Kobel (ID 103958) v. Lansing Correctional Facility et al

Filing 3

MEMORANDUM AND ORDER ENTERED: Plaintiff is given thirty (30) days in which to either pay the filing fee of $400.00 in full or provide the financial information that is required by federal law to support his motion to proceed without prepayment of fees. Within the same thirty-day period, plaintiff is required to show cause why this action should not be dismissed. Signed by Senior District Judge Sam A. Crow on 6/25/2013. (Mailed to pro se party Scott Harris Kobel by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SCOTT HARRIS KOBEL,
Plaintiff,
v.

CASE NO.

13-3088-SAC

LANSING CORRECTIONAL
FACILITY, et al.,
Defendants.
MEMORANDUM AND ORDER
This pro se civil complaint was filed pursuant to 42 U.S.C. §
1983 by an inmate of the Lansing Correctional Facility, Lansing,
Kansas (LCF).

Plaintiff’s complaint is deficient in several ways.

He has also filed a Motion to Proceed without Prepayment of Fees that
is incomplete.

He is given time to show cause why this action should

not be dismissed due to the deficiencies discussed herein.

If he

fails to comply with the court’s orders within the time allotted,
this action may be dismissed without further notice.

FILING FEE
The fee for filing a civil rights complaint is $400.00, which
includes the statutory fee of $350.00 plus an administrative fee of
$50.00; or, for one granted leave to proceed in forma pauperis, the
fee is $350.00.

Plaintiff has submitted an Application to Proceed

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without Prepayment of Fees (Doc. 2).

However, he does not provide

the financial information in support that is required by federal law.
28 U.S.C. § 1915 requires that a prisoner seeking to bring a civil
action without prepayment of fees submit an affidavit described in
subsection (a)(1), and 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).

Plaintiff

merely writes upon his application that he has no funds and “no access
to record.”

These statements are not sufficient to show either that

he is entitled to proceed without prepayment of fees or that he should
be excused from the requirement to provide a certified statement.
Plaintiff is given time to submit the requisite financial records
for the appropriate time period.

If he fails to satisfy the filing

fee prerequisites within the time provided, this action may be
dismissed without further notice.
Plaintiff is reminded that under § 1915(b)(1), being granted
leave to proceed without prepayment of fees does not relieve him of
the obligation to pay the full amount of the filing fee.

Instead,

it

payments

entitles

him

to

pay

the

fee

over

time

through

automatically deducted from his inmate trust fund account as funds

2

become available pursuant to 28 U.S.C. § 1915(b)(2).1

ALLEGATIONS AND CLAIMS
Plaintiff does not properly utilize the complaint forms to state
his claims.

He sets forth a jumbled list of complaints under “Nature

of the Case,” where he should have provided a mere summary.

He does

not clearly state under each of the three counts what constitutional
rights he believes were violated.

Instead, as all counts he baldly

claims “Constitutional Rights #4 and #8” and lists: reckless
endangerment/malicious intent to do bodily harm; cruel and unusual
punishment physical/psychological; and willful negligence/callous
indifference.”

He then generally refers back to his disorganized,

myriad statements in Nature of the Case.

Nor does he state

supporting facts in the space after each count as directed.

Instead,

he generally claims that “all defendants” failed or refused to
protect him and endangered him and refers back to Nature of the Case.
In the Nature of the Case, plaintiff sets forth a laundry list
of numerous complaints that include the following.

Upon his

transfer to the LCF in February 2013 he requested protective custody
(PC) due to two assault incidents during his prior confinement at
the Hutchinson Correctional Facility.

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He explained that threats to

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 institution account
exceeds ten dollars ($10.00) until the filing fee has been paid in full.

3

his safety stemmed from his being accused of being a snitch and having
HIV.

He was told that there was no reason for him to remain in PC

at the LCF.
a waiver.
PC.

He was forced into general population without signing
After he was threatened and punched, he again requested

He was spit upon by another inmate.

After these incidents, he

was sent to ad seg where inmates had access to him due to “open-face
bars.”

He objected and was threatened with disciplinary action.

He

was kicked in the side by another inmate in ad seg while in cuffs
as they were led to the showers.

He was harassed, taunted, and

threatened by several inmates; and he reported the incidents but
“custody staff” ignored him.

He was in “A-1” from March 27 through

April 9, 2013, and inmates spit in his cell on the way to yard, which
he reported.
status.”

He also requested to be moved back to “C-1-M.R.A.-P.C.

Another inmate threw urine into his cell which struck him

in the face.

He reported it to A-1 unit manager Mrs. Young, and she

moved the other inmate but not plaintiff.

The same inmate incited

others to throw bags of urine and feces in front of his cell.

Another

inmate kicked plaintiff’s cell, screamed, and spit on plaintiff as
he passed to and from the yard.

Plaintiff spat back at him and

received a conduct violation, while the other inmate did not.

Mrs.

Moore lied that spit got on her jacket and was forced to admit that
she was 30 feet away.

An “M.R.A. cage was placed on (his) cell and

not removed after 72 hours per policy.”

“Staff” began to harass and

discriminate against him because of Moore’s lie and his HIV.
4

His

pleas for help to “A-1 staff” were ignored while “officers piled
reports” on him with no facts, video or reliable witnesses.

Inmate

statements made against him by those assaulting and harassing him
were believed, even though they were falsified.

“Staff” refused to

view videos that would prove his reports of inmate assaults and “the
negligence, harassment and the reckless endangerment” in C-1 and A-1
housing units at LCF.

Plaintiff “eventually had to flood (his) cell

and threaten officers” to get out of A-1 where he felt suicidal,
homicidal and fearful.

He was placed in a cell with objectionable

conditions for thirty days without justification.

He was housed

next to the inmate that previously spit in his face, and they left
to shower at the same time.

When writing this complaint, plaintiff

was in the infirmary undergoing “heavy antibiotic treatments” for
infections that he believes were caused by unsanitary conditions and
neglect of medical staff or “poisoning by staff.”
In response to the question on administrative remedies in the
form complaint, plaintiff does not follow directions to describe how
he sought administrative relief on each of his complaints and the
results.

Instead, he baldly states that he has “filed form 9’s and

grievance(s)

due

to

the

corruption

of

the

Lansing

administration/staff they are attempting to cover it up.”
Plaintiff seeks five million dollars “and any/all sanctions
imposed upon responsible parties.”

5

SCREENING
Because Mr. Kobel 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); 28 U.S.C. § 1915(e)(2)(B).

STANDARDS
“To state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the
United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.”

West v.

Atkins, 487 U.S. 42, 48-49 (1988)(citations omitted); Northington
v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992).

A court liberally

construes a pro se complaint and applies “less stringent standards
than formal pleadings drafted by lawyers.”
U.S. 89, 94 (2007).

Erickson v. Pardus, 551

However, the court “will not supply additional

factual allegations to round out a plaintiff’s complaint or construct
a legal theory on a plaintiff’s behalf.”
F.3d 1170, 1173-74 (10th Cir. 1997).

Whitney v. New Mexico, 113

A pro se litigant’s “conclusory

allegations without supporting factual averments are insufficient
to state a claim upon which relief can be based.”
935 F.2d 1106, 1110 (10th Cir. 1991).

Hall v. Bellmon,

The complaint must offer “more

than labels and conclusions, and a formulaic recitation of the
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elements of a cause of action.”
U.S. 544, 555 (2007).

Bell Atlantic Corp. v. Twombly, 550

To avoid dismissal, the complaint’s “factual

allegations must be enough to raise a right to relief above the
speculative level.”

Twombly, 550 U.S. at 555.

The Tenth Circuit

Court of Appeals has explained “that, to state a claim in federal
court, a complaint must explain what each defendant did to [the pro
se plaintiff]; when the defendant did it; how the defendant’s action
harmed (the plaintiff); and, what specific legal right the plaintiff
believes the defendant violated.”

Nasious v. Two Unknown B.I.C.E.

Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th
Cir. 2007).
“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
in Benefield v. McDowall, 241 F.3d 1267, 1270-71 (10th Cir. 2001) as
follows:
“[P]rison officials have a duty . . . to protect prisoners
from violence at the hands of other prisoners.” Farmer
v. Brennan, 511 U.S. 825, 833, 114 S.Ct. 1970, 128 L.Ed.2d
811 (1994). . . .
“A prison official’s deliberate
indifference to a substantial risk of serious harm to an
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inmate violates the Eighth Amendment.” Id. at 828, 114
S.Ct. 1970. . . . A prison official who “knows of and
disregards an excessive risk to inmate health or safety”
is deliberately indifferent for these purposes.
Id.
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. Id.
at 834, 114 S.Ct. 1970; see also Northington, 102 F.3d at
1567.
In

Chavez

v.

Perry,

142

Fed.Appx.

325,

332

(10th

Cir.

2005)(unpublished) the Tenth Circuit noted that:
The Supreme Court has stated on many occasions and in
various prison contexts that negligent, inadvertent, or
accidental nonfeasance will not support an Eighth
Amendment claim. See, e.g., Farmer v. Brennan, 511 U.S.
825, 840, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); *331
Wilson v. Seiter, 501 U.S. 294, 305, 111 S.Ct. 2321, 115
L.Ed.2d 271 (1991); Whitley v. Albers, 475 U.S. 312, 319,
106 S.Ct. 1078, 89 L.Ed.2d 251 (1986); Estelle v. Gamble,
429 U.S. 97, 105-06, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).

DISCUSSION
Mr. Kobel seeks to hold 47 employees at the LCF liable for
millions of dollars in damages.

However, he does not provide the

full name of any of these defendants, and for 28 of them he provides
no name at all.

Nor does he provide other information to adequately

describe the unnamed defendants, except perhaps the “LCF Warden.”
The Tenth Circuit recognizes “the ability of a plaintiff to use
unnamed defendants so long as the plaintiff provides an adequate
description of some kind which is sufficient to identify the person

8

involved so process eventually can be served.”

Roper v. Grayson,

81 F.3d 124, 125 (10th Cir. 1996); Gose v. Board of County Com’rs
of County of McKinley, 778 F.Supp.2d 1191, 1205 (D.N.M. 2011).
Plaintiff must provide adequate personal information for each
designated defendant so that each may be served within the 120–day
time limit set forth in Rule 4(m) of the Federal Rules of Civil
Procedure.
Not only does plaintiff fail to adequately identify the numerous
individuals he seeks to subject to liability, he also utterly fails
to describe in the body of the complaint what each individual
defendant did that amounted to a constitutional violation.

He thus

fails to show the personal participation of each and every defendant
in allegedly unconstitutional acts, which is an essential element
of a § 1983 claim for money damages.
Instead, plaintiff lists multiple instances in which he claims
he was harassed, threatened, and spit upon by other inmates as well
as one incident where he was kicked and another where he was punched;
but without providing the date of each incident or sufficient
descriptions of the underlying circumstances.

He certainly does not

satisfy the Nasious standard by explaining what each defendant did
to him; when the defendant did it; how the defendant’s action harmed
him; and what specific legal right he believes the defendant
violated.
As noted, plaintiff generally claims that all defendants
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subjected

him

to

cruel

and

unusual

punishment

and

reckless

endangerment in that they failed or refused to protect him.

However,

he does not allege sufficient facts to state a claim under the Eighth
Amendment.

His allegations that all defendants acted with willful

negligence, callous indifference, and malicious intent to do bodily
harm are completely conclusory.
allege are insufficient.

Moreover, the sparse facts he does

He alleges that he initially requested

protective custody at the LCF based upon two assault incidents as
well as his having HIV and been labeled a snitch.

However, he

provides no information regarding the two assault incidents, which
occurred at a different institution.

Furthermore, plaintiff does

not name or adequately describe the LCF employee that actually denied
his initial request for protective custody, and he alleges no facts
showing that this denial violated his constitutional rights.

Most

of the events that allegedly occurred since his arrival at the LCF
appear to have been minor incidents involving other inmates.
Nevertheless, Mr. Kobel was eventually placed in protective custody
and ad seg, and even in those protective environments he complains
of harassment by other inmates.

While prison officials have a

constitutional duty to protect an inmate from substantial risk of
serious harm, harassment and threats are generally not thought of
as amounting to that type of risk.

In short, plaintiff does not

allege facts sufficient to establish that he was at substantial risk
of serious harm in the LCF and that each defendant knew of and
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disregarded an excessive risk to his health or safety.
Plaintiff is given time to show cause why this action should
not be dismissed for the all the foregoing reasons.

If he fails to

show good cause within the time allotted, this action may be dismissed
without further notice.
IT IS THEREFORE BY THE COURT ORDERED that that plaintiff is given
thirty (30) days in which to either pay the filing fee of $400.00
in full or provide the financial information that is required by
federal law to support his 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 the reasons discussed herein including failure to state
facts to support a federal constitutional claim.
IT IS SO ORDERED.
Dated this 25th day of June, 2013, at Topeka, Kansas.

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

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