Beauclair (ID 74638) v. High et al

Filing 7

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted thirty (30) days in which to show cause why this action should not be dismissed. Plaintiff's request 6 for service of summons is denied. Signed by Senior District Judge Sam A. Crow on 01/07/15. Mailed to pro se party Danny E. Beauclair by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DANNY E. BEAUCLAIR,
Plaintiff,
v.

CASE NO.

14-3020-SAC

DENNIS HIGH, et al.,
Defendants.
MEMORANDUM AND ORDER
This pro se civil rights complaint was filed pursuant to 42
U.S.C.

§

1983

by

Facility-Oswego

an

(OCF).

inmate

of

Plaintiff

the

El

claims

Dorado
that

a

Correctional
disciplinary

report charging him with forgery was false and written by a
correctional officer in retaliation for a grievance he wrote
against her.

The court finds that this action is subject to

dismissal

frivolous

as

and

for

failure

to

state

a

claim.

Plaintiff is given the opportunity to show good cause why this
action should not be dismissed.
Mr. Beauclair was previously given time to satisfy filing
fee prerequisites and has done so by paying the fees in full.

ALLEGATIONS AND CLAIMS
Plaintiff names as defendants: Staff Sgt. Dennis High, OCF;
Lt. Chrise Zenk, OCF; and Nancy Kemp, Nurse/RN, OCF.

1

As the

factual background for this complaint, he alleges as follows.
On

December

against

9,

2013,

defendant

other misconduct.1

Mr.

Nancy

Beauclair

Kemp

for

submitted

violating

a

IMPP

“grievance
02-118”

and

In this grievance, he claimed that at the

Informal Resolution stage2 Kemp “lied to cover-up the fact” that
plaintiff

“was

being

denied

adequate

medical

care”

that

was

causing him “needless pain and suffering” in violation of the
Eighth

Amendment.

A

KDOC

inmate

is

required

to

attach

his

Informal Resolution (IR) to his form-9 grievance in order to
verify

that

he

attempted

informal

resolution.3

However,

1

Plaintiff submitted 32 pages of exhibits with his complaint including
some administrative records from his disciplinary proceedings, but does not
provide a copy or detailed summary of the grievance in which he claimed that
defendant Kemp had lied regarding his medical care.
2

The Kansas Department of Corrections (KDOC) makes a multi-step
grievance procedure available to its inmates.
The process must begin “at
unit team level” with an attempt at informal resolution (KS ADC 44-15-101(b))
and thereafter proceed through three “levels of problem solving.” KS ADC 4415-101(d); 102.
If the attempt at informal resolution is unsuccessful, the
inmate next submits a grievance to a Unit Team member. KS ADC 44-15-101(d).
3

KS ADC 44-15-102(b) pertinently provides:
Grievance step two: complaint to the warden.
If any inmate
receives a response but does not obtain a satisfactory solution
to the problem through the informal resolution process within 10
calendar days, the inmate may fill out an inmate grievance report
form and submit it, within three calendar days after the deadline
for informal resolution, to a staff member for transmittal to the
warden.
(1) The inmate shall attach a copy of each inmate request form
used to attempt to solve the problem and shall indicate on the
inmate grievance report the following information:
* * *
(D) the name and signature of the responsible institution
employee . . . from whom the inmate sought assistance.
This
signature shall be on either an inmate request form or the
2

plaintiff

did

not

want

to

part

with

his

original

IR,

which

apparently had been signed by Kemp, and instead attached a copy
that he had handwritten

with “hand copy” at the top.4

Complaint, Doc. 1-1 at 14.

See

On this copy he handwrote Kemp’s

signature.
Defendant Kemp saw plaintiff’s Form 9 grievance and wrote a
Disciplinary

Report

(DR)

on

December

10,

2013,

charging

Mr.

Beauclair with a “Class One Offense.”

Plaintiff exhibits this

DR

described

(Doc.

1-1

at

23)

in

which

Kemp

the

“Alleged

Violation of Law or Rule” as:
44-12-1101
Attempt,
conspiracy,
accessory,
solicitation, liability for offenses of another.5
To
6
Wit 21-5823(a)(1)(2), forgery Class 1 Offence (sic).
grievance report form.
The date on which the help was sought
shall be entered by the employee on the form . . . .
Id.
Subsection (3)(F) provides that any “grievance report form may be
rejected by the warden if the form does not document any unit team action as
required for the preliminary informal resolution process.”
Finally, the
inmate may appeal to the Secretary of Corrections. Id.
4

Plaintiff’s own allegations indicate that he had used
tickets” allowance two years earlier, his photocopying “within
“disallowed,” and the warden as well as state court judges had
unrelated matters that he could submit handwritten rather
produced copies. Id.
5

up his “copy
KDOC” had been
advised him in
than machine-

It is not apparent how this language imparts a charge of forgery.

6

Section 21-5823, in pertinent part, defines the criminal offense of
forgery as follows:
(a) Forgery is, with intent to defraud:
(1) Making, altering, or endorsing any written instrument
in such manner that it purports to have been made, altered or
endorsed by another person . . . .
(2) issuing or distributing such written instrument
knowing it to have been thus made, altered or endorsed . . . .
3

Kemp reported in the DR that on December 10 she “received a
grievance with a form 9 and a letter attached” and that “[u]pon
reviewing the form 9” she “noticed signature and handwriting at
the

bottom

signature.”

of

the

form

9

as

not

my

hand

writing

nor

my

She noted that the papers were from Beauclair and

that the form 9 had “hand copy” written on it.
Kemp’s DR contained no evidence of the elements of forgery
and no evidence of plaintiff’s intent to defraud anyone.
15.

Id. at

Defendant Zenk, the shift supervisor, “read and approved”7

the DR and thus agreed that submitting a handwritten “copy” of
Kemp’s signature was forgery.
on December 11, 2013.
High

listened

to,

Zenk served plaintiff with the DR

On December 18 and 19, 2013, defendant

then

disregarded,

plaintiff’s

motion

to

dismiss based upon a lack of intent to defraud and conducted a
disciplinary hearing on the DR.
and

Kemp

testified

but

Plaintiff presented evidence,

presented

no

evidence

of

forgery.8

Hearing Officer High agreed with Kemp and Zenk that plaintiff’s

Id.
7

Under KS ADC 44-13-201(c)(3) and
team manager shall review and either
“assure that all necessary elements of
in the DR and that it is not an abuse of
8

(4), the “shift supervisor or unit
approve or disapprove” the DR and
the alleged violation are contained”
the disciplinary process.

In his “Declaration” attached to his complaint (Doc. 1-1 at 20),
plaintiff alleged that Kemp repeatedly answered “it was not my signature” to
his questions at the hearing.
He further alleged that High had consulted
with “others” and “all felt that I should not have made the hand copy and put
Kemp’s signature” on it. Id. at 22.

4

copying

of

plaintiff

Kemp’s

signature

guilty.

High

amounted

sanctioned

to

forgery

Beauclair

and

with

found

45

days

disciplinary segregation but suspended this punishment for 180
days.

High immediately imposed additional sanctions of 60 days

restrictions, a $20.00 fine, and 90 days loss of good time.
Plaintiff began “serving the punishment” on December 19, 2013.
He appealed the hearing officer’s decision; and on January 7,
2014, the Warden overturned plaintiff’s disciplinary conviction
finding that: “does not meet criteria.”
In Count II of his complaint, Mr. Beauclair claims that
defendant

High

violated

due

process

in

that

High

failed

to

provide a full and fair hearing, was not “an impartial decision
maker,”

found

forgery,”9

and

plaintiff
provided

guilty
no

“with

“written

no

evidence

disposition”

at

all

stating

of
the

evidence relied upon.
As Count I, plaintiff claims that defendant Kemp violated
his First and Fourteenth Amendment rights “to Free Speech of
Retaliation” and acted in an “arbitrary and capricious” manner.
As Count III, he claims that defendants Zenk and High violated
his First and Fourteenth Amendment rights “under ‘supervisory
liability’”

.

.

.

“of

defendant Nancy Kemp.”

‘retaliation’

of

‘Free

Speech’

with

In support, he alleges that defendants

9

Plaintiff alleges that defendant Kemp “did not enter any evidence” of a
forgery at the hearing and that her statement in the DR was relied upon
instead. The statement of the reporting officer is evidence.
5

Zenk and High were personally involved in the constitutional
violation by Kemp, knew of her violations but failed to act to
prevent

them,

plaintiff’s

and

unreasonably

handwritten

copy

approved

of

Kemp’s

the

DR

finding

signature

that

constituted

forgery when plaintiff had no intent to defraud.

He further

claims that the acts of defendants Zenk and High were “arbitrary
and capricious” and violated K.A.R. 44-13-403 and 44-13-409 and
that

defendant

Zenk

violated

his

duty

under

K.A.R.

44-13-

201(c)(3) and (4).10
Plaintiff seeks relief in the form of “an injunction to not
be transferred,”

as well as

nominal damages “in the maximum

amount” and punitive damages in the amount of $50,000.

SCREENING
Because Mr. Beauclair is a prisoner suing state officials,
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.
1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(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
10

Plaintiff’s allegations throughout of “deliberate indifference” and
“reckless disregard” to his constitutional rights are nothing more than
formulaic recitations and do not warrant further discussion.

6

must show that the alleged deprivation was committed by a person
acting under color of state law.”
48-49

(1988)(citations

West v. Atkins, 487 U.S. 42,

omitted);

Northington

F.2d 1518, 1523 (10th Cir. 1992).
pro

se

complaint

and

applies

pleaded

allegations

Jackson,

973

A court liberally construes a

“less

stringent

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

v.

standards

than

Erickson v. Pardus, 551

In addition, the court accepts all wellin

the

complaint

as

Blake, 469 F.3d 910, 913 (10th Cir. 2006).

true.

Anderson

v.

On the other hand,

“when the allegations in a complaint, however true, could not
raise

a

claim

appropriate.
(2007).

of

entitlement

to

relief,”

dismissal

is

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558

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.”

Twombly, 550 U.S. at 555.

Its

“factual allegations must be enough to raise a right to relief
above the speculative level” and “to state a claim to relief
that is plausible on its face.”

Id. at 555, 570.

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
7

the

defendant’s

specific

legal

violated.”

action
right

harmed

the

(the

plaintiff

plaintiff);
believes

and,

the

what

defendant

Nasious 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).

OTHER APPLICABLE LEGAL STANDARDS
1.

Due Process Challenges to Prison Disciplinary Proceedings
In Sandin v. Conner, 515 U.S. 472 (1995), the United States

Supreme

Court

made

clear

that

discipline

in

the

form

of

segregated confinement ordinarily does not present the sort of
“atypical, significant deprivation” that gives rise to a liberty
interest protected by the Due Process Clause.

See Sandin, 515

U.S. at 486; Talley v. Hesse, 91 F.3d 1411, 1412 (10th Cir.
1996); see McDiffert v. Stotts, 902 F. Supp. 1419, 1426 (D. Kan.
1995).

In Sandin, the Court reasoned that:

[S]tates
may
under
certain
circumstances
create
liberty interests which are protected by the Due
Process Clause (cites omitted).
But these interests
will be generally limited to freedom from restraint
which, while not exceeding the sentence in such an
unexpected manner as to give rise to protection by the
Due Process Clause of its own force, (cites omitted),
nonetheless imposes atypical and significant hardship
on the inmate in relation to the ordinary incidents of
8

prison life.
Sandin, 515 U.S. at 483-84.

Likewise, punishments of fines and

disciplinary segregation for a limited number of days generally
“fail to implicate a protected liberty interest.”

Hornsby v.

Jones, 392 Fed.Appx. 653, 655 (10th Cir. 2010)(citing Sandin, 515
U.S.

at

483–84,

requirements

set

487).
forth

Consequently,

in

Wolff

v.

the

due

McDonnell

process

simply

do

not

apply.
On the other hand, “[i]t is well settled that an inmate’s
liberty
denied

interest
without

in
the

his

earned

minimal

good

time

safeguards

credits

afforded

Process Clause of the Fourteenth Amendment.”

cannot

by

the

be
Due

Howard v. U.S.

Bureau of Prisons, 487 F.3d 808, 811 (10th Cir. 2007)(quoting
Mitchell

v.

Maynard,

80

F.3d

1433,

1444

(10th

Cir.

1996))(internal quotation marks omitted); Taylor v. Wallace, 931
F.2d 698, 700 (10th Cir. 1991)(quoting Ponte v. Real, 471 U.S.
491, 495 (1985)).

The United States Supreme Court has held,

however, that “[p]rison disciplinary proceedings are not part of
a criminal prosecution, and the full panoply of rights due a
defendant in such proceedings does not apply.”

Instead, the

Supreme

interest

Court

implicated

in

has

held

prison

that

when

disciplinary

a

liberty

proceedings,

the

is

charged

inmate is entitled at a minimum to: (1) advance written notice
of the charges; (2) an opportunity to call witnesses and present
9

documentary evidence in his defense; and (3) a written statement
by the factfinder of the evidence relied upon and the reasons
for the disciplinary action.

Wolff v. McDonnell, 418 U.S. 539,

563-69 (1974); Superintendent, Mass. Correctional Inst. v. Hill,
472 U.S. 445, 454 (1985).

“Ascertaining whether this standard

is satisfied does not require examination of the entire record,
independent

assessment

of

weighing of the evidence.

the

credibility

of

witnesses

or

The “relevant inquiry is what process

(the inmate) received, not whether the [hearing officer] decided
[his] case correctly.”

Swarthout v. Cooke, ___U.S.___, 131 S.

Ct. 859, 863 (2011)(per curiam).
2.

Retaliation
An “inmate claiming retaliation must allege specific facts

showing retaliation because of the exercise of the prisoner’s
constitutional rights.”

Fogle v. Pierson, 435 F.3d 1252, 1264

(10th Cir. 2006)(quoting Peterson v. Shanks, 149 F.3d 1140, 1144
(10th Cir. 1998)); Nielander v. Bd. of Cnty. Comm’rs of Cnty. of
Republic,

Kan.,

582

F.3d

1155,

1165

(10th

Cir.

2009)(“To

establish a First Amendment retaliation claim, a plaintiff must
show

that

(1)

he

was

engaged

in

constitutionally

protected

activity, (2) the government’s actions caused him injury that
would chill a person of ordinary firmness from continuing to
engage in that activity, and (3) the government’s actions were
substantially motivated as a response to his constitutionally
10

protected conduct.”).

Thus, “it is imperative that plaintiff’s

pleading be factual and not conclusory,” and “[m]ere allegations
of constitutional retaliation will not suffice.”
Dubois, 922 F.2d 560, 562 n. 1 (10th Cir. 1990).

Frazier v.
In addition,

in order to prevail a prisoner must show that the challenged
actions would not have occurred “but for” a retaliatory motive.
Baughman

v.

Saffle,

24

Fed.Appx.

845,

848

(10th

Cir.

2001)(citing Smith v. Maschner, 899 F.2d 940, 949–50 (10th Cir.
1990); Peterson, 149 F.3d at 1144)).
3.

Exhaustion of Administrative Remedies
“42 U.S.C. § 1997e(a) .

.

. requires that ‘available’

administrative remedies be exhausted prior to filing an action
with

respect

to

prison

conditions

under

§

1983.”

Brown

v.

Chandler, 111 Fed.Appx. 972, 977 (10th Cir. 2004)(citing Jernigan
v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002)).
4.

State Law Violations
The allegation that a state law or regulation was violated

is a matter of state law only and does not present a federal
constitutional violation so as to state a claim for relief under
§ 1983.

DISCUSSION
Applying the foregoing standards, the court finds that the
complaint is subject to dismissal for the following reasons.
11

1.

Complaint not upon Court-Approved Forms
In its prior Order, plaintiff was directed to submit his

complaint upon court-approved forms.
comply with this direction.

He failed or refused to

Mr. Beauclair is no stranger to

this court and is well aware of this local court rule.11

This

action may be dismissed on this basis alone.
2.

Claim of Denial of Due Process
Plaintiff’s allegations that he was sanctioned with a fine,

placed in administrative segregation,12 and his privileges were
restricted for a number of days, taken as true, simply fail to
evince a federal constitutional deprivation.

As noted, these

particular punishments generally “fail to implicate a protected
liberty

interest”

and,

requirements set forth

as
in

a

consequence,

the

Wolff v. McDonnell

are

due

process

simply

not

required.
On

the

other

hand,

forfeiture

of

good

time

as

a

disciplinary sanction generally implicates a protected liberty

11

Mr. Beauclair previously filed five civil cases that were dismissed and
currently has seven other civil cases pending before this court. Often when
he has been ordered to submit his complaints upon court-approved forms as
required by local court rule, he attaches pages within his complaint rather
than properly filling in the forms.
Plaintiff is directed that he must
present all his claims and allegations in the proper spaces upon his form
complaint, that he may only attach additional pages as necessary, and that
each such extra page must plainly indicate the section of the complaint that
is continued thereon.
12

“[T]o the extent (plaintiff) is alleging his liberty interests were
violated by his placement in administrative segregation, his claim is
frivolous under Sandin.” Griffin v. Samu, 65 Fed.Appx. 659, 660 (10th Cir.
2003).
12

interest and thus requires the due process protections afforded
by

Wolff.

However,

the

Tenth

Circuit

has

held

that

the

revocation of good time credits does not violate the Due Process
Clause where “those credits were returned” and “the temporary
taking of those credits did not have any impact on Plaintiff’s
sentence.”

Hudson v. Ward, 124 Fed.Appx. 599, 601 (10th Cir.

2004)(citing see Morgan v. McCotter, 365 F.3d 882, 889 (10th Cir.
2004),

cert.

denied,

546

U.S.

946

(2005)(no

due

process

violation resulted where good time credits were restored)); see
also Young v. Hoffman, 970 F.2d 1154 (2nd Cir. 1992)(no need to
decide

due

process

violation

because

prisoner

ultimately

afforded due process by administrative reversal and expungement
of disciplinary proceeding), cert. denied, 510 U.S. 837 (1993);
In re Hancock, 192 F.3d 1083, 1086 (7th Cir. 1999)(rehearing
cured any deprivation of due process suffered in first prison
disciplinary hearing).
Mr. Beauclair challenged the validity of the disciplinary
sanctions imposed upon him by way of administrative appeal and
was successful.

His appeal was decided in less than three weeks

after the sanction was imposed.

He makes no claim that his 90-

days of good time remain forfeited, and the court assumes that
this

sanction

was

overturned

13

by

the

Warden’s

decision.13

Any claim that he is entitled to restoration of good time credit must
be raised in a federal habeas corpus petition and is not properly litigated
in this civil complaint.
In addition, such a claim requires the petitioner
13

Plaintiff alleges no facts suggesting any lasting impact upon
his sentence.

Thus, under Hudson plaintiff fails to state a

claim of denial of due process.

Furthermore, if plaintiff’s

good time credits have been restored, his due process claims
arising from their revocation are moot.

Brown, 111 Fed.Appx. at

977.
Given

that

plaintiff

successfully

overturned

his

disciplinary conviction prior to bringing this action, he seeks
damages

in

federal

court

based

only

upon

acts

taken

by

defendants during the initial charge and disciplinary hearing
that were negated and cured on administrative appeal.

Even if

plaintiff could plausibly argue that a “live controversy” exists
under these circumstances, his own allegations and exhibits show
that he was afforded
proceedings.
process

in

disciplinary

adequate due process in the challenged

Plaintiff alleges that defendant High violated due
that

High

hearing,

failed
was

not

to
“an

provide

a

impartial

full

and

decision

fair

maker,”

found plaintiff guilty “with no evidence at all of forgery,” and
provided no “written disposition” stating the evidence relied
upon.

All these

allegations

are

refuted by

plaintiff’s

own

allegations and Exhibit of “Disposition of Disciplinary Case.”
Petition (Doc. 1-1) at 3-4.

In the latter document, defendant

to show that he exhausted state court remedies prior to seeking relief in
federal court.

14

High

set

forth

all

the

evidence

presented

at

the

hearing

including Beauclair’s statements and Kemp’s testimony.

Nurse

Kemp testified that her name was signed upon Beauclair’s handcopied form 9 grievance but was not written by her.

After

continuing the hearing to consult with other prison officials,
High found Beauclair guilty reasoning that “no inmate should be
able to sign another person’s signature to any paperwork, and
the courts never stated the signature could be copied.”

Id. at

4.
Plaintiff’s
disciplinary

claim

report

that

does

defendant

not

Kemp

entitle

him

filed
to

a

“false”

relief.

A

prisoner’s allegations of false disciplinary reports do not give
rise

to

a

proceedings

due

process

otherwise

are

claim,

provided

adequate.

the

See,

disciplinary

e.g.,

Smith

v.

Messinger, 293 F.3d 641, 654 (3rd Cir. 2002)(prisoner that had a
hearing and could challenge prison official’s alleged perjury in
a

disciplinary

proceeding

received

adequate

due

process);

Freeman v. Rideout, 808 F.2d 949, 951–2 (2nd Cir. 1986)(“The
prison inmate has no constitutionally guaranteed immunity from
being falsely or wrongly accused of conduct which may result in
the

deprivation

of

a

protected

liberty

interest;”

and

false

disciplinary charge does not give rise to per se constitutional
violation, provided the inmate is given an adequate hearing and
opportunity to rebut the false charges pursuant to Wolff.).
15

In

this

case,

it

is

apparent

from

plaintiff’s

vindication

on

administrative appeal that adequate due process was provided.
In sum, plaintiff’s allegations that he was charged with an
offense,

initially

overturned

on

found

guilty,

administrative

constitutional violation.

and

the

appeal

guilty

finding

evince

no

was

federal

His civil rights complaint based upon

this utterly ordinary and harmless incident that has already
been remedied is frivolous.
3.

Retaliation Claim
“[I]f in fact DOC officials retaliated against [plaintiff]

based

on

his

filing

administrative

grievances,

they

may

liable for a violation of his constitutional rights.”
435 F.3d at 1264.

be

Fogle,

However, Mr. Beauclair’s claim of retaliation

is subject to dismissal for two main reasons.

First, before

such a claim may be litigated in federal court, 42 U.S.C. §
1997e(a)

requires

exhausted.

that

Griffin,

65

administrative
Fed.Appx.

at

remedies
661.

It

were

fully

appears

from

plaintiff’s own exhibits that he has not exhausted his claim
that Kemp’s act of writing a DR was retaliatory.

Id.

The

grievances provided by Mr. Beauclair do not include a claim of
retaliation

against

Kemp

or

the

other

defendants.

Instead,

plaintiff asserted the lack of substantial evidence to establish
his guilt.

The Tenth Circuit addressed a similar situation and

determined

that

the

prisoner’s
16

appeal

of

his

misconduct

conviction did not satisfy the exhaustion requirement as to the
prisoner’s claim that the misconduct was brought against him as
a form of retaliation.
(10th

Cir.

2006).

Carr v. Brill, 187 Fed.Appx. 902, 905
Here,

Mr.

Beauclair

provides

exhibits

regarding his efforts to exhaust his due process claims, but
makes

no

claims.

attempt

to

show

that

he

exhausted

his

retaliation

Plaintiff is barred by § 1997e(a) from pursuing his

retaliation
properly

claim

in

exhausted

federal
the

court

until

available

he

prison

has

fully

and

administrative

remedies.14
Even

if

plaintiff

can

prove

that

he

exhausted

his

retaliation claim, it is subject to dismissal because the facts
alleged

in

claiming

support

are

retaliation

retaliation

because

constitutional

not
must

of

rights.”

specific.
allege

the

As

specific

exercise

Courts

noted,

have

of

an

facts
the

“inmate
showing

prisoner’s

recognized

that

in

retaliation claims the presentation of circumstantial evidence
such

as

temporal

proximity,

a

chronology

of

events,

or

suspicious timing may be sufficient to support allegations of
retaliation.

See Maschner, 899 F.2d at 949 (holding that the

inmate sufficiently supported retaliation claim with “only means
available

to

him-circumstantial

14

evidence

of

the

suspicious

If, as it appears, plaintiff did not exhaust his retaliation claim
prior to filing this action, it is likely that he has procedurally defaulted
this claim.

17

timing

of

his

discipline,

witnesses and assistants”).

coincidental

transfers

of

his

Plaintiff alleges that defendant

Kemp wrote the DR charging him with forgery in retaliation for a
prior grievance he had written against her.

However, as noted,

Mr.

grievance

Beauclair

does

not

include

the

prior

that

he

allegedly wrote against defendant Kemp among his many exhibits.
Nor

does

he

adequately

summarize

the

facts

upon

which

his

grievance against Kemp was based or provide the administrative
response.

“A

plaintiff’s

subjective

beliefs

about

why

the

government took action, without facts to back up those beliefs,
are not sufficient.”

Nielander, 582 F.3d at 1165; see also

Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999)(“[T]he
inmate must allege more than his personal belief that he is the
victim

of

defendant

retaliation.”).
Kemp

acted

in

Plaintiff’s
retaliation

bald
because

allegation
of

his

that
prior

grievance is not supported by sufficient facts.
In addition, plaintiff alleges no facts whatsoever showing
that the alleged retaliatory act by Kemp, that is the writing of
the DR against him, would not have occurred “but for” defendant
Kemp’s retaliatory motive.
County

Commissioners,

211

See Murray v. Albany County Board of
F.3d

1278

(10th

Cir.

Apr.

20,

2000)(Table)(inmate’s claim of retaliation under § 1983 should
have been dismissed without prejudice for failure to state a
valid claim in the absence of allegations involving retaliatory
18

motive, causation, and personal participation).

Plaintiff does

not describe circumstantial or other evidence in his possession
from which the court could plausibly conclude that Kemp wrote
the DR against him due to his engagement in protected activities
or

that

she

activities.

would

not

have

written

the

DR

“but

for”

those

The record shows that Kemp wrote the DR against Mr.

Beauclair after she became aware that he had written her name as
a

signature

upon

his

hand-copied

form

9

grievance

recognized that this signature was not her writing.15

and

she

Plaintiff

never denied that he wrote Kemp’s name as a signature on his
document.16
In any event, the record discloses that Kemp’s DR has not
chilled plaintiff’s pursuit of legal claims.
court’s

records

reveals

to

the

contrary

A review of this

that

subsequent

to

15

Some courts have held that where, as here, a prisoner asserts that the
writing of a DR was motived by retaliation, no claim for relief is stated so
long as the DR was supported by some evidence and the prisoner received
adequate due process in the disciplinary action.
See e.g., O’Bryant v.
Finch, 637 F.3d 1207, 1215 (11th Cir. 2011)(“[A] prisoner cannot maintain a
retaliation claim when he is convicted of the actual behavioral violation
underlying the alleged retaliatory false disciplinary report and there is
evidence to sustain the conviction.”)(citations omitted); Hartsfield v.
Nichols, 511 F.3d 826, 829 (8th Cir. 2008)(“claims of retaliation fail if the
alleged retaliatory conduct violations were issued for the actual violation
of a prison rule.”); Freeman v. Rideout, 808 F.2d 949, 952 (2nd Cir.
1986)(“[a]lthough prisoners are entitled to be free from arbitrary action and
conduct of prison officials, the protections against arbitrary action are the
procedural due process requirements as set forth in Wolff v. McDonnell”)
(citations omitted).
16

Instead, he argued that his act was not intentional forgery and should
not be sanctioned due to circumstances presented by him in response to the
DR, including that his photocopy privileges had been suspended.
These
arguments failed to convince the hearing officer but were successful on
appeal.
19

Kemp’s DR, Mr. Beauclair filed six new civil lawsuits in this
court.

Nor

grievance

does

filing

plaintiff
was

allege

“chilled”

by

facts

showing

that

his

DR.

His

own

Kemp’s

allegations and exhibits describe other circumstances17 that are
the

likely

source

of

any

“chilling

effect”

upon

apparent abuse of the prison grievance process.
not

allege

that

these

limitations

upon

his

plaintiff’s

Plaintiff does
grievances

were

imposed by defendants, were motivated by retaliation, or amount
to arbitrary or unreasonable action on the part of defendants.
Plaintiff’s allegations that defendants Zenk and High were
personally

involved

in

the

constitutional

violation

by

Kemp,

knew of her violations but failed to act to prevent them, and
unreasonably

approved

the

DR

finding

that

plaintiff’s

handwritten copy of the IR constituted forgery when plaintiff
had no intent to defraud are likewise without merit for the
foregoing reasons.18
4.

Other Claims
Plaintiff’s claims that Kemp acted in an “arbitrary and

capricious” manner and that the acts of defendants Zenk and High
were “arbitrary and capricious” are conclusory statements that

17

Due to his abuse of the prison grievance process, plaintiff has been
charged for grievances, and many of his grievances have been denied as
repetitive.
18

Plaintiff may not rest on the doctrine of respondeat superior to impose
liability under § 1983. Rizzo v. Goode, 423 U.S. 362 (1976); see e.g., Kite
v. Kelley, 546 F.2d 334, 337 (10th Cir. 1976).
20

are not supported by the facts alleged in the complaint.

The

same is true of plaintiff’s claims that the acts of defendants
Zenk and High violated K.A.R. 44-13-403 and 44-13-409 and that
defendant Zenk violated his duty under K.A.R. 44-13-201(c)(3)
and (4).

Moreover, the latter claims are allegations of state

law violations, which are not grounds for relief under § 1983.

REQUESTS FOR RELIEF
Plaintiff’s specific request for injunctive relief is for
an order against future prison transfers.

This request is not

supported by sufficient factual allegations or legal authority.
The court does not have general authority to override decisions
of the KDOC as to the placement and transfer of state inmates.
Plaintiff does not even allege that any named defendant caused
his past transfers and does not allege facts showing that his
federal

constitutional

transfer.

Thus,

rights

plaintiff

would

is

not

be

violated

entitled

to

by
the

a

future

specific

injunctive relief that he requests.
Nor has plaintiff alleged facts showing his entitlement to
damages.

As noted, his allegations and exhibits show that his

disciplinary conviction was quickly overturned on administrative
appeal and thus indicate that he suffered no actual injury that
might entitle him to damages under § 1983.

He does not suggest

that he suffered any physical injury as a result of defendants’
21

acts.

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 or the commission of a sexual act. . . .

42 U.S.C. § 1997e(e).

It follows that plaintiff’s claim for

damages based on an alleged injury to his liberty interest or of
retaliation is

also

barred by § 1997e(e).

Furthermore, Mr.

Beauclair presents no plausible basis for a claim of punitive
damages in the amount of $50,000 or any other amount because he
alleges no facts whatsoever showing that any defendant acted
with a sufficiently culpable state of mind.

OTHER FILINGS
Plaintiff submitted two documents among his “exhibits” that
are entitled “Declaration.”

The first (Exh. B, Doc. 1-1 at 20)

is not dated, signed, or sworn to under penalty of perjury.
This “declaration” is not a proper amendment or supplement to
plaintiff’s

complaint,

and

although

its

content

has

been

considered by the court, it is an improper filing.
Plaintiff’s second “Declaration” (Exh. G, Doc. 1-1 at 31)
is

not

dated.

Therein,

plaintiff

complains

about

prison

transfers since his incarceration in 2002 and baldly claims they
were “all due to retaliation.”

He further alleges that he has

filed “many grievances at each prison facility” mainly dealing
22

with the denial of adequate medical treatment and complains that
he been denied adequate care and that his grievances have been
mishandled.

This is not a proper amendment or supplement to the

complaint.19

At the end of his complaint, plaintiff claims that

this declaration (Exh. G) is “of retaliation in the past for the
injunction

relief.”

The

grounds

for

plaintiff’s

claim

for

injunctive relief must have been stated in his form complaint.
The court finds that this declaration is improper and, in any
event, finds that the allegations therein are nothing more than
conclusory statements.

If plaintiff submits additional improper

“declarations” in this or other cases, they may be disregarded
by the court.
Plaintiff’s “Request” for “Service of Summons” (Doc. 6) has
been considered and is denied.

Summons shall not be ordered by

the court until a complaint has survived screening.

DIRECTIONS TO PLAINTIFF
Mr. Beauclair is ordered to show cause why the complaint

19

In order to add any claim or significant allegations that were not
presented in the original complaint, a plaintiff must file a complete
“Amended Complaint.”
See Fed.R.Civ.P. Rule 15.
An Amended Complaint
completely supersedes the original complaint, and therefore must contain all
claims the plaintiff intends to pursue in the action, including those
presented in the original complaint. Plaintiff has not properly added claims
or allegations to his original complaint by simply filing a “declaration”
setting forth possible, additional claims.
Furthermore, under Rule 15, a
plaintiff must seek leave of court to supplement his complaint. Finally, the
court notes that claims of denial of medical treatment do not appear to be
properly joined with the due process and retaliation claims in this
complaint, and thus must be raised in a separate action.
23

filed

herein

failure

to

should
state

not

a

be

claim

dismissed
for

1915(e)(2)(B)(ii)(“Notwithstanding
portion

thereof,

that

may

have

as

frivolous

relief.
any

See

paid,

28

or

for

U.S.C.

fee,

filing

been

and

the

court

§
any

shall

dismiss the case at any time if the court determines that . . .
the action . . . fails to state a claim on which relief may be
granted”).

Plaintiff

is

warned

that

his

failure

to

file

a

timely response may result in the complaint being dismissed for
the reasons stated herein without further notice.
Mr. Beauclair is notified that evidence of his exhaustion
of administrative remedies, like evidence of his claims, is not
to be submitted with the complaint as exhibits.

Instead, proof

of either exhaustion or claims is generally not required until
later stages in judicial proceedings.

Nevertheless, when such

exhibits are provided with the complaint, their content may be
considered by the court during screening.
Mr. Beauclair has been designated a three-strikes litigant
as a result of his abusive litigation practices.
finds

that

declarations,

plaintiff’s
and

his

pleadings,

exhibited

the

averments

administrative

The court
in

records

his
along

with filings in his other pending and closed cases reflect that
he consistently exaggerates complaints of being mistreated or
retaliated against.

His filings further reflect his consistent

inability or refusal to comply with prison and court rules and
24

directives and to accept that he is subject to the authority of
correctional officials.
prison grievances and

Mr. Beauclair has continuously filed
civil rights actions in this court

in

which he aims to manipulate or personally attack correctional
officials.

The instant action appears to be a personal attack

upon and attempt to manipulate defendants that is subject to
dismissal as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
Plaintiff is advised that this Memorandum and Order is not
a final judgment in this case and thus a motion for relief from
judgment would not be appropriate.
IT IS THEREFORE BY THE COURT ORDERED

that

plaintiff is

granted thirty (30) days in which to show cause why this action
should not be dismissed for the reasons set forth herein.
IT IS FURTHER ORDERED that plaintiff’s Request for Service
of Summons (Doc. 6) is denied.
IT IS SO ORDERED.
Dated this 7th day of January, 2015, at Topeka, Kansas.

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

25