Coates (ID 89545) v. Beautner et al
Filing
4
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 without prejudice. Signed by Senior District Judge Sam A. Crow on 9/18/2013. (Mailed to pro se party Floyd Clifford Coates, Jr. by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
FLOYD CLIFFORD COATES, JR.,
Plaintiff,
v.
CASE NO. 13-3130-SAC
OFFICER BEAUTNER, et al.,
Defendants.
O R D E R
Plaintiff proceeds pro se on a complaint filed under 42 U.S.C.
' 1983 while plaintiff was incarcerated in the El Dorado Correctional
Facility in El Dorado, Kansas (EDCF).
Before the court is plaintiff=s
motion for leave to proceed in forma pauperis under 28 U.S.C. § 1915.
Motion for In Forma Pauperis, 28 U.S.C. § 1915
Plaintiff must pay the full district court filing fee in this
civil action.
See 28 U.S.C. ' 1915(b)(1)(prisoner bringing a civil
action or appeal in forma pauperis is required to pay the full filing
fee).
If granted leave to proceed in forma pauperis, plaintiff is
entitled to pay the $350.00 district court filing fee over time, as
provided by payment of an initial partial filing fee to be assessed
by the court under 28 U.S.C. ' 1915(b)(1) and by periodic payments from
plaintiff's inmate trust fund account as authorized in 28 U.S.C. '
1915(b)(2).
Pursuant to 28 U.S.C. ' 1915(b)(1), the court is required
to assess an initial partial filing fee of twenty percent of the
greater of the average monthly deposits or average monthly balance
in the prisoner's account for the six months immediately preceding
the date of filing of a civil action.
Having reviewed plaintiff’s motion, the court finds no initial
partial filing fee may be imposed at this time due to plaintiff's
limited resources, and grants plaintiff leave to proceed in forma
pauperis.
See 28 U.S.C. ' 1915(b)(4)(where inmate has no means to pay
initial partial filing fee, prisoner is not to be prohibited from
bringing a civil action).
Plaintiff remains obligated to pay the full
$350.00 district court filing fee in this civil action, through
payments from his inmate trust fund account as authorized by 28 U.S.C.
' 1915(b)(2).
Screening of the Complaint, 28 U.S.C. § 1915A
Because plaintiff is a prisoner seeking relief from employees
of a governmental entity, the court must conduct an initial screening
of the complaint.
See 28 U.S.C. ' 1915A(a).
In conducting the
screening, the court must identify any viable claim and must dismiss
any part of the action which 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 such relief.
See 28 U.S.C. '
1915A(b).
A pro se party=s complaint must be given a liberal construction.
Erickson v. Pardus, 551 U.S. 89 (2007).
However, a party proceeding
pro se has Athe burden of alleging sufficient facts on which a
recognized legal claim could be based.@
1106, 1110 (10th Cir.1991).
Hall v. Bellmon, 935 F.2d
To state a claim for relief, the
complaint must present allegations of fact, assumed to be true, that
Araise a right to relief above the speculative level.@
Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Bell Atlantic
The complaint must
present Aenough facts to state a claim to relief that is plausible on
its face.@
Id. at 570.
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.
Having considered the complaint, the court finds it is subject
to being dismissed without prejudice for the following reason.
In this action, plaintiff seeks damages on allegations that while
he was confined in the EDCF Reception and Diagnostic Unit (EDCF-RDU),
defendants Beutner and McNutt intentionally closed his cell door on
him three times in May 2013, once injuring plaintiff’s foot, once
damaging the cast on plaintiff’s foot, and once catching plaintiff’s
wheelchair.1
Plaintiff also alleges one defendant commented that the
next time plaintiff’s head would be caught in the cell door.
The Prison Litigation Reform Act (PLRA) requires that a prisoner
exhaust his administrative remedies before bringing a lawsuit for
violation of his federally protected rights.
See 42 U.S.C. §
1997e(a)(“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.”).
“[T]he PLRA's exhaustion requirement applies to all inmate suits about
prison life, whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some other
wrong.”
Porter v. Nussle, 534 U.S. 516, 532 (2002).
A prisoner’s compliance with the exhaustion requirement in §
1997e(a) is not jurisdictional, but rather is an affirmative defense
to be raised by defendants opposing the prisoner’s suit.
Bock, 549 U.S. 199, 216 (2007).
1
Jones v.
Thus a prisoner is not required to
Because plaintiff had been transferred out of EDCF-RDU by the time he filed
his complaint, his request for a temporary restraining order to prevent further harm
while confined in EDCF-RDU was rendered moot.
plead or demonstrate in his complaint that he has exhausted available
administrative remedies.
Id.
But when it is clear from the face of
the complaint that he has failed to do so and that his failure to
exhaust is not due to the action or inaction of prison officials that
thwarted the prisoner’s attempt to exhaust, summary dismissal of the
complaint
without
Aquilar-Avellaveda
prejudice
v.
may
Terrell,
478
be
appropriate.
F.3d
1223,
1225
See
(10th
Cir.2007)(district court can dismiss prisoner complaint for failure
to state a claim if it is clear on the face of the complaint that the
prisoner has not exhausted available administrative remedies); Little
v. Jones, 607 F.3d 1245, 1250 (10th Cir.2010)(“an administrative
remedy is not ‘available’ under the PLRA if prison officials prevent,
thwart, or hinder a prisoner's efforts to avail himself of the
administrative remedy”).
In the present case, plaintiff expressly indicates in his
complaint that he had not exhausted administrative remedies at EDCF,
and stated further only that EDCF officials “failed to even look into
the
incident.”
The
court
finds
plaintiff’s
affirmative
acknowledgment of failing to exhaust administrative remedies is
sufficient to consider summary dismissal of the complaint, but will
first grant plaintiff an opportunity to demonstrate that established
EDCF administrative remedies were not available to him under the
circumstances.
Plaintiff is thus directed to show cause why the complaint should
not
be
summarily
acknowledgment
remedies.
of
dismissed
his
failure
based
to
upon
first
plaintiff’s
exhaust
clear
administrative
The failure to file a timely response may result in the
complaint being dismissed without prejudice pursuant to 42 U.S.C.
1997e(a), and without further prior notice to plaintiff.
IT IS THEREFORE ORDERED that plaintiff=s motion for leave to
proceed in forma pauperis is granted, with payment of the $350.00
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
without prejudice.
A copy of this order shall be mailed to plaintiff and to the
Centralized Inmate Banking office for the Kansas Department of
Corrections.
IT IS SO ORDERED.
DATED:
This 18th day of September 2013 at Topeka, Kansas.
s/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?