Logue v. Saline County, KS Sheriff Department et al
Filing
6
MEMORANDUM AND ORDER granting plaintiff thirty (30) days in which to satisfy the filing fee requirement by either paying the fee of $400.00 in full or submitting a properly completed and supported motion for leave to proceed without prepayment o f 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 plaintiffs Motion for Appointment of Counsel 3 is denied, without prejudice. Signed by District Judge Sam A. Crow on 10/15/2013. Mailed to pro se party Roger Lewis Logue, Sr. by regular mail. (ms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROGER LEWIS LOGUE, Sr.,
Plaintiff,
v.
CASE NO.
13-3151-SAC
SALINE COUNTY, KS
SHERIFF DEPARTMENT, 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 Saline County Jail in Salina, Kansas.
The
case was filed by Mr. Logue in the United States District Court for
the Western District of Missouri, and that court transferred the
matter to this district court.
Having considered the materials
filed, the court finds that the complaint is deficient and gives
plaintiff time to cure the deficiencies.
FILING FEE
The transferor court granted plaintiff provisional leave to
proceed in forma pauperis subject to modification by this court.
court modifies the order.
The
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 it is $350.00.
Plaintiff has neither paid the fee
1
nor submitted an adequately-supported Motion 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 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 is directed to provide 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 amount of the 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. 1
If Mr. Logue 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 would 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
As the factual background for his complaint, Mr. Logue alleges
as follows.
In November 2012, while he was confined at the Saline
County Jail, Officer Sites grabbed his Quran and scolded him by
saying: “This is an evil book, and all Muslims are an evil murderous
race.”
Sites also asked plaintiff how he could read and practice
such a religion.
Plaintiff seeks $10,000,000 in punitive damages
and parole as a result of this incident.
SCREENING
Because Mr. Logue 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).
3
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
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.”
The plaintiff must allege “enough facts to
state a claim to relief that is plausible on its face.”
Id. at 570.
DISCUSSION
The court finds plaintiff’s complaint is deficient in several
respects.
First,
plaintiff
does
not
specify
any
federal
constitutional right in the complaint and assert that it was
violated.
Second, Mr. Logue alleges no facts indicating that what occurred
was other than a brief, isolated incident.
his Quran was confiscated or destroyed.
He does not allege that
With respect to what was
said to plaintiff, words spoken by a jail guard, even if inappropriate
and unprofessional, without more, do not amount to a federal
4
constitutional violation.
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.”); Collins v. Cundy, 603 F.2d 825, 827
(10th Cir. 1979)(holding that sheriff’s action in laughing at
detainee and threatening to hang him were not sufficient to state
a constitutional deprivation under 42 U.S.C. § 1983); Edwards v.
Gilbert, 867 F.2d 1271, 1274 n. 1 (11th Cir. 1989)(“[A] petitioner
must allege more than that he has been subjected to verbal taunts
however distressing in order to make a claim that jailers have . .
. deprived the petitioner of his constitutional rights.”); see also
Ragland v. Romer, 73 F.3d 374 (Table)(10th Cir.), cert. denied, 518
U.S. 1025 (1996)(unpublished order cited for reasoning)(“Courts have
consistently held that acts or omissions resulting in an inmate being
subjected to nothing more than threats and verbal taunts do not
violate the Eighth Amendment.”).
Third, plaintiff sues five defendants, but the only defendant
alleged to have taken part in the incident is Officer Sites.
An
essential element of a civil rights claim against an individual is
that person’s direct personal participation in the acts or inactions
upon which the complaint is based.
Trujillo v. Williams, 465 F.3d
1210,
defendant’s
1227
(10th
Cir.
2006)(A
direct
personal
responsibility for the claimed deprivation of a constitutional right
must be established); Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th
5
Cir.
1996);
Olson
v.
Stotts,
9
F.3d
1475,
1477
(10th
Cir.1993)(affirming district court’s dismissal where “plaintiff
failed
to
Plaintiff
allege
does
personal
not
allege
participation
facts
showing
of
the
the
defendants”).
direct
personal
participation of any defendant other than Sites.
Fourth,
damages.
plaintiff
seeks
millions
of
dollars
in
punitive
However, he alleges insufficient facts in support.
Punitive damages “are to be awarded only when ‘the defendant’s
conduct is shown to be motivated by evil motive or intent, or when
it involves reckless or callous indifference to the federally
protected rights of others.’”
Jolivet v. Deland, 966 F.2d 573, 577
(10th Cir. 1992)(quoting Smith v. Wade, 461 U.S. 30, 56 (1983)).
Finally, to the extent that plaintiff seeks release on parole,
his claim fails because the named defendants are not shown to have
authority to grant him parole release.
Moreover, a claim for release
from confinement is not cognizable in a § 1983 action, and may only
be sought in a habeas corpus petition.
For all the foregoing reasons, the court finds that this action
is subject to dismissal under 28 U.S.C. § 1915A(a) and (b); as well
as 28 U.S.C. § 1915(e)(2)(B) as frivolous and for failure to state
a claim.
Plaintiff is given time to show cause why this action should
not be dismissed for the reasons set forth herein.
If he fails to
show good cause within the time allotted, this action will be
dismissed without further notice and will count as a strike against
6
Mr. Logue pursuant to 28 U.S.C. § 1915(g).2
Plaintiff’s motion for appointment of counsel (Doc. 3) is denied
because it is unlikely that the complaint will survive screening.
IT IS THEREFORE ORDERED that plaintiff is granted thirty (30)
days in which to satisfy the filing fee requirement by either paying
the fee 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 Appointment
of Counsel (Doc. 3) is denied, without prejudice.
The clerk is directed to send IFP forms to plaintiff.
IT IS SO ORDERED.
Dated this 15th day of October, 2013, at Topeka, Kansas.
2
Section 1915(g) of 28 U.S.C. provides:
In no event shall a prisoner bring a civil action or appeal a judgment
in a civil action or proceeding under this section if the prisoner
has, on 3 or more prior occasions, while incarcerated or detained in
any facility, brought an action or appeal in a court that is frivolous,
malicious, or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious physical
injury.
Id.
7
s/Sam A. Crow
U. S. Senior District Judge
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