Gunn v. Wyandotte County Adult Detention Center et al
MEMORANDUM AND ORDER ENTERED: Plaintiff is granted thirty (30) days in which to submit to the court an initial partial filing fee of $7.00. Any objection to this order must be filed on or before the date payment is due. The failure to pay the fees as required herein may result in dismissal of this action without prejudice. Within the same thirty-day period, plaintiff is required to show cause why this action should not be dismissed. Signed by Senior District Judge Sam A. Crow on 2/11/2014. (Mailed to pro se party Michia A. Gunn by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MICHIA A. GUNN,
WYANDOTTE COUNTY ADULT
DETENTION CENTER, et al.,
MEMORANDUM AND ORDER
This pro se civil rights complaint was filed pursuant to 42
U.S.C. § 1983 by an inmate of the Wyandotte County Detention Center
Plaintiff claims that guards at the WCDC are negligent and
harass inmates and that Administrator Jeffrey has not resolved his
grievances on the matter.
He seeks release on parole as well as
Having examined the materials filed, the court assesses
an initial partial filing fee and requires plaintiff to show cause
why his complaint should not be dismissed for failure to allege facts
sufficient to state a federal constitutional claim.
The fees for filing a civil rights complaint in federal court
total $400.00 and consist of the statutory fee of $350.00 plus an
administrative fee of $50.00; or for one that is granted leave to
proceed in forma pauperis, the fee is $350.00.
Plaintiff seeks leave
to proceed without prepayment of fees (Doc. 2) and has submitted the
requisite affidavit and financial records in support of his motion.
He is reminded that being granted such leave does not relieve him
of the obligation to pay the filing fee in full.
Instead, it merely
entitles him to pay the fee over time through payments automatically
deducted from his inmate trust fund account.1
Furthermore, § 1915(b)(1), requires the court 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 the civil action.
Having examined the records of plaintiff’s
account, the court finds the average monthly deposit during the
relevant time period has been $ 37.34, and the average monthly balance
has been $ 0.00.
The court therefore assesses an initial partial
filing fee of $ 7.00, twenty percent of the average monthly deposit
rounded to the lower half dollar.
this partial fee to the court.
Plaintiff is given time to submit
His failure to comply may result in
dismissal of this action without further notice.
ALLEGATIONS AND CLAIMS
Plaintiff names as defendants Wyandotte County, also referred
Pursuant to § 1915(b)(2), the Finance Office of the facility where plaintiff
is currently confined will be 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.
to as the Wyandotte County Adult Detention Center (WCDC), and Jeffrey
Fewell, Administrator, WCDC.
As the factual background for this
complaint, Mr. Gunn alleges as follows.
On five dates in November
2013, he wrote grievances telling defendant Fewell “about how the
guards harass the inmates” and treat them badly in B3, but Fewell
has not resolved the situation.
On November 29, 2013, “a guy hung
himself because the guards wouldn’t answer the intercom or call
Mental Health down to talk to him,” and had “they” paid him more
attention he would be alive.
“we press the button.”
“They” never answer the intercom when
An officer called another inmate a “bitch”
because he wasted milk, and told plaintiff he was not suicidal because
he was conversing with inmates and should be put in an asylum and
straitjacket for life.
He claims negligence and harassment.
Plaintiff believes he is entitled to the following relief: (1)
the dropping of his charge from a level 3 to 4, (2) compensation for
negligence and harassment, (3) parole and (4) counseling.
Because Mr. Gunn 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 on 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).
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
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
addition, the court accepts all well-pleaded allegations in the
complaint as true.
Anderson v. Blake, 469 F.3d 910, 913 (10th Cir.
However, a pro se litigant’s “conclusory allegations without
supporting factual averments are insufficient to state a claim upon
which relief can be based.”
(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
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
The Tenth Circuit Court of Appeals has explained “that, to
state a claim in federal court, a complaint must explain what each
defendant did to [the pro se plaintiff]; when the defendant did it;
how the defendant’s action harmed (the plaintiff); and, what specific
legal right the plaintiff believes the defendant violated.”
v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Center,
492 F.3d 1158, 1163 (10th Cir. 2007).
The court “will not supply
additional factual allegations to round out a plaintiff’s complaint
or construct a legal theory on plaintiff’s behalf.” Whitney v. New
Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
The court finds that the complaint is deficient in several ways.
First, plaintiff does not allege sufficient facts to indicate
liability on the part of either named defendant.
He fails to allege
facts showing liability on the part of Wyandotte County2 because he
does not describe a policy that was promulgated by county officials
and allege facts showing that this policy resulted in the conditions
of which he complains.
Nor does he allege sufficient facts to
establish the liability of the only other named defendant, Jail
Plaintiff alleges no facts showing that
defendant Fewell personally participated in the alleged failure to
respond to intercom calls or other alleged negligence or verbal
It is well-settled that defendant Fewell may not be held
liable solely on the basis of his supervisory capacity.
Nor may a
supervisor be held liable for upholding the prior acts of other jail
employees in ruling upon grievances.
In short, plaintiff fails to
allege a basis for relief against either of the named defendants.
Secondly, the general statements made by plaintiff do not amount
to adequate facts showing a federal constitutional violation.
Gunn very generally complains that unnamed guards have failed to
answer intercom calls, and that it could be an emergency call.
The Wyandotte County Detention Center is a facility, and not a “person”
suable under § 1983.
does not allege that on a particular date he personally made an
intercom call that was an emergency, which was not answered by the
person responsible for answering his call.
harm that resulted to him.
Nor does he describe any
He may not sue for damages based upon
harm that occurred to another inmate rather than him.
of verbal harassment, while reflective of unprofessional conduct on
the part of a jail employee, even if true do not amount to a federal
Mr. Gunn’s allegations of “us” being
“locked down” for talking too loudly, asking to go to their room ten
minutes before the hour, or for picking up paper off the top floor
do not include crucial facts, such as dates and conditions under which
plaintiff was locked down.
Plaintiff was aptly advised during the
administrative grievance process that in order to obtain relief he
must allege facts rather than simply make conclusory statements.
The same is true in a civil rights complaint.
Next, the court finds that plaintiff
entitlement to the relief he requests.
does not show
His requests for his charge
to be dropped and for parole are matters seeking speedier release,
which may only be raised by petition for writ of habeas corpus.
Claims for such relief may not be litigated in a civil rights
Plaintiff’s claim for counseling is not supported by any
facts whatsoever, such as that he requested counseling or was
diagnosed as in need of counseling but has been denied prescribed
or necessary treatment.
Finally, the court finds that plaintiff’s claim for damages is
not supported by facts showing that he suffered a physical injury.
As a consequence, it appears that his damages claim is barred under
42 U.S.C. § 1997e(e), which provides: “[n]o 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.”
For the foregoing reasons, the court concludes that the
complaint fails to allege sufficient facts to state a federal
constitutional claim and fails to state a claim on which relief may
Plaintiff is given time to show cause why his complaint
should not be dismissed for the reasons stated herein.
If he fails
to show good cause within the prescribed time, this action may be
dismissed without further notice.
IT IS THEREFORE ORDERED that plaintiff is granted thirty (30)
days in which to submit to the court an initial partial filing fee
of $ 7.00.
Any objection to this order must be filed on or before
the date payment is due.
The failure to pay the fees as required
herein may result in dismissal of this action without prejudice.
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 SO ORDERED.
Dated this 11th day of February, 2014, at Topeka, Kansas.
s/Sam A. Crow
U. S. Senior District Judge
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