Salary (ID 96349) v. Robert et al

Filing 5

MEMORANDUM AND ORDER granting 3 Motion for Leave to Proceed in forma pauperis. Collection action shall continue pursuant to 28 U.S.C. § 1915(b)(2) until plaintiff satisfies the $350.00 filing fee. On or before November 15, 2013, plaint iff shall show cause why his claim of prolonged exposure to lighting should not be dismissed due to his failure to fully exhaust the grievance procedure. Plaintiff's claims alleging a falsified disciplinary report and a due process violation dur ing the disciplinary proceedings are dismissed for failure to state a claim for relief. Plaintiff's motion for status update 4 is denied as moot. Signed by District Judge Sam A. Crow on 10/16/2013. Mailed to pro se party Mark T. Salary by regular mail. (ms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MARK T. SALARY,
Plaintiff,
v.

CASE NO. 13-3074-SAC

RAY ROBERT, et al.,
Defendants.

MEMORANDUM AND ORDER

This matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff, a prisoner in state custody, proceeds pro se and
seeks leave to proceed in forma pauperis.
The motion to proceed in forma pauperis
This motion is governed by 28 U.S.C. § 1915(b). Because plaintiff
is a prisoner, he must pay the full filing fee in installment payments
taken from his prison trust account when he “brings a civil action
or files an appeal in forma pauperis[.]” § 1915(b)(1). Pursuant to
§ 1915(b)(1), the court must assess, and collect when funds exist,
an initial partial filing fee calculated upon the greater of (1) the
average monthly deposit in his account or (2) the average monthly
balance in the account for the six-month period preceding the filing
of the complaint. Thereafter, the plaintiff must make monthly payments
of twenty percent of the preceding month’s income in his institutional
account. § 1915(b)(2). However, a prisoner shall not be prohibited
from bringing a civil action or appeal because he has no means to pay
the initial partial filing fee. § 1915(b)(4).

The court has examined the materials supplied by the plaintiff
and grants provisional leave to proceed in forma pauperis.
Screening
A federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental entity or an
officer or employee of such an entity. See 28 U.S.C. §1915A(a).
Following this review, the court must dismiss any portion of the
complaint that 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 that relief. See 28 U.S.C. § 1915A(b).
To avoid a dismissal for failure to state a claim, a complaint
must set out factual allegations that “raise a right to relief above
the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007). The court accepts the well-pleaded allegations in the
complaint as true and construes them in the light most favorable to
the plaintiff. Id. However, “when the allegations in a complaint,
however, true, could not raise a [plausible] claim of entitlement to
relief,” the matter should be dismissed. Id. at 558.
The complaint presents the following claims: (1) plaintiff’s
exposure to constant lighting at the Larned Mental Health Correctional
Facility violated the Eighth Amendment; (2) plaintiff was falsely
accused of performing sexual acts in a disciplinary report, resulting
in sexual harassment; and (3) plaintiff was not allowed to make a
complete statement or present evidence at the subsequent disciplinary
hearing, violating his right to due process.
The court has conducted a preliminary screening of the complaint,
as contemplated by 28 U.S.C. § 1915A, and makes the following findings.
First, pursuant to the Prison Litigation Reform Act, a prisoner

is required to exhaust all available administrative remedies before
commencing a lawsuit. See Woodford v. Ngo, 548 U.S. 81, 85 (2006).
To meet this requirement, a prisoner “must complete the administrative
review process in accordance with the applicable procedural rules,
--rules that are defined not by the PLRA, but by the prison grievance
process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007)(internal
citation and quotation marks omitted). Accordingly, plaintiff may not
proceed in this action unless he has completed the Kansas grievance
procedure, which requires a prisoner to first seek informal resolution
and then file administrative grievances with the Unit Team, the
principal administrator, and the Secretary of the Kansas Department
of Corrections. See K.A.R. 44-15-102 (outlining inmate grievance
procedure).
The materials supplied by the plaintiff show that he filed
grievances concerning exposure to constant lighting with the Unit Team
and principal administrator (Doc. 1, pp. 1-11). However, there is no
evidence that plaintiff completed the grievance process by presenting
his claim to the Secretary of the KDOC. Accordingly, the court will
direct plaintiff to show cause why this claim should not be dismissed
due to his failure to properly exhaust the grievance procedure.
Next,

plaintiff

claims

his

rights

were

violated

by

the

preparation of an allegedly false disciplinary report and the failure
to allow him to present a full statement at the disciplinary
proceedings. However, the materials included with the complaint
reflect that plaintiff was found not guilty of misconduct and no
sanctions were imposed. (Id., p. 16.)
“A prisoner has no constitutionally guaranteed immunity from
being wrongly or falsely accused of conduct which may result in the

deprivation of a protected liberty interest.” Lopez v. Celaya, 2008
WL 205256 at *5 (N.D. Cal. 2008). Rather, if a prisoner is provided
a disciplinary hearing that affords him procedural due process,
allegations of a falsified report do not state a claim for relief.
See Hanrahan v. Lane, 747 F.2d 1137, 1140-41 (7th Cir. 1984).
Next, because “[p]rison disciplinary proceedings are not part
of a criminal prosecution, the full panoply of rights due a defendant
in such proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539,
556 (1974). Where disciplinary action may result in the loss of good
time credit, a prisoner must receive: (1) advance written notice of
the charges; (2) an opportunity to call witnesses and present
documentary evidence, where this is consistent with institutional
safety; and (3) a written statement by the factfinder of the reasons
for the decision and the evidence supporting it. Superintendent, Mass.
Correctional Inst. v. Hill, 472 U.S. 445, 454 (1985)(citing Wolff,
418 U.S. at 563-67). Plaintiff’s complaint that he was not allowed
to make as extensive a statement as he desired does not state a claim
for relief.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motion for
leave to proceed in forma pauperis (Doc. 3) 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 that on or before November 15, 2013,
plaintiff shall show cause why his claim of prolonged exposure to
lighting should not be dismissed due to his failure to fully exhaust
the grievance procedure.
IT IS FURTHER ORDERED plaintiff’s claims alleging a falsified
disciplinary

report

and

a

due

process

violation

during

the

disciplinary proceedings are dismissed for failure to state a claim
for relief.
IT IS FURTHER ORDERED plaintiff’s motion for status update (Doc. 4)
is denied as moot.
Copies of this order shall be transmitted to the plaintiff and
to the finance office of the facility where he is incarcerated.
IT IS SO ORDERED.
DATED:

This 16th day of October, 2013, at Topeka, Kansas.

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