Chambers (ID 104595) v. Badsky

Filing 15

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 10 for extension of time to file response is dismissed as moot. Plaintiff's motion 13 to order defendant to respond to complaint is denied. This action is dismissed for failure to state facts to support a federal constitutional claim. Signed by Senior District Judge Sam A. Crow on 08/28/14. Mailed to pro se party Cody Lee Chambers by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CODY LEE CHAMBERS,
Plaintiff,
v.

CASE NO.

13-3114-SAC

KEN BADSKY,
Defendant.
MEMORANDUM AND ORDER
Upon screening the original complaint filed herein, the court
entered an Order (Doc. 6) requiring plaintiff to show cause why this
action should not be summarily dismissed as stating no claim for
relief.

Thereafter, Mr. Chambers responded by filing an Amended

Complaint (Doc. 9) and a “Motion to Show Cause as Ordered,” which
was docketed as his response (Doc. 11).

The court is required to

screen plaintiff’s Amended Complaint and to dismiss the complaint
or any portion thereof that is frivolous, fails to state a claim on
which relief may be granted, or seeks relief from a defendant immune
from such relief.

28 U.S.C. § 1915A (a) and (b).

Having considered

all the materials in the file, the court concludes that this action
must be dismissed for failure to state facts sufficient to support
a federal constitutional claim.

FACTUAL BACKGROUND AND CLAIMS
1

In his Amended Complaint, Mr. Chambers sets forth the following
background facts.

On February 25, 2013, during his confinement at

the Decatur County Jail in Oberlin, Kansas, he received mail from
attorney Steven Sherwood of Legal Services for Prisoners that was
properly marked as legal mail.

This mail was opened and read outside

his presence by defendant Ken Badsky, Sheriff of Decatur County.
When Undersheriff Marcum handed plaintiff the mail, plaintiff asked
why it was opened, and Marcus responded that defendant Badsky “had
opened and read it not him.”

Three fellow inmates witnessed Marcum’s

delivery of the opened mail and Marcum’s statement.
As factual support for his assertions of First Amendment
violations in particular, plaintiff makes the following additional
allegations.

The letter from attorney Sherwood “was about specific

actions” under the Kansas habeas statutes “for (his) case in Decatur
County” and “his perusal to appeal” that case, and came with an appeal
form attached.

Attorney Sherwood asked plaintiff “to provide more

information as to the nature of the action (plaintiff) was going to
take.”1

Plaintiff could not provide the information requested by

attorney Sherwood “because of (his) fear that the defendant would
read it.”

The prosecutor in his criminal case, Decatur County

Attorney Steve Hirsh, stated to plaintiff’s appointed attorney Mark
Whitney that “if (plaintiff) planned to file a habeas corpus case
1

In his original complaint, plaintiff alleged only that the “mail contained
an article I had planned to use on my case and a letter from” attorney Sherwood.

2

or pursue” an appeal, Hirsh “would give (plaintiff) all the time”
he could.

The only way for Hirsh “to know about that subject matter”

would be from defendant Badsky opening and reading plaintiff’s legal
mail and “reporting it” to Hirsh.

Plaintiff’s fear of “getting more

prison or jail time” rendered him unable to “properly raise a defense
in (his) case” and pursue an appeal or habeas corpus action.
Defendant acted “with an evil intent and motive” and “with very
improper motive.”
As Count I in his Amended Complaint, plaintiff asserts that
defendant Badsky violated his First Amendment rights to freedom of
speech, to be free of censorship, to petition the Government for
redress of grievances, and of access to the courts.

As Count II,

he asserts that defendant violated his Sixth Amendment right to
assistance of counsel.

As Count III, plaintiff asserts violation

of due process, privileges and immunities, liberty and property.
In his response (Doc. 11), plaintiff mainly cites several legal
opinions with no discussion as to how they relate to the facts of
his case.

His only fact allegations therein are that he filed an

Amended Complaint “to state more facts,” and hopes for the court to
“construct the Original Complaint with the Amended Complaint.”2

2

An Amended Complaint completely supersedes the original complaint, and the
original complaint is no longer before the court. Thus, plaintiff’s references
to his original complaint could be disregarded. Nevertheless, in determining this
matter the court has considered those portions of plaintiff’s original complaint
that he specifically referred to in his Amended Complaint.

3

Plaintiff seeks a declaration that “the acts and omissions
described” in his complaint violated his federal constitutional
rights.

He also seeks injunctive relief in the form of an order

requiring defendant to set standard rules and grievance procedures
at the Decatur County Jail.

In addition, he seeks nominal and

punitive damages.

LEGAL 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.”
Atkins, 487 U.S. 42, 48 (1988).

West v.

A court liberally construes a pro

se complaint and applies “less stringent standards than formal
pleadings drafted by lawyers.”
(2007).

Erickson v. Pardus, 551 U.S. 89, 94

On the other hand, “when the allegations in a complaint,

however true, could not raise a claim of entitlement to relief,”
dismissal is appropriate.
544, 558 (2007).

Bell Atlantic Corp. v. Twombly, 550 U.S.

A pro se litigant’s “conclusory allegations

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

Hall v. Bellmon, 935 F.2d

The court “will not supply additional

factual allegations to round out a plaintiff’s complaint or construct
4

a legal theory on plaintiff’s behalf.”

Whitney v. New Mexico, 113

F.3d 1170, 1173-74 (10th Cir. 1997).
Plaintiff claims a violation of due process.

The Tenth Circuit

Court of Appeals has plainly held that prison inmates have no federal
constitutional right to a grievance procedure while incarcerated.
See Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009); Walters
v. Corrections Corp. of America, 119 Fed.Appx. 190, 191 (10th Cir.
2004), cert. denied, 546 U.S. 865 (2005); Sims v. Miller, 5 Fed.Appx.
825, 828 (10th Cir. 2001)([I]nsofar as plaintiff contended that CDOC
officials failed to comply with the prison grievance procedures, he
failed to allege the violation of a federal constitutional right.”).
Plaintiff also asserts that defendant violated his Sixth
Amendment right to “proper assistance of counsel.”

The Sixth and

Fourteenth Amendments to the U.S. Constitution guarantee the right
of an indigent defendant to counsel at the trial stage of a criminal
proceeding. 3

Murray v. Giarratano, 492 U.S. 1, 7 (1989)(citing

Gideon v. Wainwright, 372 U.S. 335 (1963)); McMann v. Richardson,
397 U.S. 759, 771 n. 14 (1970)(The Sixth Amendment guarantees that
“[i]n all criminal prosecutions, the accused shall enjoy the right
. . . to have the Assistance of Counsel for his defence.”4)).

“[A]n

3

This includes an inmate’s right to privately discuss his case with counsel.
See Geder v. United States, 425 U.S. 80 (1976).
4

The Sixth Amendment’s right to counsel simply “does not govern civil cases.”
Turner v. Rogers, ––– U.S. ––––, 131 S.Ct. 2507, 2516 (2011); cf. Martinez v. Ryan,

5

indigent defendant is similarly entitled as a matter of right to
counsel for an initial appeal from the judgment and sentence of the
trial court.”

Id. at 7 (citing Douglas v. California, 372 U.S. 353,

(1963); Griffin v. Illinois, 351 U.S. 12 (1956)).

On the other hand,

in Pennsylvania v. Finley, 481 U.S. 551, 556-57 (1987), the Court
held that there is no federal constitutional right to counsel for
indigent prisoners seeking state post-conviction relief.

See

Murray, 492 U.S. at 8 (“Post-conviction relief is even further
removed from the criminal trial” and “is not part of the criminal
proceeding itself,” but “is in fact considered to be civil in
nature.”).

Thus, with respect to the reading of an inmate’s mail

as well, the Sixth Amendment’s “reach is only to protect the
attorney-client
setting.”

relationship

from

intrusion

in

the

criminal

Wolff, 418 U.S. at 576.

In considering plaintiff’s claim of violation of his right to
free speech, the following standards apply.

Generally, “prisoners

retain the right to send and receive mail.”
Abbott, 490 U.S. 401 (1989).5

See Thornburgh v.

However, that right does not preclude

---U.S.---, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012)(lack of counsel in
post-conviction proceedings can constitute cause to excuse procedural default of
ineffective assistance of trial counsel claim in jurisdiction where such claim
may not be raised on direct appeal.).
5

The First Amendment prohibits the abridgement of the freedom of speech.
U.S. Const. Amend. I. Mail is one medium of free speech, and the right to send
and receive mail exists under the First Amendment. See City of Cincinnati v.
Discovery Network, Inc., 507 U.S. 410, 427 (1993)(”A prohibition on the use of
the mails is a significant restriction of First Amendment rights.).

6

prison

officials

from

examining

legitimate penological purposes.

mail

for

security

and

other

Wolff v. McDonnell, 418 U .S. 539,

576 (1974); Rowe v. Shake, 196 F.3d 778, 782 (7th Cir. 1999).
Furthermore, courts have long held that the inadvertent, negligent
mishandling of an inmate’s mail does not violate the Constitution.
Simkins v. Bruce, 406 F.3d 1239, 1242 (10th Cir. 2005)(When access
to the courts is impeded by mere negligence, as when legal mail is
inadvertently lost or misdirected, no constitutional violation
occurs.); Bruscino v. Carlson, 654 F.Supp. 609 (S.D.Ill. 1987),
aff’d, 854 F.2d 162 (7th Cir. 1988), cert. denied, 491 U.S. 907
(1989).

On the other hand, courts have “not hesitated to find a

violation” where a policy of opening mail outside inmates’ presence
has been shown.

See e.g. Kalka v. Megathlin, 10 F.Supp.2d 1117, 1123

(D.Ariz. 1998), aff’d 188 F.3d 513 (9th Cir. 1999)(“[A]n occasional
opening of legal mail outside the inmate’s presence does not rise
to the level of a violation, though a policy of doing so is a
violation.”); Jones v. Brown, 461 F.3d 353, 359 (3rd Cir. 2006)(a
prison’s

practice

of

opening

attorney

mail

“interferes

with

protected communications, strips those protected communications of
their confidentiality, and accordingly impinges upon the inmate’s
right to freedom of speech.”).
Plaintiff’s main claim is that he was denied access to the
courts.

Prison inmates have a constitutional right to “meaningful
7

access to the courts.”

See Bounds v. Smith, 430 U.S. 817, 823 (1977).

“[T]he right of access to the courts is an aspect of the First
Amendment right to petition the Government for redress.” Bill
Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 741 (1983); see
also Wolff, 418 U.S. at 576; Al– Amin, 511 F.3d at 1331.

The Supreme

Court has held that “in order to assert a claim arising from the denial
of meaningful access to the courts, an inmate must first establish
an actual injury.”

Lewis v. Casey, 518 U.S. 343, 349, 351–53

(1996)(an inmate claiming denial of access to the courts must satisfy
the standing requirement of “actual injury.”); Simkins v. Bruce, 406
F.3d 1239, 1243–44 (10th Cir. 2005); Smith v. Maschner, 899 F.2d 940,
944 (10th Cir. 1990)(An inmate alleging interference with legal
access must allege specific facts showing that a “distinct and
palpable” injury resulted from defendants’ conduct.”); Peterson v.
Shanks, 149 F.3d 1140, 1145 (10th Cir. 1998)(“To present a viable
claim for denial of access to courts . . . an inmate must allege and
prove prejudice arising from Defendants’ actions.”).

Plaintiff may

show injury by alleging actual prejudice to contemplated or existing
litigation such as the inability to meet a filing deadline or to
present a claim, or that a nonfrivolous legal claim has been dismissed
or impeded.

Simkins, 406 F.3d at 1242 (citing Lewis, 518 U.S. at

351–53 & n. 3); Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th Cir.
1996)(“an inmate must satisfy the standing requirement of ‘actual
8

injury’ by showing” that defendant “hindered the prisoner’s efforts
to pursue a nonfrivolous claim”).
will not suffice.

Conclusory allegations of injury

Wardell v. Duncan, 470 F.3d 954, 959 (10th Cir.

2006)(citing Cosco v. Uphoff, 195 F.3d 1221, 1224 (10th Cir. 1999));
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).

Furthermore,

the Tenth Circuit and other Circuit Courts have specifically held
that an isolated incident of opening legal mail outside of the
inmate’s presence does not violate the Constitution.

See Maschner,

899 F.2d at 944; Berger v. White, 12 Fed.Appx. 768, 771 (10th Cir.
2001)(unpublished)(a single incident of a prison official opening
an inmate’s constitutionally protected legal mail does not support
a civil rights claim); see also Brewer v. Wilkinson, 3 F.3d 816, 825
(5th Cir. 1993), cert. denied, 510 U.S. 1123 (1994); Gardner v.
Howard, 109 F.3d 427, 431 (8th Cir. 1997)(isolated, single instance
of opening incoming confidential legal mail does not support a
constitutional claim).

DISCUSSION
1.

Failure to State Claim of Denial of Due Process

The only factual allegation made by plaintiff specifically to
support his assertion of a due process violation is that defendant
Badsky did not set “standard rules and grievance procedures” for

9

inmates, his employees, or himself at the Decatur County Jail (DCJ),6
and this violated “proper processes.”

Plaintiff does not point to

any particular rule that defendant failed to set and explain how he
was injured as a result.

His allegation that defendant did not “set”

a grievance procedure fails to state a claim because there is no
entitlement under the federal Constitution to a grievance procedure
at a jail or prison.

Thus, defendant’s alleged failure to provide

rules governing grievances at the DCJ, taken as true, simply does
not rise to the level of a constitutional violation.7
2.

Failure to State Claim of Interference with Sixth Amendment

Right to Counsel
As factual support for his Sixth Amendment claim in particular,
Mr. Chambers alleges that “because of defendant’s actions” and “for
fear of serving more time,” he and his court-appointed attorney “did
not have a fair chance” to defend plaintiff.

These vague and

conclusory allegations do not suggest how defendant Badsky’s opening
and reading the mail from Sherwood, who was not plaintiff’s appointed
counsel, could plausibly have prevented plaintiff and his appointed

6

Under Count III, plaintiff also baldly asserts that the opening and reading
of his mail improperly deprived him of “liberty and property” and “privileges or
immunities.” However, he alleges no facts to support these distinct assertions,
and the sparse facts he does allege do not patently evince such deprivations.
These bald assertions are not considered further.
7

Plaintiff does not claim that his right of court access was impeded by
defendant’s failure or refusal to answer his grievances.

10

counsel Mark Whitney from raising a defense in his criminal case.8
Such a conclusion does not logically follow from plaintiff’s
description of the mail’s content, and given that Sherwood wrote
about an appeal or a state habeas action, it appears that plaintiff’s
criminal trial had concluded before the mail incident.

Likewise,

plaintiff’s conclusory allegations do not suggest how the mail
incident

plausibly

caused

him

to

fear

serving

more

time.

Furthermore, plaintiff alleges no facts indicating how defendant
Badsky’s handling of Sherwood’s mail interfered with his right to
consult with his criminal defense attorney Whitney.

As explained

earlier, plaintiff’s Sixth Amendment right to counsel is limited to
protecting “the attorney-client relationship from intrusion in the
criminal setting.”

The court concludes that plaintiff alleges no

facts that evince a violation of his Sixth Amendment right to counsel.
3.

Failure to State Claim of First Amendment Violation

Plaintiff fails to allege sufficient facts to support any of
his assertions of First Amendment violations.

His assertion of

censorship is supported by no facts whatsoever.

He does not allege

that defendant Badsky withheld any portion of Sherwood’s mail or

8

Plaintiff does not reveal what viable defense he was allegedly prevented
from presenting in his criminal case. Moreover, he does not allege that he has
exhausted state court remedies on this claim. Furthermore, “a state prisoner’s
claim for damages is not cognizable under § 1983 if ‘a judgment in favor of the
plaintiff would necessarily imply the invalidity of his conviction or sentence,’
unless the prisoner can demonstrate that the conviction or sentence has previously
been invalidated.” See Edwards v. Balisok, 520 U.S. 641, 643 (1997)(quoting Heck
v. Humphrey, 512 U.S. 477, 487 (1994)).

11

censored it in any manner.

See Walker v. Navarro County Jail, 4 F.3d

410 (5th Cir. 1993)(Inmate’s allegation that his incoming legal mail
was opened and read but not censored does not rise to level of
constitutional violation).
Mr. Chambers baldly asserts that the opening and reading of his
legal mail violated his First Amendment right of free speech.
However, he does not allege facts to support this assertion.

He does

not allege that defendant censored or refused to deliver his mail
from Sherwood.

Nor does he allege facts plausibly indicating that

this single incident sufficiently chilled, inhibited, or interfered
with

his

ability

to

speak,

protest,

or

complain

correspondent Sherwood or his appointed attorney.

9

openly

to

The only

9

The Eleventh Circuit, like the Third Circuit, has found a “free speech right
to communicate with [one’s] attorneys by mail, separate and apart from his
constitutional right to access the courts.” Al–Amin v. Smith, 511 F.3d 1317, 1334
(11th Cir.), cert. denied, 555 U.S. 820 (2008). A contrary view was expressed
in West v. Endicott, 2008 WL 906225, *4–*6 (E.D.Wis. Mar. 31, 2008):
It is not the message contained in legal mail that is curbed, but the
confidentiality of that mail: the violation is one of secrecy rather
than substance. Secrecy is not “speech,” of course, but it is really
only that secrecy that the Third and Eleventh Circuits are protecting
as an “end in itself.” . . . [T]he veil of secrecy that protects legal
mail does not protect the content of any “speech” occurring outside
of the legal context-no important political ideas or religious
opinions are affected by a protection for legal mail. Obviously,
then, the only purpose secrecy serves in the legal mail context is
that it allows inmates to communicate more freely with their
attorneys, which of course was the genesis of courts’ heightened
protections for legal mail in the first place. . . .
. . . I conclude that when the allegation is merely that legal mail
was improperly opened-rather than destroyed or delayed-the right is
only actionable in this circuit to the extent the violation inhibits
the inmate’s ability to access the courts; the right to receive
unopened legal mail is not, in other words, entitled to independent
First Amendment protection.

12

allegation added in his Amended Complaint, that he could not respond
to Sherwood’s letter “because of (his) fear that defendant would read
it,” is nothing more than a conclusory statement.10

Plaintiff makes

no attempt to explain why he could not either telephone or write
attorney Sherwood back to answer his questions and discuss the
transmitted information or at least to relay his fear of doing so
and arrange some other means of communicating with Sherwood.

He

offers no reason for the mail-reading incident to have rendered him
too fearful to respond to Sherwood.
If plaintiff is asserting a violation of his First Amendment
“right to receive mail per se,” he also fails to allege facts in
support.

He does not allege that defendant Badsky destroyed,

confiscated, or even delayed delivery of Sherwood’s letter.

Since

the mail was delivered, Mr. Chambers received the information that
attorney Sherwood intended to communicate to him.

In any event, as

plaintiff was previously advised, he fails to state a constitutional
claim because this matter involved a single isolated incident.

Id. (footnotes omitted); see also Vasquez v. Raemisch, 480 F.Supp.2d 1120, 1140
(W.D.Wis. 2007).
10

Moreover, plaintiff’s allegation that defendant Badsky read his legal mail
is based upon his hearsay statement of Marcum’s hearsay statement that Badsky had
read the mail.

13

Plaintiff has never alleged that the incident in question arose
pursuant to a prison practice or regulation.11
The court rejects the “access-to-courts aspect” of plaintiff’s
claim for three main reasons.

First, Mr. Chambers has not made the

showing of actual injury required by Lewis.

See id. at 349-53.

No

doubt, a prison official’s failure to deliver an inmate’s mail may
interfere with an inmate’s First Amendment right of access to the
courts via mail.
2006).

See Wardell v. Duncan, 470 F.3d 954, 959 (10th Cir.

However, as explained earlier, in order to establish a denial

of access to the courts via interference with legal mail, a plaintiff
“must show that non-delivery of his legal mail resulted in actual
injury by frustrating, impeding, or hindering his efforts to pursue
a legal claim.”

Simkins, 406 F.3d at 1243; Lewis, 518 U.S. at 350-51;

Penrod, 94 F.3d at 1403.

For example, in Simkins, 406 F.3d at 1243,

the prison withheld an inmate’s legal mail altogether, including a
summary judgment motion filed in a civil action, and the delay
adversely impacted his civil action.

The Tenth Circuit found

injury, concluding that “the prejudice from the interference with
plaintiff’s legal mail is directly and inextricably tied to the
adverse disposition of his underlying case and the loss of his right
to appeal from that disposition.”

11

Id. at 1244.

Consequently, analysis under Turner v. Safley, 482 U.S. 78 (1987), is not
warranted.

14

Mr. Chambers fails to explain how the single mail incident at
issue here hindered him from pursuing either an appeal or a state
habeas action, as he claims.

His own allegations indicate that the

mail from Sherwood aimed to facilitate those two pursuits and that
he received the information as intended.

Plaintiff alleges no facts

showing any actual impediment to either a criminal appeal or the
filing of a state habeas corpus petition and provides no valid reason
why he could not have proceeded to file either following this
incident.

He certainly does not explain how defendant’s act of

opening and reading plaintiff’s incoming mail actually resulted in
plaintiff missing a court deadline or having a non-frivolous legal
claim dismissed.

Plaintiff’s conclusory statement, that defendant

Badsky relayed information from Sherwood’s letter to the prosecutor,
is speculative at best 12 and evinces no such impediment.

To the

contrary, plaintiff’s own allegation is that the prosecutor stated
he would give plaintiff as much time as possible for either action.
Plaintiff also fails to allege facts showing that he was pursuing
a legal claim that was non-frivolous.

He does not describe any issue

he contemplated presenting on appeal in a specific criminal case13

12

The filing of an appeal or a state habeas petition following a criminal
conviction is a common occurrence, and the prosecutor’s reference to these possible
actions does not establish his awareness of the content of Sherwood’s letter.
13

Plaintiff alleged in his original complaint that at the time of this incident
he was being held “on Decatur County District Court Case Number 2011-CR-51 along
with “several” misdemeanor cases “including 2011-CR-37, 2012-CR-03 and
2012-CR-30, which were later dismissed.” Kansas Department of Corrections (KDOC)

15

or any non-frivolous habeas corpus claim or claims he wanted to pursue
in state court.
Secondly, plaintiff alleges no facts to support an inference
that the incident upon which his complaint is based was the product
of improper motive rather than inadvertence or mere negligence.

His

allegations that Badsky acted with an evil intent and improper motive
are the only allegations he makes in this regard, and they are nothing
but conclusory statements.
Finally, the incident of which Mr. Chambers complains was a
single, isolated incident.

Plaintiff has never alleged that

defendant engaged in a pattern or practice of opening and reading
his legal mail outside his presence.

One incident of improperly

opened and read legal mail fails to state a constitutional claim
where, as here, there are no facts alleged to show improper motive
or interference with an inmate’s right to court access or counsel.
Maschner, 899 F.2d at 943-44; Bruscino v. Pugh, 232 Fed.Appx. 763
(10th Cir. 2007); Berger, 12 Fed.Appx. at 771 (single incident of a
prison official opening an inmate’s constitutionally protected legal
mail does not support a civil rights claim); Davis v. Goord, 320 F.3d
346, 351 (2nd Cir. 2003)(an isolated incident of legal mail tampering
records indicate that Mr. Chambers was discharged on November 15, 2013 but is
currently “under supervision” on Ford County District Court Criminal Case
11-CR-476 for an offense that occurred in April 2011, for which he was sentenced
on January 17, 2012. Plaintiff stated in his original complaint that the contents
of the opened mail related to “the case I was being held for.” However, he did
not specify whether it was related to all his Decatur cases or only the one that
was not “later dismissed.”

16

does not violate the Constitution; instead, the inmate must show a
pattern or practice of opening an inmate’s legal mail outside his
presence).

Thus, while the opening and reading of an inmate’s legal

mail without cause by a County Sheriff or any jail official cannot
be condoned, this court must conclude that the single incident
described in this case does not state a federal constitutional
violation so as to give rise to a claim under 42 U.S.C. § 1983.

OTHER GROUNDS FOR DISMISSAL
Plaintiff’s claim for damages against defendant Badsky in his
official capacity is dismissed for the reason that state officials
have the same immunity as the State with respect to suits for money
damages.

Sovereign immunity is not a bar to plaintiff’s claims

against defendant Badsky in his individual capacity or for injunctive
relief.

However, plaintiff’s claim for injunctive relief is

dismissed because his transfer out of the Decatur County Jail
rendered this claim moot.

A party cannot maintain an action for

injunctive relief unless a substantial likelihood of being injured
in the future is demonstrated.

Facio v. Jones, 929 F.2d 541, 544

(10th Cir. 1991); City of Los Angeles v. Lyons, 461 U.S. 95, 103
(1983)(“[P]ast wrongs do not in themselves amount to that real and
immediate

threat

controversy.”).

of

injury

necessary

to

make

out

a

case

or

Finally, plaintiff’s claim for punitive damages is
17

also dismissed because he fails to allege the requisite facts in
support.

To obtain punitive damages under § 1983, plaintiff must

show that defendants’ conduct was “‘motivated by evil motive or
intent, or . . . involve[d] reckless or callous indifference to the
federally protected rights of others.’”

Jolivet v. Deland, 966 F.2d

573, (10th Cir. 1992)(quoting Smith v. Wade, 561 U.S. 30, 56 (1983)).
As noted, plaintiff’s only allegation in this regard, that defendant
opened his legal mail “with an evil intent and motive,” is nothing
more than a conclusory statement.

PENDING MOTIONS
Plaintiff’s Motion for Extension of Time to File Response (Doc.
10) is dismissed as moot since his response was submitted shortly
thereafter and the additional time he requested expired months ago.
Plaintiff’s Motion to Order Defendant to Respond to Complaint (Doc.
13) is denied because it presents no set of facts and no legal
authority entitling him to the court action requested.

Plaintiff

alleges that he has “satisfied the requirements to state a claim,”
but the court has found otherwise.

Furthermore, a defendant is not

required to respond to a prisoner complaint and service need not be
ordered unless and until the complaint has survived the screening
process.

18

IT IS THEREFORE ORDERED that plaintiff’s Motion for Extension
of Time to File Response (Doc. 10) is dismissed as moot, and
plaintiff’s Motion to Order Defendant to Respond to Complaint (Doc.
13) is denied.
IT IS FURTHER ORDERED that this action is dismissed pursuant
to 28 U.S.C. § 1915A(a) and (b) for failure to state facts to support
a federal constitutional claim.
IT IS SO ORDERED.
Dated this 28th day of August, 2014, at Topeka, Kansas.

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

19