Milo (ID 101994) v. Suro et al

Filing 3

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted thirty (30) days in which to satisfy the fee prerequisites by either paying the filing and administrative fees of $400.00 in full or submitting a properly completed and supported motion for lea ve to proceed without prepayment of fees on court-provided forms. Within the same thirty-day period, plaintiff is required to show cause why this action should not be dismissed. Plaintiff's motion 2 for restraining order is denied. Signed by Senior District Judge Sam A. Crow on 8/14/2013. (Mailed to pro se party Gregory John Milo by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

GREGORY JOHN MILO,
Plaintiff,
v.

CASE NO.

13-3116-SAC

STEFANY SURO, 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 Hutchinson Correctional Facility (HCF),
Hutchinson, Kansas.

Plaintiff seeks millions of dollars in damages

based upon two counts in his complaint: (1) sexual misconduct and
(2) defamation of character.

Having examined the materials filed,

the court finds that plaintiff has made no attempt to satisfy the
filing

fee

prerequisites

and

deficiencies in the complaint.

that

there

are

other

threshold

Mr. Milo is given time to satisfy

the filing fee and cure the deficiencies.

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

Mr. Milo has neither paid the fee nor submitted a motion
1

to proceed without Prepayment of Fees.

This action may not proceed

until the filing fee is satisfied in one of these two ways.

28 U.S.C.

§ 1915 requires that a prisoner seeking to bring an action without
prepayment of fees submit a motion on court-approved forms that
contains an affidavit described in subsection (a)(1), together with
a

“certified

copy

of

the

trust

fund

account

statement

(or

institutional equivalent) for the prisoner for the six-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).

Local court rule requires that

this motion be submitted upon court-approved forms.

The clerk shall

be directed to provide plaintiff with forms for filing a proper motion
under 28 U.S.C. § 1915(a).
Plaintiff is reminded that under 28 U.S.C. § 1915(b)(1), being
granted leave to proceed without prepayment of fees does not relieve
him of the obligation to pay the full filing fee.

Instead, it

entitles him to pay the fee over time through payments automatically
deducted from his inmate trust fund account as funds become available
pursuant to 28 U.S.C. § 1915(b)(2).1

If Mr. Milo does not satisfy

the filing fee within the time prescribed by the court, this action
may be dismissed without prejudice and without further notice.

1

Pursuant to § 1915(b)(2), the Finance Office of the facility where plaintiff
is currently confined will be directed 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.

2

FACTUAL BACKGROUND AND CLAIMS
Plaintiff names as defendants Stefany Suro, Unit Team/CC II,
HCF and “Hutchinson Correctional Facility (Sam Cline).”

As the

factual background for his complaint, Mr. Milo alleges as follows.
For up to a month he had a “mutual relationship” with defendant Suro,
while she was an employee at the HCF.

This relationship involved

fondling and kissing, and plaintiff received “sexual material” from
defendant Suro.

After Suro told plaintiff that they had to end their

relationship, Mr. Milo wrote a complaint to the Warden, the Secretary
of Corrections, and to Mental Health at HCF revealing the details
of their relationship.

He was placed under investigation.

investigation favored defendant Suro.

The

It was determined that

plaintiff was “lying and just blowing smoke” because he did not “keep
a log” and know exact dates.
Plaintiff received a disciplinary report (DR) for “Sexually
Explicit Materials” and pled guilty to this charge.

The Kansas

Department of Corrections (KDOC) maintains a website, “KASPER,”
which lists the DRs of each KDOC offender.

The Disciplinary Board

at the HCF “posted” plaintiff’s DR on KASPER as “Sex Explicit Mtrl,
n/SexOfndr.”
sex offender.

The entry is dated May 27, 2013.

Plaintiff is not a

He asked “them” in May and on June 24, 2013, to change

the KASPER entry, to no avail.

The entry can be read by anyone, and

his family believes he has been having sex with men at the HCF.
3

Plaintiff asserts that he has “a right for sexual misconduct
not to happen” to him and a right to be protected.

He seeks damages

of 3.1 million dollars “and punitive damages” for sexual misconduct,
pain and suffering, depression, and defamation of character.

SCREENING
Because Mr. Milo 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).

“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.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007).

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.”
(10th Cir. 1997).

Whitney v. New Mexico, 113 F.3d 1170, 1173-74
A pro se litigant’s “conclusory allegations

without supporting factual averments are insufficient to state a
4

claim upon which relief can be based.”
1106, 1110 (10th Cir. 1991).

Hall v. Bellmon, 935 F.2d

The complaint must offer “more than

labels and conclusions, and a formulaic recitation of the elements
of a cause of action.”
555

(2007).

To

Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

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.

Put another way,

there must be “enough facts to state a claim to relief that is
plausible on its face.”

Id. at 570.

DISCUSSION
The court has screened the complaint and finds the following
deficiencies.

First, plaintiff does not assert the violation of a

constitutional right.

Instead, he claims “sexual misconduct” by

defendant Suro and defamation of character by unnamed HCF officials,
which is not a constitutional violation.

As noted, in order 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.”
The court is not free to supply a constitutional theory for
plaintiff’s claim.

Plaintiff implies that he was not protected from

sexual misconduct.

However, he does not allege facts showing that

he made his need for protection known to no avail.
Second, it appears from the face of the complaint that Mr. Milo
has not exhausted administrative remedies on at least one and
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possibly both of his claims.

Under 42 U.S.C. § 1997e(a), “a prisoner

must exhaust his administrative remedies prior to filing a lawsuit
regarding prison conditions in federal court.”

Id.

Section

1997e(a) expressly provides:
No action shall be brought with respect to prison
conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison,
or other correctional facility until such administrative
remedies as are available are exhausted.
Id.

This exhaustion requirement “is mandatory, and the district

court [is] not authorized to dispense with it.”

Beaudry v.

Corrections Corp. of Am., 331 F.3d 1164, 1167 n. 5 (10th Cir. 2003),
cert. denied, 540 U.S. 1118 (2004); Little v. Jones, 607 F.3d 1245,
1249 (10th Cir. 2010). 2

While failure to exhaust generally is an

affirmative defense and a plaintiff is not required to plead
exhaustion in the complaint, when failure to exhaust is clear from
plaintiff’s filings, the court may sua sponte require plaintiff to
demonstrate exhaustion.

See Aquilar-Avellaveda v. Terrell, 478

F.3d 1223, 1225 (10th Cir. 2007)(acknowledging district courts may
raise exhaustion question sua sponte, consistent with 42 U.S.C. §
1997e(c)(1) and 28 U.S.C. §§ 1915 and 1915A, and dismiss prisoner
complaint for failure to state a claim if it is clear from face of
complaint that prisoner has not exhausted administrative remedies).

2
The “inmate may only exhaust by properly following all the steps laid out
in the prison system’s grievance procedures.” Id. at 1249 (citing Woodford v.
Ngo, 548 U.S. 81, 90 (2006)). “An inmate who begins the grievance process but
does not complete it is barred from pursuing a § 1983 claim . . . .” Id. (citing
Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002)).

6

With regard to plaintiff’s claim of defamation of character,
he alleges that he sought administrative relief by asking “the
facility Disciplinary Board” in May and on June 24, 2013, to fix the
KASPER entry.

Plaintiff executed the instant complaint on June 25,

2013, which was only a day later.

Moreover, he does not allege that

he sought relief at the second, third, or fourth administrative
level.3

It is therefore evident that plaintiff had not fully and

properly exhausted all four levels of the available grievance process
before filing his complaint.
In connection with plaintiff’s claim that he was the victim of
sexual misconduct, he alleges that he sought administrative relief
by requesting the placement of a “Central Monitor” on defendant Suro
and his own transfer to another facility.4

However, neither of these

measures is prayed for in this complaint or shown to be warranted
at this time.

Nor does it appear that these measures were sought

through administrative channels while the alleged sexual misconduct
was occurring.

In this action plaintiff seeks monetary compensation

only, based upon the claim that he suffered pain and depression as

3

The KDOC makes available to its inmates a four-step grievance procedure,
which must begin with an attempt at informal resolution, and thereafter proceed
through three “levels of problem solving.” KS ADC 44-15-101, -102. The second
level is a grievance submitted to a Unit Team member. KS ADC 44-15-101(d). Next,
the inmate has an appeal to the Warden, and ultimately to the Secretary of
Corrections. Id.
4

Male as well as female inmates are unquestionably entitled to protection
from sexual misconduct. However, plaintiff does not allege that he reported the
sexual misconduct while it was occurring and sought protection that was refused
or inadequately provided. Nor does he allege facts showing that he is presently
in danger of being subjected to sexual misconduct.

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a result of the past sexual misconduct.
From plaintiff’s own allegations regarding exhaustion, the
court finds that this complaint is subject to being dismissed without
prejudice pursuant to 28 U.S.C. §§ 1915A, 1915(e)(2)(B)(ii), and 42
U.S.C.

§

1997e(c)(1),

for

failure

to

exhaust

all

available

administrative remedies on the claims raised herein prior to filing
this action.

Plaintiff is given time to provide copies or summaries

of his grievances and the administrative responses demonstrating
that he fully exhausted both his claims.

If he does not present facts

or documents showing full exhaustion within the time allotted, this
action may be dismissed without further notice.
Finally, the court notes that plaintiff has not named a proper
defendant with regard to his claim of character defamation.

The HCF

is not a “person,” and is therefore not a proper defendant in a §
1983 complaint for damages.

Warden Sam Cline is not alleged to have

“personally participated” in posting or maintaining the KASPER entry
and may not be held liable for damages based solely upon his
supervisory capacity.

Plaintiff’s own allegations attribute the

KASPER posting to “the disciplinary board,” but no individual board
member is named as a defendant.
The court concludes that the complaint is subject to be
dismissed for the foregoing reasons.

Plaintiff is given time to cure

the deficiencies discussed herein or to otherwise show cause why this
action should not be dismissed.

If he fails to comply within the
8

prescribed time, this action may be dismissed without further notice.
Plaintiff has recently filed a Motion for Restraining Order
(Doc. 2).

Therein he complains of the “corrupt investigation.”

also attempts to raise a new claim of retaliation.

He

He claims to fear

retaliation not from the named defendants, but from “another inmate
who claimed ‘she was his’” and threatened that “the Mexican gang”
would attack plaintiff.

Mr. Milo asks to be “moved away from these

people” because he is in danger and fear; however he does not even
show that the person he seeks to restrain is a party to this lawsuit.
Moreover, both a motion for a restraining order and a claim of
retaliation require a specific statement of supporting facts.
Plaintiff does not allege sufficient facts to demonstrate any of the
four factors that might entitle him to a preliminary restraining
order.

Likewise, his claim of retaliation is not supported by

sufficient facts.

In any event, in order to add these new claims

or any new parties to this lawsuit, plaintiff must file a complete
Amended Complaint.5

This motion for restraining order is denied as

not supported by sufficient factual allegations.

The claim of

retaliation was not added to this lawsuit by the mere filing of this
motion.
5

A plaintiff does not add a claim to his original complaint by simply filing
a motion or other paper in which he alleges an additional claim. Instead, in order
to add a claim that were not raised in the original complaint, a plaintiff must
file a complete Amended Complaint.
See Fed.R.Civ.P. Rule 15.
An Amended
Complaint completely supersedes the original complaint, and therefore must contain
all the claims that plaintiff intends to pursue in the action including those raised
in the original complaint. Any claims or allegations not included in the Amended
Complaint are not before the court.

9

IT IS THEREFORE ORDERED that plaintiff is granted thirty (30)
days in which to satisfy the fee prerequisites by either paying the
filing and administrative fees of $400.00 in full or submitting a
properly completed and supported motion for leave to proceed without
prepayment of fees on court-provided forms.
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 stated herein.
IT IS FURTHER ORDERED that plaintiff’s Motion for Restraining
Order (Doc. 2) is denied.
The clerk is directed to send IFP forms to plaintiff.
IT IS SO ORDERED.
Dated this 14th day of August, 2013, at Topeka, Kansas.

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

10