Rucker (ID 82532) v. Bean et al

Filing 9

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 2 for leave to proceed in forma pauperis is granted. This matter is dismissed for failure to state a claim upon which relief may be granted. Plaintiff's motion 5 for the appointment of counsel is denied as moot. Signed by Senior District Judge Sam A. Crow on 10/8/2013. (Mailed to pro se party Matthew Rucker by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MATTHEW RUCKER,
Plaintiff,
v.

CASE NO. 13-3027-SAC

MORGAN H. BEAN, et al.,
Defendants.

MEMORANDUM AND ORDER

This matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff submitted the initial partial filing fee as
directed, and the court grants leave to proceed in forma pauperis.
Screening
A federal court must screen a complaint brought by a prisoner
seeking relief against a governmental entity or an officer or employee
of such an entity and must consider whether summary dismissal of the
matter is appropriate. 28 U.S.C. § 1915A(a). The court must dismiss
such a complaint, or any part of it, that asserts a claim that is
frivolous or malicious, fails to state a claim upon which relief may
be granted, or seeks monetary relief from a defendant who is immune
from such relief. 28 U.S.C. § 1915A(b).
A plaintiff must present sufficient facts to suggest that he is
entitled to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007). The “[f]actual allegations must be enough to raise a right
to relief above the speculative level.” Id. at 555.
The complaint alleges that on July 19, 2011, plaintiff and
defendant Bean, a corrections officer, had a heated discussion

concerning plaintiff’s housing assignment and Bean ordered plaintiff
out of his office. As plaintiff turned to leave, Bean slammed the
office door, catching plaintiff’s fingers. Bean ordered plaintiff to
return to his cell.
Plaintiff reported this to his Unit Team officer Wildermouth,
who arranged for plaintiff to receive a pass for a medical visit. He
saw

medical personnel on the following day and

received

pain

medication and an order for an X-ray. He later filed an administrative
grievance

against

defendant

Bean

which

was

resolved

against

plaintiff.1
Plaintiff alleges the acts of defendants violate the policies
of the Kansas Department of Corrections and Kansas statutes that
prohibit the mistreatment or neglect of a patient or resident. He seeks
declaratory and injunctive relief and damages.
To the extent plaintiff claims defendant Bean violated facility
policies and state statutory law, he states no claim for relief. To
establish a claim under § 1983, a plaintiff must allege the deprivation
of a federally-protected right by one acting under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988). A violation of state law does
not state such a claim. See Malek v. Haun, 26 F.3d 1013, 1016 (10th
Cir. 1994). Likewise, the violation of a prison regulation generally
does not give rise to a claim under §1983. Trujillo v. Williams, 465
F.3d 1210, 1214 n.2 (10th Cir. 2006). Accordingly, the claims against
defendant Bean are subject to dismissal.
Plaintiff also names as defendants Nathan Aguilar, a corrections
1

The grievance investigation determined that after the incident, plaintiff left
the cellhouse for a callout and did not immediately report the injury. Medical staff
found that his right middle finger had mild swelling and minor bruising. He was
advised to use ice and, at the time of the investigation in mid-August, had not sought
additional medical attention. (Doc. 1, Attach. p. 13.)

officer; Lindsey Wildermouth, a Unit Team member; R.E. Jewell, a Unit
Team Manager; Steven Gandy, a corrections officer; Chris Ross, a
grievance officer; Warden David McKune; Secretary of Corrections Ray
Roberts; Governor Brownback; and the State of Kansas.
A close review of the complaint shows the following acts by these
defendants: defendant Aguilar stated to plaintiff that “bad things
happen to inmates like Plaintiff who don’t do what officers say” (Doc.
1, p. 3); defendant Gandy told plaintiff to go to his cell after the
incident with defendant Bean (id., p. 4); defendant Jewell told
plaintiff to go to his cell as directed and to file a grievance if
he chose to (id.); and defendant Wildermouth arranged for plaintiff
to be referred to medical staff (id.).
While the complaint contains no specific allegations against the
remaining defendants, it appears defendants Ross, McKune, and Roberts
were involved, either personally or by a designee, in the processing
of plaintiff’s grievances.
The plaintiff’s allegations against defendants Aguilar, Gandy,
Jewell, and Wildermouth do not state a claim for relief. At most,
Aguilar’s remarks might be construed as a threat. However, a guard’s
verbal abuse or threat does not violate the Constitution. McBride v.
Deer, 240 F.3d 1287, 1291 n.3 (10th Cir. 2001). Next, the complaint
makes no specific allegation concerning the conduct of Gandy, Jewell,
and Wildermouth. Their conduct appears to involve entirely routine
directions to a prisoner, and plaintiff does not present any plausible
basis for liability under the Twombly standard.
The allegations against defendants Ross, Roberts, and McKune
appear to arise from their participation in the administrative
grievance process. However, the denial of a grievance does not

establish a defendant’s personal participation in an allegedly
unconstitutional act and does not give rise to liability under § 1983.
Stewart v. Beach, 701 F.3d 1322, 1328 (10th Cir. 2012)(“Whatever
knowledge [the warden] may have had when he denied the appeal, his
only

involvement

was

to

deny

the

grievance

appeal,

which

is

insufficient for § 1983 liability.”)
Finally, plaintiff states no claim for relief against Governor
Brownback or the State of Kansas. Not only does the Eleventh Amendment
bar a claim in federal court for damages against a state and a state
official sued in an official capacity, Kentucky v. Graham, 473 U.S.
159, 165 (1985), there is no allegation in the complaint of any act
or omission by these defendants.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motion for
leave to proceed in forma pauperis (Doc. 2) is granted. Collection
action shall continue pursuant to 28 U.S.C. § 1915(b)(2) until
plaintiff satisfies the $350.00 filing fee.
IT IS FURTHER ORDERED this matter is dismissed for failure to
state a claim upon which relief may be granted.
IT IS FURTHER ORDERED plaintiff’s motion for the appointment of
counsel (Doc. 5) is denied as moot.
Copies of this order shall be transmitted to the plaintiff and
the Finance Office of the facility where he is incarcerated.
IT IS SO ORDERED.
DATED:

This 8th day of October, 2013, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge