Batista v. Kansas Department of Corrections

Filing 5

ORDER ENTERED: Plaintiff's motion 2 for leave to proceed in forma pauperis is granted. Plaintiff's motion 4 for appointment of counsel is denied without prejudice. Plaintiff is granted twenty (20) days to show cause why the complaint should not be summarily dismissed. Signed by Senior District Judge Sam A. Crow on 11/5/2013. (Mailed to pro se party Raul Batista by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

RAUL BATISTA,
Plaintiff,
v.

CASE NO. 13-3063-SAC

KANSAS DEPARTMENT OF CORRECTIONS,
Defendant.

O R D E R
This matter comes before the court on a complaint seeking relief
under 42 U.S.C. § 1983, filed pro se by a prisoner incarcerated in
a Kansas Correctional Facility.

Also before the court is plaintiff’s

motion for leave to proceed in forma pauperis, and motion for
appointment of counsel.
Motion for Leave to Proceed In Forma Pauperis
Plaintiff must pay the full $350.00 filing fee in this civil
action.

See 28 U.S.C. ' 1915(b)(1)(prisoner bringing a civil action

or appeal in forma pauperis is required to pay the full filing fee).
If granted leave to proceed in forma pauperis, plaintiff is entitled
to pay this filing fee over time, as provided by payment of an initial
partial filing fee to be assessed by the court under 28 U.S.C. '
1915(b)(1) and by periodic payments from plaintiff's inmate trust fund
account as authorized in 28 U.S.C. ' 1915(b)(2).

Pursuant to 28 U.S.C.

' 1915(b)(1), the court is required 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 considered the sparse financial records provided by
plaintiff, the court finds no initial partial filing fee may be imposed
at this time due to plaintiff's limited resources, and grants
plaintiff leave to proceed in forma pauperis.

See 28 U.S.C. '

1915(b)(4)(where inmate has no means to pay initial partial filing
fee, prisoner is not to be prohibited from bringing a civil action).
Plaintiff remains obligated to pay the full $350.00 district court
filing fee in this civil action, through payments from his inmate trust
fund account as authorized by 28 U.S.C. ' 1915(b)(2).
Motion for Appointment of Counsel
Generally, there is no constitutional right to the appointment
of counsel in a civil matter.

However, the court has the discretion

to request counsel for an indigent party.

28 U.S.C. § 1915(e)(1).

In exercising this discretion, the court must consider a variety of
factors, including the apparent merits of the case, the legal and
factual issues involved, and the party’s ability to present the
claims.

Long v. Shillinger, 927 F.2d 525,527 (10th Cir.1991).

In

the present case, plaintiff states the English language is difficult
for him and that he has trouble securing translation help.

However,

having examined the record and the claims plaintiff is attempting to
assert, the court declines to appoint counsel at this point in the
development of the matter.

The court therefore will deny the request

at this time.
Screening the Complaint, 28 U.S.C. § 1915A
A federal 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.
28 U.S.C. ' 1915A(b).

See

While a pro se complaint must be given a liberal

construction, Erickson v. Pardus, 551 U.S. 89 (2007), plaintiff still
bears 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.
Having considered the complaint, the court finds the complaint
is subject to being summarily dismissed for the following reasons.
Plaintiff complains of his continuing segregated confinement as
an “Other Security Risk” (OSR), names as an inmate presenting a risk
to female staff.

Plaintiff’s record includes rape and escape

convictions in 1989, prison discipline in 2005 for lewd acts and undue
familiarity, and more recent discipline in May, July, and August in
2011.

Plaintiff also acknowledges he is subject to a 1994 ICE

deportation detainer, but believes he would not be deported back to

Cuba.

Nonetheless, plaintiff states that his OSR status prevents him

from obtaining more favorable consideration by the parole board.
also

appears

to

generally

complain

of

inadequate

He

language

accommodation during his prison disciplinary proceedings.
The

court

finds

these

allegations

present

no

claim

of

constitutional significance for purposes of proceeding under § 1983.
An inmate's classification generally does not implicate a
liberty interest protected by the Due Process Clause.

See e.g.

Meachum v. Fano, 427 U.S. 215, 225 (1976)(Due Process Clause does not
bar inmate's transfer to another prison with more restrictive
conditions of confinement).

It is well recognized that "[t]he due

process rights of prisoners are subject to reasonable limitation or
restriction in light of the legitimate security concerns of the
institution ..., and the transfer of an inmate to less amenable and
more restrictive quarters for nonpunitive reasons is well within the
terms of confinement ordinarily contemplated by a prison sentence."
Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir.1996)(internal
quotation marks and citations omitted).

See also Sandin v. Conner,

515 U.S. 472, 482 (1995)(“federal courts out to afford appropriate
deference and flexibility to [prison] officials trying to manage a
volatile environment”).
And plaintiff does not does allege his segregated confinement
has lengthened his service of the sentence imposed.

See Wilson v.

Jones, 430 F.3d 1113, 1120-21 (10th Cir.2005)(liberty interest arises
upon a showing of the penalty being lengthened).

Nor does plaintiff

allege a factual basis for plausibly finding that his segregated
confinement involves a significant and atypical hardship, see Sandin,

515 U.S. at 484 (liberty interest arises upon a showing of an “atypical
and significant hardship … in relation to the ordinary incidents of
prison life”), or that he was or is being subjected to conditions
constituting cruel and unusual punishment.
Moreover, plaintiff does not identify the relief being sought
in

this

action.

Significantly,

the

Eleventh

Amendment

bars

plaintiff’s suit against the Kansas Department of Corrections, the
sole defendant named in the complaint.

See Kentucky v. Graham, 473

U.S. 159, 165-67 (1985) (Eleventh Amendment doctrine of sovereign
immunity bars actions in federal court against a State and its
agencies).
Notice and Show Cause Order to Plaintiff
Thus the court directs plaintiff to show cause why the complaint
should not be summarily dismissed because this action is barred by
sovereign immunity, and because plaintiff’s allegations the sole
defendant named in the complaint state no claim upon which relief may
be granted under 42 U.S.C. § 1983.

28 U.S.C. § 1915A(b); 28 U.S.C.

§ 1915(e)(2)(B). The failure to file a timely response may result in
the complaint being summarily dismissed for the reasons stated herein,
and without further prior notice to plaintiff.
IT IS THEREFORE ORDERED that plaintiff=s motion for leave to
proceed in forma pauperis (Doc. 2) is granted, with payment of the
$350.00 district court filing fee to proceed as authorized by 28 U.S.C.
' 1915(b)(2).
IT IS FURTHER ORDERED that plaintiff’s motion for appointment
of counsel (Doc. 4) is denied without prejudice.
IT IS FURTHER ORDERED that plaintiff is granted twenty (20) days

to show cause why the complaint should not be summarily dismissed
pursuant to 28 U.S.C. § 1915A(b) and 28 U.S.C. § 1915(e)(2)(B).
A copy of this order shall be mailed to plaintiff and to the
Centralized Inmate Banking office for the Kansas Department of
Corrections.
IT IS SO ORDERED.
DATED:

This 5th day of November 2013 at Topeka, Kansas.

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