardus, 551

The court also accepts all well-pleaded
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allegations in the complaint as true.
910, 913 (10th Cir. 2006).

Anderson v. Blake, 469 F.3d

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).
litigant’s

“conclusory

allegations

without

supporting

A pro se
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).

Having applied these standards to the complaint filed herein, the
court finds that it is subject to being dismissed for the following
reasons.

DEPARTMENT NOT PROPER DEFENDANT
In the caption of his complaint, plaintiff names 2 defendants,
one of which is the EDCF “Intelligence-Investigations Dept.”

A

department is not a “person” and is therefore not a proper defendant
in a lawsuit under § 1983.

FAILURE TO STATE A CLAIM
The most that can be discerned from plaintiff’s allegations in
Count I is that he gave a piece of mail to defendant Griffiths prior
to an internal prison investigation, and Griffiths refused to return
it.

This mail is variously referred to as attorney letter, legal

mail, the document, and legal material; however, plaintiff provides
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no hint as to its content.

His assertion that this amounted to a

violation of the Fourth Amendment is not supported by plaintiff’s
sparse allegations.

There was no search or seizure since he

voluntarily gave the letter to the defendant.
Plaintiff’s allegations might be liberally construed as seeking
return of a piece of attorney mail.

However, he does not allege facts

indicating that the failure to return this mail resulted in a denial
of access to the courts by causing actual injury to a non-frivolous
lawsuit filed by him.

Nor are his allegations sufficient to state

a claim of deprivation of property without due process, given that
administrative remedies and state tort remedies are available to
redress property loss.
Plaintiff’s claim of “sexual preference discrimination” is
totally devoid of factual support, including dates, participants and
circumstances.

Accordingly, it fails to state a claim under § 1983.

The same is true of plaintiff’s bald allegation of profiling.
Finally, the court finds that plaintiff’s claim for damages for
“psychological worry and stress” is barred by the limitation on
recovery set forth in 42 U.S.C. § 1997e(e).

Section 1997e(e)

provides that “[n]o federal civil action may be brought by a prisoner
. . . for mental or emotional injury suffered while in custody without
a prior showing of physical injury.”

Plaintiff does not allege a

physical injury.
Mr. Gillespie is required to show cause why this action should
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not be dismissed for failure to state a claim.

If he fails to show

good cause within the time specified by the court, this action may
be dismissed without further notice.

MOTION TO APPOINT COUNSEL
The court has considered plaintiff’s Motion to Appoint Counsel
(Doc. 3) and finds it should be denied.

There is no right to

assistance of counsel in a civil rights lawsuit, and it appears that
this action has no merit.

IT IS THEREFORE BY THE COURT ORDERED that plaintiff is granted
thirty (30) days in which to submit to the court an initial partial
filing fee of $18.50.

Any objection to this order must be filed on

or before the date payment is due.

The failure to pay the fees as

required herein may result in dismissal of this action without
prejudice.
IT IS FURTHER ORDERED that within the same thirty-day period,
plaintiff is required to show cause why this action should not be
dismissed for failure to state a federal constitutional claim.
IT IS FURTHER ORDERED that plaintiff’s Motion to Appoint Counsel
(Doc. 3) is denied.
IT IS SO ORDERED.
Dated this 20th day of February, 2013, at Topeka, Kansas.

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

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