Madonia (ID 84376) v. Lansing Correctional Facility et al

Filing 2

MEMORANDUM AND ORDER ENTERED: Plaintiff is given thirty (30) days in which to satisfy the filing fee by either paying the appropriate fee in full or submitting a properly-supported motion to proceed without prepayment of fees. Within the same thirt y-day period, plaintiff is required to show cause why this action should not be dismissed for lack of jurisdiction and as frivolous. Signed by Senior District Judge Sam A. Crow on 2/27/2013. (Mailed to pro se party Shawn K. Madonia by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SHAWN K. MADONIA,
Plaintiff,
v.

CASE NO.

13-3026-SAC

LANSING CORRECTIONAL
FACILITY, et al.,
Defendants.
MEMORANDUM AND ORDER
This pro se action was filed as a petition for mandamus citing
K.S.A. 60-801, by an inmate of the Lansing Correctional Facility,
Lansing, Kansas (LCF).

Plaintiff seeks an order compelling state

prison officials to house him in administrative segregation (ad seg)
and to refrain from using the prison disciplinary system to coerce
him to move to general population (GP).

Having examined the

materials filed, the court finds that plaintiff is not entitled to
the mandamus relief he seeks.

Plaintiff is required to satisfy the

filing fee and given the opportunity to cure deficiencies.

If he

fails to comply within the time specified, this action may be
dismissed without further notice.

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

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28

U.S.C. § 1914.

Plaintiff has neither paid this fee nor submitted

a Motion to Proceed without Prepayment of Fees.

A prisoner seeking

to proceed without prepayment must submit an affidavit that includes
a statement of all assets and aver that he is unable to pay the fee.
28 U.S.C. § 1915(a)(1).

Furthermore, § 1915 requires the prisoner

to 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 action “obtained from the
appropriate official of each prison at which the prisoner is or was
confined.”

28 U.S.C. § 1915(a)(2).

The Tenth Circuit has held

“that petitions for writ of mandamus are included within the meaning
of the term ‘civil action’ as used in § 1915” where habeas matters
are not the underlying concern.

Green v. Nottingham, 90 F.3d 415,

418 (10th Cir. 1996); cf. York v. Terrell, 344 Fed.Appx. 460, 462 (10th
Cir. 2009)(unpublished);1 see In re Grant, 635 F.3d 1227, 1230-32
(D.C. Cir. 2011)(prisoners must pay the entire fee in mandamus
actions under the Prisoner Litigation Reform Act).
Plaintiff is forewarned that under 28 U.S.C. § 1915(b)(1), being
granted leave to proceed without prepayment of fees does not relieve
him of the obligation to pay the full filing fee.

Instead, it

entitles him to pay the fee over time through payments automatically
deducted from his inmate trust fund account as authorized by §
1

Unpublished opinions are cited herein for reasoning and not as binding
precedent.

2

1915(b)(2).2

This action may not proceed until plaintiff satisfies

the filing fee prerequisites for this action.

FACTUAL BACKGROUND
Plaintiff has filed a 3-page complaint with 62 pages of exhibits
attached.

Attached

complaint.

exhibits

may

be

considered

part

of

the

Plaintiff’s allegations and exhibits indicate the

following factual background.

On May 19, 2012, he was placed in ad

seg “due to problems with black inmates who are members of a gang
called Bloods,” and “these problems” were under investigation for
7 months.

“EAI Investigator Haehl claims to have conducted” the

investigation and to have found that plaintiff’s claims with “Biker
Gang Members” were unfounded.
with

Biker

Gang

Members.

However, plaintiff never had problems
Plaintiff

has

submitted

numerous

grievances to many different prison officials claiming that he will
be in danger from Bloods in GP and requesting protection but has
received “no positive answers.”

During the grievance process,

plaintiff was found to be a member of a White Supremacist hate group.
Plaintiff was ordered by COII Graham to go to the “Maximum Facility
population,” even though Graham was aware of plaintiff’s “safety
issues.”

Plaintiff was threatened with disciplinary action if he

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Pursuant to § 1915(b)(2), the Finance Office of the facility where plaintiff
is currently confined will be authorized to collect twenty percent (20%) of the
prior month’s income each time the amount in plaintiff’s account exceeds ten
dollars ($10.00) until the filing fee has been paid in full.

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refused to go to GP, and given a disciplinary report (DR) when he
refused.
Plaintiff claims that the facility and staff have ignored his
form 9s and grievances and shown deliberate indifference to his
safety issues.

The court is asked to order Lansing Correctional

Facility and Kansas Department of Corrections to acknowledge his
request for protection and direct staff to stop coercing him into
a potentially dangerous situation through use of the disciplinary
process.

He also asks the court to order the Secretary of

Corrections to conduct an impartial investigation into retaliatory
actions against plaintiff.

SCREENING
Because plaintiff 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 upon which
relief may be granted, or seeks relief from a defendant immune from
such relief.

28 U.S.C. § 1915A (a) and (b).

Having examined all

materials filed, the court finds that this action is subject to being
dismissed as frivolous and for failure to state a claim.
v.

U.S.

Parole

Com’n,

319

Fed.Appx.

742

(10th

Cir.

Gabriel
2009)

(unpublished) (affirming dismissal of mandamus petition as frivolous
under § 1915(e)(2)(B)); Fay v. U.S., 389 Fed.Appx. 802, 803-04 (10th
Cir. 2010)(unpublished)(Action before district court and this appeal
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found to be frivolous and to count as strikes where appellant failed
to demonstrate that he was entitled to the “extraordinary remedy”
of a writ of mandamus.).

FAILURE TO STATE A CLAIM
This court is without jurisdiction to grant mandamus relief
against state officials.

The Kansas mandamus statute, K.S.A.

60-801, relied upon by plaintiff as the legal authority for this
action does not give the federal court authority to issue a mandamus
to state officials.

Nor does the federal mandamus statute, 28 U.S.C.

§ 1361, give this court such authority.

Instead, it gives district

courts “original jurisdiction of any action in the nature of mandamus
to compel an officer or employee of the United States or any agency
thereof to perform a duty owed to the plaintiff.”

Amisub (PSL), Inc.

v. Colorado Dep't of Soc. Servs., 879 F.2d 789, 790 (10th Cir.
1989)(“No relief against state officials or state agencies is
afforded by § 1361.”); Sockey v. Gray, 159 Fed. Appx. 821, 822 (10th
Cir. 2005)(unpublished)(“Federal courts are without jurisdiction to
grant a writ of mandamus against state and local officials.”).
Neither named defendant, nor any official mentioned in the pleading
is an officer, employee, or agency of the United States.
Furthermore, “the remedy of mandamus is a drastic one, to be
invoked only in extraordinary situations.”

Allied Chemical Corp.

v. Daiflon, Inc., 449 U.S. 33, 34 (1980)(per curiam).
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To grant

mandamus relief, the court must find that plaintiff has a clear right
to the relief sought, the defendant has a plainly defined and
peremptory duty to perform the action in question, and no other
adequate remedy is available.

See Heckler v. Ringer, 466 U.S. 602,

616 (1984)(“The common-law writ of mandamus, as codified in 28 U.S.C.
§ 1361 . . . is intended to provide a remedy for a plaintiff only
if he has exhausted all other avenues of relief and only if the
defendant owes him a clear nondiscretionary duty.”); Wilder v.
Prokop, 846 F.2d 613, 620 (10th Cir. 1988).
Mandamus is patently inappropriate in this case.

When a

decision is committed to the discretion of an agency official, as
are the administrative decisions regarding housing assignment and
security classification, a litigant generally will not have a clear
and indisputable right to any particular result.

See Daiflon, 449

U.S. at 36; Armstrong v. Cornish, 102 Fed.Appx. 118, 120 (10th Cir.
2004)(unpublished).

Mr. Madonia’s allegations taken as true fail

to demonstrate that he has a clear right to the relief he seeks, that
defendants have a duty to perform the acts he seeks to have compelled,
or that no other adequate remedy is available.

Accordingly, the

court concludes that Mr. Madonia’s petition fails to state a claim
upon which relief may be granted and is frivolous.

See 28 U.S.C.

§ 1915(e)(2)(B)(ii).
Plaintiff’s claim that prison officials are retaliating against
him for filing grievances or this lawsuit is nothing more than a
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conclusory statement.

A prison official may not retaliate against

an inmate for exercising a constitutional right.
Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998).

See Peterson v.

However, plaintiff

has not alleged specific facts which show retaliation because of his
exercise of constitutional rights.

He also fails to show that the

“but for” cause of the decision to move him to GP and charge him with
a DR for refusing to obey orders was a retaliatory motive on the part
of a particular defendant.

On the other hand, he exhibits prison

policy statements indicating that prison officials are directed to
transfer inmates out of ad seg and back to GP as soon as possible.
Plaintiff’s complaint that his grievances have been improperly
ignored is belied by his own exhibits and allegations, which indicate
that an investigation was conducted into his concerns for his safety
in GP.

Mr. Madonia has refused to accept the administrative actions

and decisions taken on his initial grievances.
allegations

further

suggest

established

procedures

for

that

he

seeking

administrative remedies process.

has

relief

not

His exhibits and
adhered

through

the

to

the

prison

He blitzed numerous people with

the same grievance on the same day rather than submitting a single
grievance to the appropriate official, waiting for a response or the
time to run at each level, and then filing an appropriate appeal.
It is neither illegal nor improper for prison officials to disregard
abusive grievances.
If plaintiff fails to allege sufficient additional facts to
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state a claim that is not frivolous, the dismissal of this action
may count as a “prior occasion” (or “strike”) under the three strikes
provision of 28 U.S.C. § 1915(g).

See Green v. Nottingham, 90 F.3d

415, 418 (10th Cir. 1996).
IT IS THEREFORE BY THE COURT ORDERED that plaintiff is given
thirty (30) days in which to satisfy the filing fee by either paying
the appropriate fee in full or submitting a properly-supported motion
to proceed without prepayment of fees.
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 lack of jurisdiction and as frivolous.
IT IS SO ORDERED.
Dated this 27th day of February, 2013, at Topeka, Kansas.

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

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