Batista v. Watson et al

Filing 3

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. Signed by Senior District Judge Sam A. Crow on 11/5/2013. (Mailed to pro se party Raul Batista by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

RAUL BATISTA,
Plaintiff,
v.

CASE NO. 13-3152-SAC

JARED WATSON, et al,
Defendants.

O R D E R
This matter comes before the court on a complaint seeking relief
under 42 U.S.C. § 1983, filed pro se by a prisoner incarcerated in
a Kansas Correctional Facility.

Also before the court is plaintiff’s

motion for leave to proceed in forma pauperis.
Motion for Leave to Proceed In Forma Pauperis
Plaintiff must pay the full $350.00 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 this 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 considered the sparse financial records provided by
plaintiff, 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 the Complaint, 28 U.S.C. § 1915A
A federal court must conduct an initial screening of any action
in which a prisoner seeks relief from a governmental entity or an
officer or employee of such an entity.

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.
28 U.S.C. ' 1915A(b).

See

While a pro se complaint must be given a liberal

construction, Erickson v. Pardus, 551 U.S. 89 (2007), plaintiff still
bears Athe burden of alleging sufficient facts on which a recognized
legal claim could be based.@

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

(10th Cir.1991).
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.@
U.S. 544, 555 (2007).

Bell Atlantic Corp. v. Twombly, 550

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 summarily dismissed for the following reasons.
Plaintiff names the following three defendants in his complaint:
Douglas Burris, as the Kansas Department of Corrections Secretary
Designee; James Heimgartner, as the facility warden; and Jared Watson,
as the administrative supervisor of the B cellhouse.
Plaintiff broadly claims he is being denied meaningful review
of his continued administrative segregation because he is not
proficient in the English language and translation assistance is not
provided

during

periodic

reviews

of

his

segregation

status.

Plaintiff provides copies of administrative grievance responses
informing plaintiff that his request for translation help with “legal
work” was denied because staff declined to help plaintiff with civil
matters, and that plaintiff’s requests for translation help from
inmates pursuant to the manual for Internal Management Policies and
Procedures (IMPP) were denied because the IMPP did not authorize
translation assistance from other inmates.1
On these allegations plaintiff broadly claims violations of the
Due Process Clause and the American Disabilities Act (ADA), and he
seeks damages for the violation of his rights and for mental anguish.
However, plaintiff’s bare and conclusory claims fail to provide

1

The administrative grievance responses provided also informed plaintiff
that disciplinary matters were not subject to the grievance procedure, but plaintiff
does not identify any specific disciplinary action at issue regarding his
allegations.

any factual basis for plausibly establishing a viable claim for relief
against

any

of

the

named

defendants.

See

Hall,

935

at

110("[C]onclusory allegations without supporting factual averments
are insufficient to state a claim on which relief can be based.")
(citing cases).

"[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."

Id.

Additionally, “for liability to arise under § 1983, a defendant's
direct personal responsibility for the claimed deprivation of a
constitutional right must be established.”
F.3d 1210, 1227 (10th Cir.2006)).

Trujillo v. Williams, 465

A defendant cannot be held liable

in a civil rights action based solely upon his or her supervisory
capacity.

Sandifer v. Green, 126 Fed.Appx. 908, 909 (10th Cir.205).

Nor can personal participation be shown based solely upon one’s denial
of an administrative grievance.
1069 (10th Cir.2009).

Gallagher v. Shelton, 587 F.3d 1063,

Accordingly, to the extent plaintiff names

Heimgartner and Burris as defendants only because they reviewed and
denied plaintiff’s administrative appeals, this is insufficient to
establish each defendant’s personal participation in the alleged
violation of plaintiff’s rights.
Accordingly, absent amendment of the complaint to clarify
plaintiff’s claims and to provide a sufficient factual basis for
proceeding against any of the three named defendants, the complaint
is subject to being summarily dismissed as stating no claim upon which
relief can be granted under § 1983 or the ADA.

Notice and Show Cause Order to Plaintiff
Plaintiff is thereby directed to show cause why the complaint
should not be summarily dismissed pursuant to 42 U.S.C. § 1983.

28

U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2)(B). The failure to file a
timely response may result in the complaint being summarily dismissed
for the reasons stated herein, and without further prior notice to
plaintiff.
IT IS THEREFORE ORDERED that plaintiff=s motion for leave to
proceed in forma pauperis (Doc. 2) 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
pursuant to 28 U.S.C. § 1915A(b) and 28 U.S.C. § 1915(e)(2)(B).
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 5th day of November 2013 at Topeka, Kansas.

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