Butler (ID 103518) v. Cline et al

Filing 9

ORDER ENTERED: Plaintiff's motion 2 for leave to proceed in forma pauperis is granted. Plaintiff is granted twenty (20) days to show cause why the complaint should not be summarily dismissed as stating no claim for relief. Signed by Senior District Judge Sam A. Crow on 7/24/2013. (Mailed to pro se party D'Shaun Jamar Butler by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

D’SHAUN JAMAR BUTLER,
Plaintiff,
v.

CASE NO. 13-3094-SAC

SAM CLINE, et al.,
Defendants.

O R D E R
Plaintiff,

a

prisoner

incarcerated

in

the

Correctional Facility (“HCF”) in Hutchinson, Kansas.

Hutchinson

He proceeds pro

se on a civil complaint seeking relief under 42 U.S.C. § 1983.
Motion to Proceed In Forma Pauperis, 28 U.S.C. § 1915
Plaintiff has paid the initial partial filing fee assessed by
the court, 28 U.S.C. § 1915(b)(1), and is granted leave to proceed
in forma pauperis in this civil action.

Plaintiff remains obligated

to pay the remainder of the $350.00 district court filing fee, through
automatic

periodic

payments

from

his

inmate

trust

account

as

authorized by 28 U.S.C. § 1915(b)(2).
Screening the Complaint, 28 U.S.C. § 1915A
Because plaintiff is a prisoner, the court is required to screen
the complaint and to dismiss it or any portion thereof that is
frivolous, fails to state a claim on which relief may be granted, or
seeks monetary relief from a defendant immune from such relief.
U.S.C. ' 1915A(a) and (b).

28

Although a complaint filed pro se by a party

proceeding in forma pauperis must be given a liberal construction,
Erickson v. Pardus, 551 U.S. 89 (2007), even under this standard a
pro se litigant=s Aconclusory allegations without supporting factual
averments are insufficient to state a claim upon which relief can be
based.@

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).

Plaintiff bears the burden of alleging Aenough facts to state a claim
to relief that is plausible on its face.@
Twombly, 550 U.S. 544, 570 (2007).

Bell Atlantic Corp. v.

See Robbins v. Oklahoma, 519 F.3d

1242, 1247 (10th Cir.2008)(stating and applying Twombly standard for
dismissing a complaint as stating no claim for relief).

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.

ATo 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 (1988).
Plaintiff names the following HCF defendants in this matter:
Warden Sam Kline, Correctional Officer (“CO”) Nunez, CO Cubbage, CO
Pettay, and Aramark employee Slago.
Plaintiff states he was subjected to verbal sexual harassment
by defendant Cubbage on November 5, 2012, and was then forced to remain
at HCF and suffer staff retaliatory threats to his safety and frivolous
disciplinary write-ups.

Plaintiff states his legal property, and his

Bible which contained important address information, were taken by
defendant Pettay when plaintiff was placed on a transfer bus on
November 27, 2012, for a court appearance, but were never returned

when he went back to HCF two days later.

Plaintiff claims this

rendered him unable to “properly fight my case” and deprived of
property that “can or could have” restored his freedom.

Plaintiff

claims defendants’ unprofessional conduct has caused him to suffer
loss of sleep, headaches, depression and stress.

Plaintiff further

claims he cannot think clearly, and lives in daily fear for his safety.
On

these

allegations,

plaintiff

contends

defendants

have

subjected him to cruel and unusual punishment and violated his rights
under the Fourteenth Amendment.

Plaintiff seeks damages, his

immediate removal from HCF through an interstate compact to protect
his personal safety, and a three year deduction from his sentence
because the missing legal work would have resulted in a reduction of
his sentence if he had been successful.
Having reviewed these allegations, the court finds the complaint
is subject to being summarily dismissed for the following reasons.
Cruel and Unusual Punishment
A prison official's deliberate indifference to a substantial
risk of serious harm to an inmate violates the Eighth Amendment.
Helling v. McKinney, 509 U.S. 25 (1993).

A cognizable claim of cruel

and unusual punishment requires a showing that the alleged deprivation
must be, objectively, “sufficiently serious," and a showing that the
prison official acted with a “sufficiently culpable state of mind.”
Id. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
It is well established, however, that allegations of verbal abuse
and harassment alone are insufficient.

See e.g., McBride v. Deer,

240 F.3d 1287, 1291 n.3 (10th Cir.2001)("[A]cts or omissions resulting
in an inmate being subjected to nothing more than threats and verbal

taunts do not violate the Eighth Amendment.").
Also, plaintiff’s bare allegations of retaliation by staff in
general are conclusory at best, lacking any factual basis for
plausibly finding either a sufficiently serious deprivation or that
any named defendant acted with culpable intent.
"[A] pro se plaintiff requires no special legal training to
recount the facts surrounding his alleged injury, and he must provide
such facts if the court is to determine whether he makes out a claim
on which relief can be granted."

Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991 (citing cases).

"[C]onclusory allegations without

supporting factual averments are insufficient to state a claim on
which relief can be based."

Id.

Accordingly, absent amendment of

the complaint to cure these deficiencies, plaintiff’s claim of cruel
and unusual punishment is subject to being summarily dismissed as
stating no claim for relief under § 1983.
Missing Legal Property
Nor do plaintiff’s allegations present any actionable Fourteenth
Amendment claim.

Plaintiff does not allege constitutional error in

the taking of his legal materials during his transport to a court
hearing, but instead alleges the failure to return this property
violated his constitutional rights and impermissibly interfered with
his ability to pursue post-conviction relief in the state courts.

One

can reasonably infer from plaintiff’s sparse allegations and attached
exhibits that his property has not been returned because staff cannot
locate it.
No violation of plaintiff’s right to due process under the
Fourteenth Amendment is implicated, however, by this random and

unauthorized taking of his property where adequate post-deprivation
remedies are available such as state tort and common law remedies.
See Hudson v. Palmer, 468 U.S. 517, 531 (1984); Gillihan v. Shillinger,
872 F.2d 935 (10th Cir.1989).

Notably in this case, exhibits attached

to plaintiff’s complaint include an administrative grievance response
from Warden Cline reminding plaintiff that the Unit Team staff has
instructed plaintiff to file a Personal Property Claim regarding his
missing property, that use of the administrative grievance procedure
was not the proper procedure to employ, and that the search for
plaintiff’s legal work and Bible would continue.
To the extent plaintiff is attempting to pursue a claim of being
denied his right of access to the courts, he must sufficiently allege
that the deprivation of his legal materials caused him actual injury.
See Lewis v. Casey, 518 U.S. 343, 351-52 (1996)(to have standing to
pursue a right-of-access claim, a plaintiff must allege actual
injury).

While cognizable harm can arise if plaintiff’s efforts to

pursue a claim are impeded, id. at 353 n.4, plaintiff is still required
to demonstrate that defendants hindered his efforts to litigate a
nonfrivolous claim.

Penrod v.Zavaras, 94 F.3d 1399, 1403 (10th

Cir.1996).
Here, plaintiff’s simple broad reference to not being able to
pursue potential relief in the state courts, and his speculation of
success if his legal papers had been returned, are insufficient to
plausibly establish any actual injury.
Personal Participation of Each Defendant
Plaintiff is also advised that "[i]ndividual liability under 42
U.S.C § 1983 must be based on personal involvement in the alleged

constitutional violation."

Foote v. Spiegel, 118 F.3d 1416, 1423

(10th Cir.1997); see also Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th
Cir.1996)("[P]ersonal participation is an essential allegation in a
section 1983 claim.").

A defendant cannot be held liable in a civil

rights action based solely upon his or her supervisory capacity.

See

Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir.2006) (“[F]or
liability to arise under § 1983, a defendant's direct personal
responsibility for the claimed deprivation of a constitutional right
must be established.”).
Other than plaintiff’s claim of misconduct by defendants Cubbage
and Pettay, the complaint contains no specific allegations concerning
the remaining defendants other than to broadly claim Warden Cline and
his staff are responsible for the safety and security of the facility.
This is insufficient.

Id.

Accordingly, defendants Cline, Nunez,

and Slago are subject to being summarily dismissed from this action
because the complaint provides no factual or legal basis for plausibly
establishing their personal participation in any alleged violation
of plaintiff’s constitutional rights.
Notice and Show Cause Order to Plaintiff
For the reasons stated herein, the court directs plaintiff to
show cause why the complaint should not be summarily dismissed as
stating no claim upon which relief can be granted under 42 U.S.C. §
19183 against any named defendant.
§ 1915(e)(2)(B)(ii).

28 U.S.C. § 1915A(b); 28 U.S.C.

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. 2) is granted, with payment of the

remainder of the district court filing fee to proceed as authorized
by 28 U.S.C. § 1915(b)(2).
IT IS FURTHER ORDERED that plaintiff is granted twenty (20) days
to show cause why the complaint should not be summarily dismissed as
stating no claim for relief.
IT IS SO ORDERED.
DATED:

This 24th day of July 2013 at Topeka, Kansas.

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