Balderes v. Kansas, State of

Filing 7

ORDER ENTERED: Plaintiff's motion 5 for leave to proceed in forma pauperis is granted, subject to plaintiff's timely payment of an initial partial filing fee of $11.00. The State of Kansas is dismissed as a party defendant. Plaint iff's motion 2 for appointment of counsel is denied without prejudice. Plaintiff is granted twenty (20) days to show cause why the revised complaint should not be summarily dismissed as stating no claim for relief against the remaining two defendants. Signed by Senior District Judge Sam A. Crow on 11/19/2013. (Mailed to pro se party Daniel M. Balderes by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DANIEL M. BALDERES,
Plaintiff,
v.

CASE NO. 13-3057-SAC

STATE OF KANSAS, et al.,
Defendants.

O R D E R
Plaintiff initiated this action on March 27, 2013, with a pro
se pleading titled as an “ORDER TO INVESTIGATE FOR DEPRIVATION/Motion
for Petition under 28 U.S.C. § 636,” submitted while he was confined
in the Sedgwick County jail.

The court liberally construed the

pleading as once seeking relief under 42 U.S.C. § 1983, and directed
plaintiff

to

submit

a

form

complaint

that

named

appropriate

defendants, and that provided a factual basis for establishing each
defendant’s

“direct

personal

responsibility

deprivation of a constitutional right.”
F.3d 1210, 1227 (10th Cir.2006).

for

the

claimed

Trujillo v. Williams, 465

The court also directed plaintiff

to pay the district court filing fee, or to submit a motion for leave
to proceed in forma pauperis under 28 U.S.C. § 1915.
In response plaintiff submitted a “revised complaint” on court
approved form complaint, and a motion for leave to proceed in forma
pauperis.

Having reviewed those documents, the court enters the

following order.
Motion for Leave to Proceed In Forma Pauperis, 28 U.S.C. § 1915
The court grants plaintiff leave to proceed in forma pauperis

under 28 U.S.C. § 1915, subject to plaintiff’s timely payment of an
initial partial filing fee of $11.00 which is twenty percent of
plaintiff’s average deposit for the two month period he was confined
before

filing

the

instant

action.

See

28

U.S.C.

§

1915(b)(1)(prisoner granted in forma pauperis status must pay the full
district court filing fee; court assessment of the initial partial
filing fee that must be paid).

Plaintiff remains obligated to pay

the remainder of the $350.00 district court filing fee through
automatic payments from his inmate trust fund account, as authorized
by 28 U.S.C. §1915(b)(2).
Screening of the Revised Complaint, 28 U.S.C. § 1915A
Because plaintiff is a prisoner, the court must conduct an
initial screening of any action in which a prisoner seeks relief from
a governmental entity or an officer or employee of such an entity.
See 28 U.S.C. ' 1915A(a).

In conducting the screening, the court must

identify any viable claim and must dismiss any part of the action which
is frivolous, malicious, fails to state a claim upon which relief may
be granted, or seeks monetary damages from a defendant who is immune
from such relief.

See 28 U.S.C. ' 1915A(b).

A pro se party=s complaint must be given a liberal construction.
Erickson v. Pardus, 551 U.S. 89 (2007).

However, a party proceeding

pro se has Athe burden of alleging sufficient facts on which a
recognized legal claim could be based.@

Hall v. Bellmon, 935 F.2d

1106, 1110 (10th Cir.1991).
To state a claim for relief, the complaint must present
allegations of fact, assumed to be true, that Araise a right to relief
above the speculative level.@
U.S. 544, 555 (2007).

Bell Atlantic Corp. v. Twombly, 550

The complaint must present Aenough facts to

state a claim to relief that is plausible on its face.@

Id. at 570.

At this stage, the court accepts all well-leaded allegations as true
and views them in the light most favorable to the plaintiff.

Id. at

555.
In the present case, plaintiff seeks relief for the alleged
violation of his rights under the Eighth Amendment.
are named:

Three defendants

the State of Kansas and two Sedgwick County Sheriff

employees at the Sedgwick County Detention Facility, identified as
Sgt. Freeman and Sheriff Deputy Berry.
individual

defendants

acted

with

Plaintiff claims these two

deliberate

indifference

to

plaintiff’s plaintiff’s personal safety by telling other inmates that
plaintiff is a snitch and/or federal informant, and by instigating
other inmates to kill plaintiff.

Plaintiff seeks damages from all

defendants, and for defendants Freeman and Berry to be fired and
criminally prosecuted.
It appears plaintiff was arrested on criminal drug charges in
two Sedgwick County cases on February 13, 2013.

He states that in

the first week in March 2013, defendants Berry and Freeman disclosed
to other inmates that plaintiff was an informant, and offered to pay
money and release any inmate that killed plaintiff.

Plaintiff also

cites his belief that “a major Sheriff campaign contribution was made
by the cartel to have me killed.”

(Doc. 4, p.2).

Plaintiff specifically states he was placed in a cell in a living
pod that put him within arm’s reach of a person against whom plaintiff
had provided information in that person’s murder trial, and states
his request for protective custody was denied.

He also cites being

placed on suicide watch several times, in violation of his right due
process because he was not provided a fair grievance procedure.

Plaintiff further claims that “during this whole time” he was
unconstitutionally denied showers, hygiene products, access to his
mail, and communication with his family.

Plaintiff states he sought

administrative relief by attempting to go through the proper chain
of command without success because “it seems as if a major sheriff
campaign contribution was made to have me killed.”

(Doc. 4, p. 5)

Plaintiff also provides a copy of the pro se Motion to Relocate
he filed March 14, 2013, in his pending Sedgwick County criminal cases.
In that motion plaintiff states he fears for his life.

No information

is provided regarding any resolution of that pro se motion in the state
court.
State of Kansas
The court first finds the State of Kansas should be dismissed
as a party in this matter.

But for exceptions not applicable in this

case,1 “the Eleventh Amendment prohibits a citizen from filing suit
against a state in federal court.”
1180

(10th

Cir.2002).

Ruiz v. McDonnell, 299 F.3d 1173,

“Eleventh

Amendment

immunity

applies

regardless of whether a plaintiff seeks declaratory or injunctive
relief, or money damages.”

Steadfast Ins. Co. v. Agricultural Ins.

Co, 507 F.3d 1250, 1252 (10th Cir.2007)(citation omitted).
Defendants Freeman and Berry
The court also finds plaintiff’s prayer for the criminal
prosecution and termination of defendants Freeman and Berry must be
dismissed.

A private individual generally has no federal right to

the prosecution of another. Diamond v. Charles, 476 U.S. 54, 64
(1986)(quotation marks and citation omitted); accord Doyle v. Okla.
1

Congress did not abrogate the states’ Eleventh Amendment immunity when it
enacted § 1983. See Quern v. Jordan, 440 U.S. 332, 345 (1979). And the State of
Kansas has not waived its Eleventh Amendment immunity and consented to be sued under
42 U.S.C. § 1983. Connelly v. State Highway Patrol, 271 Kan. 944, 962 (2001).

Bar Ass'n, 998 F.2d 1559, 1566 (10th Cir.1993).

See also Winslow v.

Romer, 759 F.Supp. 670, 673 (D.Colo.1991)("Private citizens generally
have no standing to institute federal criminal proceedings.").
To the extent plaintiff seeks damages on allegations that
defendants Freeman and Berry acted with deliberate indifference to
plaintiff’s personal safety, the court finds plaintiff’s allegations
are insufficient to establish a plausible constitutional claim.
“The

Eighth

Amendment's

prohibition

on

cruel

and

unusual

punishment imposes a duty on prison officials to provide humane
conditions

of

confinement,

including

adequate

food,

clothing,

shelter, sanitation, medical care, and reasonable safety from serious
bodily harm.”

Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir.2008)

(citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)); Ramos v. Lamm,
639 F.2d 559, 566 (10th Cir.1980)).

The Tenth Circuit Court of

Appeals discussed the constitutional claim of failure to protect as
follows:
“[P]rison officials have a duty ... to protect prisoners from
violence at the hands of other prisoners.

A prison official's

deliberate indifference to a substantial risk of serious harm
to an inmate violates the Eighth Amendment.... A prison official
who knows of and disregards an excessive risk to inmate health
or safety is deliberately indifferent for these purposes.
Therefore, in order to establish a cognizable Eighth Amendment
claim for failure to protect, a plaintiff must show that he is
incarcerated under conditions posing a substantial risk of
serious harm, the objective component, and that the prison
official

was

deliberately

indifferent

to

his

safety,

the

subjective component.”

Benefield v. McDowall, 241 F.3d 1267, 1270-71 (10th Cir.2001)

(quotation marks and citations to Farmer omitted).
While the Tenth Circuit held in Benefield that an inmate's
allegation that he had been labeled a “snitch” was, by itself,
sufficient to meet the standard for a violation of the Eighth
Amendment, 241 F.3d at 1271, it has clarified that “allegations of
a prison officer's deliberate disclosure of dangerous information
about an inmate's status are sufficient to state a claim under the
Eighth Amendment provided the alleged danger is facially concrete and
plausible enough to satisfy basic pleading standards.”

Brown v.

Narvais, 265 Fed. Appx. 734, 736 (10th Cir. Feb. 19, 2008) (unpublished
opinion).

Plaintiff’s allegations fail to do so in this case.

Plaintiff’s allegations identify only a one week period at the
beginning of March, and in his “revised complaint” filed May 31, 2013,
he expressly states he has had no problems after that week.

While

the fear, torment, and suspicion plaintiff suffered that one week may
have

been

real

to

plaintiff,

plaintiff’s

allegations

must

be

considered in light of their brief duration without any further
consequence, plaintiff’s admission that his actions during that
period raised significant mental health concerns 2 and plaintiff’s
overriding

conclusory

claim

that

outside

influencing the actions of jail staff.

criminal

forces

were

While the court does not

condone the conduct plaintiff attributes to defendants Freeman and
Berry,

the

complaint

and

“revised

complaint”

fail

to

provide

sufficient allegations to plausibly find that either of these
defendants caused plaintiff to be subjected to a substantial risk of

2

Plaintiff cites, for instance, defacing the paint on a door to carve in the
words “Sheriff conspiracy killed Dan Bald,” carving his cell numbers into his leg
to establish where he had been confined, and using feces to write on the walls that
he was not suicidal and would be killed by inmates or deputies. (Doc. 4-1, pp. 20,
22-23)

serious harm.
And to the extent plaintiff complains that he was denied an
adequate grievance process to address protective custody and mental
health issues, and that he was deprived of showers, hygiene products,
access to his mail, and communication with his family, the court finds
no viable claim is presented upon which relief can be granted under
§ 1983.

These broad allegations are both vague and conclusory, and

lack any reference to the personal participation of either defendant
Freeman or Berry.
Cir.1991)(“A

pro

See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
se

litigant's

conclusory

allegations

without

supporting factual averments are insufficient to state a claim upon
which relief can be based.”); Fogarty v. Gallegos, 523 F.3d 1147, 1162
(10th Cir.2008)("Individual liability under § 1983 must be based on
personal

involvement

in

the

alleged

constitutional

violation.")(quotation omitted).
Thus for the reasons stated above, the “revised complaint” is
subject to being summarily dismissed as stating no claim for relief
against defendants Freeman or Berry.

28 U.S.C. § 1915A(b); 28 U.S.C.

§ 1915(e)(2)(B)(ii).
Notice and Show Cause Order to Plaintiff
Accordingly, the court directs plaintiff to show cause why the
revised complaint should not be summarily dismissed as stating no
claim for relief against defendants Freeman and Berry.

The failure

to file a timely response may result in the complaint being dismissed
without further prior notice.
IT IS THEREFORE ORDERED that plaintiff’s motion for leave to
proceed in forma pauperis (Doc.5) is granted, subject to plaintiff’s
timely payment of an initial partial filing fee of $11.00.

The

failure to do so in a timely matter may result in leave to proceed
in forma pauperis being revoked, and the complaint dismissed without
prejudice based upon plaintiff’s noncompliance with the 28 U.S.C. §
1915(b)(1), without further prior notice.
IT IS FURTHER ORDERED the State of Kansas is dismissed as a party
defendant.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment
of counsel (Doc. 2) is denied without prejudice, and that plaintiff
is granted twenty (20) days to show cause why the revised complaint
(Doc. 4) should not be summarily dismissed as stating no claim for
relief against the remaining two defendants.
IT IS SO ORDERED.
DATED:

This 19th day of November 2013 at Topeka, Kansas.

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