Baily (ID 105482) v. Ash

Filing 3

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted thirty (30) days in which to satisfy the filing fee prerequisites by submitting a properly completed and supported motion for leave to proceed in forma pauperis upon court-approved forms. Within th e same thirty-day period, plaintiff is required to submit his complaint upon court-provided forms and to cure all the deficiencies herein, or this action may be dismissed without further notice. Signed by Senior District Judge Sam A. Crow on 12/18/2013. (Mailed to pro se party BJ D. Baileyby regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BJ D. BAILEY,1
Plaintiff,
v.

CASE NO.

13-3191-SAC

DONALD ASH, Sheriff,
Defendant.
MEMORANDUM AND ORDER
This pro se civil rights complaint was filed pursuant to 42
U.S.C. § 1983 by an inmate of the Lansing Correctional Facility,
Lansing, Kansas.

Plaintiff claims that he was unlawfully detained

in jail for 16 days in June 2012, and that defendant failed to “resolve
the problem.”

Having examined the materials filed, the court finds

that the complaint is deficient in several respects.

Plaintiff is

given time to cure the deficiencies, which are discussed herein.

If

he fails to comply within the time prescribed, this action may be
dismissed without further notice.

FILING FEE
The fees for filing a civil rights complaint total $400.00 and
include the statutory fee of $350.00 plus an administrative fee of
$50.00.

For one granted leave to proceed in forma pauperis the fee

1
Mr. Bailey’s last name is misspelled in his pleadings. The correct spelling
is Bailey according to his KDOC records. The clerk is directed to change this
name on the docket to the correct spelling.

1

is $350.00.

Plaintiff has filed a Motion for Leave to Proceed in

forma pauperis (Doc. 2).

However, his motion is inadequate in that

it is not upon court-approved forms as required by local court rule
and is not supported with the financial information required by
federal law.

28 U.S.C. § 1915 requires that a prisoner seeking to

bring a civil action without prepayment of fees submit an affidavit
described in subsection (a)(1) and a “certified copy of the trust
fund

account

statement

(or

institutional

equivalent)

for

the

prisoner for the 6-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).

The clerk is directed to send appropriate forms to plaintiff and he
is given time to submit a proper motion together with the requisite
certified account statement.
Plaintiff is reminded that under 28 U.S.C. § 1915(b)(1) being
granted leave to proceed without prepayment of fees will not relieve
him of the obligation to pay the full filing fee.

Instead, it merely

entitles him to pay the fee over time through payments automatically
deducted from his inmate account as funds become available.2
Furthermore, § 1915(b)(1) requires the court to assess an
initial partial filing fee of twenty percent of the greater of the

2

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

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average monthly deposits or average monthly balance in the prisoner’s
account for the six months immediately preceding the date of filing
of the complaint.

An appropriate partial fee will be assessed after

plaintiff’s financial information is received.

FORM COMPLAINT REQUIRED
Local court rule also requires that a civil rights complaint
filed by an inmate be submitted upon court-approved forms.

The clerk

is directed to send plaintiff the requisite forms, and plaintiff is
given time to submit his complaint upon these forms.
forewarned

that

if

he

fails

to

comply

with

Plaintiff is

the

foregoing

prerequisites, this action may be dismissed without further notice.

FACTUAL ALLEGATIONS AND CLAIMS
As the factual basis for this complaint, Mr. Bailey alleges as
follows.

On June 5, 2012, he appeared with counsel before a judge

at the Wyandotte County Courthouse in Case No. 2012-CR-000415.

The

judge, “by agreement and/or contract with the State of Kansas”
ordered Mr. Bailey released on his own recognizance.

Plaintiff was

not released on June 5 as he expected, and was instead illegally
detained at the Wyandotte County Jail until June 21, 2012.

Plaintiff

contacted defendant Ash seeking his help in resolving the problem,
but defendant did not respond.

Defendant Ash and “Wyandotte County”

had knowledge and notice of “these . . . practices” and “police
3

misconduct” but have taken no “effective action to prevent Wyandotte
County Sheriffs police personnel from continuing to engage in this
type of misconduct.”

Defendants have not taken steps to train,

correct or discourage this abuse of authority, and have condoned the
misconduct.

Plaintiff claims that his detention from June 5 to June

21 was “contrary to the laws of the State of Kansas and the United
States

Constitution.”

He

also

claims

that

the

“conduct

of

defendants Ash and Wyandotte County” amounted to “gross negligence
under state law.”

Plaintiff seeks compensatory and punitive damages

as well as attorney fees and costs.

SCREENING
Because Mr. Bailey 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.

1915(e)(2)(B).

28

U.S.C.

§

1915A(a)

and

(b);

28

U.S.C.

§

“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
4

than formal pleadings drafted by lawyers.”
U.S. 89, 94 (2007).

Erickson v. Pardus, 551

In addition, the court accepts all well-pleaded

allegations in the complaint as true.
910, 913 (10th Cir. 2006).

Anderson v. Blake, 469 F.3d

On the other hand, a pro se litigant’s

“conclusory allegations without supporting factual averments are
insufficient to state a claim.”
(10th Cir. 1991).

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

The complaint must offer “more than labels and

conclusions, and a formulaic recitation of the elements of a cause
of action.”
(2007).

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

Its “factual allegations must be enough to raise a right

to relief above the speculative level” (id.), and “to state a claim
to relief that is plausible on its face.”

Id. at 570.

The court

“will not supply additional factual allegations to round out a
plaintiff’s complaint or construct a legal theory on plaintiff’s
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.

behalf.”
1997).

Having applied these standards to the complaint filed

herein, the court finds it is subject to being dismissed for the
following reasons.

FAILURE TO PROPERLY DESIGNATE AND SHOW PERSONAL PARTICIPATION OF EACH
DEFENDANT
The only defendant named in the caption of the complaint is
Sheriff Donald Ash.

Plaintiff refers to “defendant Wyandotte

County” once in the body of his complaint.
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Rule 10 of the Federal

Rules of Civil Procedure requires that all defendants be named in
the caption.

In the form complaint that Mr. Bailey is required to

submit, he must name all defendants in the caption.

Anyone not named

in the caption will not be treated as a defendant.
Even if Wyandotte County were a properly-designated defendant,
plaintiff’s bald references to knowledge of “institutionalized
practices” and failure to train are insufficient to plead liability
on the part of this municipality.

A “plaintiff seeking to impose

liability on a municipality under § 1983” is required “to identify
a municipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury.”
Dodds v. Richardson, 614 F.3d 1185, 1202 (10th Cir. 2010)(quoting
Board of County Com’rs of Bryan County, Okl. v. Brown, 520 U.S. 397,
403 (1997)).

Plaintiff does not describe any policy or custom, the

enforcement of which caused his injury.
Plaintiff does not state sufficient facts to show that defendant
Ash personally participated in the alleged violation of his federal
constitutional rights.

Plaintiff alleges only that he asked Ash to

resolve “his problem” and that Ash failed to respond.

He does not

establish that Ash had a duty or the authority to release him from
detention. 3

Plaintiff may not assign liability to defendant Ash

solely on the basis of respondeat superior or by simply alleging that
Ash failed to respond to a grievance.

3
Plaintiff’s own exhibit indicates that even if the judge ordered him released
on his own recognizance in his 2012 case, other legal authority existed for his
continued detention.

6

FAILURE TO STATE A FEDERAL CONSTITUIONAL CLAIM
Plaintiff’s

own

exhibit

indicates

that

his

county

jail

detention during the 16 days in question had a legitimate basis and
was not the result of an unconstitutional policy.

The “Letter of

Incarceration” attached to his complaint shows that he was held in
the Wyandotte County Jail from March 26 to June 21 of 2012 on three
matters, not on Case No. 12 CR 415 alone.4

He was confined based upon

a KCK bench warrant and a probation violation in Case No. 09 CR 0708
in addition to the 2012 burglary charge.

It thus appears that there

were legitimate reasons for plaintiff’s continued detention.
Furthermore, plaintiff’s allegations that his Fourth, Fifth,
and Eighth Amendment rights were violated are nothing more than
conclusory statements.

Unless plaintiff alleges facts showing the

violation of a federal constitutional right, this court has no
jurisdiction to consider his “state law theories.”

The court

further notes that claims of false imprisonment and negligence
actionable under state law are not grounds for relief in federal court
under 42 U.S.C. § 1983.
Finally, the court notes that plaintiff’s claim of illegal

4
The court takes judicial notice of Wyandotte County Case No. 12 CR 415
referenced by petitioner in which he was convicted of burglary and sentenced on
July 20, 2012, and Wyandotte County Case No. 09 CR 708 in which Mr. Bailey was
convicted of burglary and sentenced in October 2009. Both these sentences are
active according to the offender information available on-line as to Mr. Bailey
through KASPER.

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detention should have been presented in the first instance by way
of a habeas corpus petition in state court.

However, when Mr. Bailey

filed this action, he was apparently no longer in the custody that
is alleged to have been illegal, so that this claim was already moot.

MONEY DAMAGES CLAIM BARRED
In any event, plaintiff’s claim for compensatory damages is
barred by federal statute.

42 U.S.C. § 1997e(e) provides, in

pertinent part: “No Federal civil action may be brought by a prisoner
confined in a jail, prison, or other correctional facility, for
mental or emotional injury suffered while in custody without a prior
showing of physical injury.”

Id.

Plaintiff does not state any

facts showing that a physical injury resulted from his 16 days of
allegedly illegal detention.

Lack of injury also appears from the

fact that Mr. Bailey was being detained under other lawful authority.
Plaintiff’s claim for punitive damages is likewise not supported by
factual allegations showing bad motive on the part of the named
defendant.
IT IS THEREFORE ORDERED that plaintiff is granted thirty (30)
days in which to satisfy the filing fee prerequisites by submitting
a properly completed and supported motion for leave to proceed in
forma pauperis upon court-approved forms.
IT IS FURTHER ORDERED that within the same thirty-day period
plaintiff is required to submit his complaint upon court-provided
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forms and to cure all the deficiencies discussed herein, or this
action may be dismissed without further notice.
The clerk is directed to send ifp and 1983 forms to plaintiff
and to correct the spelling of his last name on the docket to Bailey.
IT IS SO ORDERED.
DATED:

This 18th day of December, 2013, at Topeka, Kansas.

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

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