Beauclair v. Roberts et al

Filing 8

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 2 to proceed without prepayment of fees is reconsidered and granted. Plaintiff is hereby assessed the filing fee of $350.00 to be paid through payments automatically deducted from his inm ate trust fund account. Plaintiff is granted thirty (30) days in which to show cause why this action should not be dismissed. Signed by Senior District Judge Sam A. Crow on 01/14/15. 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.

14-3022-SAC

RAY ROBERTS, et al.,
Defendants.
MEMORANDUM AND ORDER
This pro se civil rights complaint was filed pursuant to 42
U.S.C. § 1983 by a state prison inmate.1

Mr. Beauclair claims

that defendants are denying him access to the courts by refusing
to provide free photocopies of legal documents.

The court finds

that this action is subject to dismissal for failure to state a
federal constitutional claim.

PLAINTIFF’S LITIGATION HISTORY
The
docket in

court

takes

judicial

State v. Beauclair,

notice

of

the

Shawnee Co.

1

appellate

court

Dist.Ct. Case

No.

Plaintiff’s original complaint was not upon forms (Doc. 1) and was
completely superseded by his subsequent complaint (Doc. 7).
The court has
considered his subsequent complaint only, which mainly consists of several
copies of pages from his original complaint.
1

99CR4640, which is also Kan.App. Case No. 919992 that is referred
to by plaintiff herein, and other cases filed by Mr. Beauclair
for which written opinions are available.
In 2001, Danny Beauclair pled no contest to one count of
rape and one count of aggravated criminal sodomy, each of a
child

under

14

years

of

age,

dismissing a second count of rape.
40, 41-42 (Kan. 2006).

in

exchange

for

the

state

State v. Beauclair, 130 P.3d

He was sentenced in 2002, to “concurrent

minimum terms of 184 months for the rape charge and 136 months
for the aggravated sodomy charge.”

Id. at 43.

In 2003, Mr. Beauclair filed a Motion to Withdraw Plea.
The

trial

appealed.

court

denied

the

motion,

and

Beauclair

timely

The Kansas Court of Appeals (KCA) reversed in State

v. Beauclair, 116 P.3d 55 (July 29, 2005).

However, the State

appealed, and the Kansas Supreme Court (KSC) reversed the KCA
and affirmed the trial court’s denial of Beauclair’s motion to
withdraw.
The

KSC

State v. Beauclair, 130 P.3d 40 (Kan. Mar. 17, 2006).
then

consideration
opinion.
affirmed

2

remanded
of

“claims

in

Case

not

No.

91999

considered”

in

to
the

the

KCA

KCA’s

for
prior

The KCA considered Beauclair’s claims and this time
the

lower

court’s

denial

of

relief.

State

v.

This docket is available on the Clerk of the Kansas Appellate Courts
website.
2

Beauclair, 146 P.3d 709, 2006 WL 3409225 (Kan.App. Nov. 22,
2006).

The KSC denied review on March 29, 2007.

Id.

Mr. Beauclair challenged his sentence by way of state postconviction

motions.

In

2007,

he

filed

a

motion

to

correct

illegal sentence and another motion to withdraw his plea.
were

summarily

denied

by

the

trial

court.

See

Beauclair, 223 P.3d 837 (Kan.App. Feb. 12, 2010).

Both

State

v.

He timely

appealed, the KCA affirmed, and the KSC denied review on June 2,
2010.

Id.

In 2007 and 2010, Mr. Beauclair also filed habeas petitions
in federal court challenging his state convictions that were
unsuccessful.

See e.g., Beauclair v. Goddard, 2012 WL 763103

(D.Kan. Mar. 6, 2012), COA denied, 530 Fed.Appx. 781 (10th Cir.
Mar. 13, 2013).
With

respect

to

civil

actions

in

federal

court,

Mr.

Beauclair has been designated a three-strikes litigant pursuant
to

28

U.S.C.

November 2013.

§

1915(g).

His

third

strike

was

assessed

in

Beauclair v. Dowd, Case No. 13-3169-RDR (D.Kan.

Nov. 22, 2013), aff’d, App.Case No. 14-3036 (October 23, 2014).
After being notified that he had accumulated his third strike,
Mr. Beauclair proceeded to file six new civil actions in this
court.

When the Tenth Circuit affirmed the judgment of the

district court in Beauclair v. DowdI, it imposed an additional
3

strike upon Mr. Beauclair “for his wholly meritless claim in
district

court

and

his

frivolous

appeal.”

Mr.

Beauclair

currently has seven civil cases pending in this court alone.

In

addition, five civil cases previously filed by him in this court
have been dismissed.

ALLEGATIONS AND CLAIMS
In this lawsuit, plaintiff names as defendants Ray Roberts,
Secretary
Dorado

of

Corrections;

Correctional

and

James

Heimgartner,

Facility–Oswego

(OSC).

Warden,
The

El

factual

background alleged by plaintiff for this complaint is difficult
to

follow

and

allegations.

contains
Plaintiff

far

more

alleges

conclusory

the

than

following

factual

facts.

On

November 5, 2013, more than three years after his state postconviction proceedings were concluded, he filed a “Motion to
Recall Mandate” in App.Case No. 91999.

This motion was denied

on December 12, 2013.

He alleges that he had 30 days from the

filing

Order

of

the

denial

in

which

to

appeal

“Petition for Review” in the KSC per Rule 8.03.

by

filing

a

However, he did

not receive the denial order until 19 days after it was filed on
“12-31-2013, in the U.S. Mail.”

The only subsequent entry on

the docket sheet is dated two weeks after the motion was denied:
“CERT/REG MAIL RETURNED BY POST OFFICE/Reg Mail Returned-Not at
4

Address” and “Resent Reg Mail 12/26-Beauclair.”

Plaintiff was

“forced to send” his one set of “documents” home to his 71-year
old mother to have photocopies made to comply with the copy
requirements of Kansas Supreme Court Rule 8.03.

On January 24,

2014, his mother mailed the required sets of photocopies to the
appellate

court

by

U.S.

Mail.

Mr.

Beauclair

mailed

his

“Petition for Review” to the KSC on an undisclosed date.

On

January 30, 2014, plaintiff received an envelope from the Clerk
“returning his Petition for Review stating they could not file
the Petition for Review Briefs.”

The “Clerk of the Appeals

Courts” refused to file his documents because it was “beyond the
time limits of Rule 8.03.”
Plaintiff
Petition

for

claims
Review

that

he

because

was
of

“not

allowed

defendant(s)’

to

file

actions

his

and/or

inactions” and that defendants violated his rights and caused
him

actual

documents

injury
dealing

“by
with

“using IMPP 12-127.”

refusing

to

photocopies

of

criminal

plaintiff’s

provide

conviction”

by

He further claims that he was “unable to

file his Petition for Review . . . within the time limits”
because he was forced to send it home to have photocopies made,
that

this

process,”
purpose

of

delay
and

denied

that

him

“access

“defendant’s

destroying”

to

delay”

plaintiff’s
5

the
was

access.

court
“for
He

with

the

due

express

asserts

that

defendants violated his “lst Amendment right to access to the
courts and/or to the 14th Amendment right with due process of
law.”

He also claims that “IMPP 12-127.II.C(1),(2)(a),(b)(3) is

unconstitutional as applied in this case.”3
Plaintiff seeks a declaration that defendants violated his
federal

constitutional

rights,

a

preliminary

and

permanent

injunction ordering defendants “to provide plaintiff indigent
legal

photocopies

as

needed”

to

comply

with

court

copy

requirements, “compensatory damages in the amount of the cost of
the

action

maximum

against

amount,”

each
and

defendant,”

“punitive

“nominal

damages

in

damages
the

in

amount

the
of

$100,00.00 (sic) against each defendant.”

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
3

Plaintiff alleges no facts whatsoever in support of his claims of a
denial of due process and that IMPP 12-127.II.C(1),(2)(a),(b)(3) is
unconstitutional.
These claims will be denied without further discussion
unless plaintiff alleges sufficient supporting facts in response to this
order.
6

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.”
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
7

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

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 LEGAL STANDARDS
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)).
Personal Participation
An

essential element of a civil rights claim

against

a

person is that individual’s direct personal participation in the
acts or inactions upon which the complaint is based.

Kentucky

v. Graham, 473 U.S. 159, 166 (1985); Trujillo v. Williams, 465
8

F.3d 1210, 1227 (10th Cir. 2006).
may

not

be

superior.

predicated

solely

Thus, a supervisor’s liability
upon

a

theory

of

respondeat

Rizzo v. Goode, 423 U.S. 362, 371 (1976); Duffield v.

Jackson, 545 F.3d 1234, 1239 (10th Cir. 2008); Meade v. Grubbs,
841 F.2d 1512, 1528 (10th Cir. 1988)(To be held liable under §
1983,

a

supervisor

must

have

personally

participated

complained-of constitutional deprivation.).
role

must

be

more

than

one

of

in

the

“[T]he defendant’s

abstract

authority

over

individuals who actually committed a constitutional violation.”
Fogarty

v.

Conclusory
Ashcroft,

Gallegos,

523

allegations
556

U.S.

at

F.3d

1147,

1162

of

involvement

1948

(“Because

(10th

are

Cir.

not

vicarious

2008).

sufficient.
liability

is

inapplicable to . . . § 1983 suits, a plaintiff must plead that
each Government-official defendant, through the official’s own
individual

actions,

has

violated

the

Constitution.”).

The

allegation that an official denied or ignored a grievance is not
sufficient

to

show

personal

participation

in

the

prior

constitutional violation.

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

1069

“denial

(10th

Cir.

2009)(A

of

a

grievance,

by

itself

without any connection to the violation of constitutional rights
alleged by plaintiff, does not establish personal participation
under § 1983.”); see Stewart v. Beach, 701 F.3d 1322, 1328 (10th
Cir. 2012).
9

Access to the Courts
It is well-established that an inmate has a constitutional
right of access to the courts.

However, it is equally well-

settled that in order “to present a viable claim for denial of
access, the inmate must allege and prove prejudice arising from
Defendants’ actions.”

Peterson v. Shanks, 149 F.3d 1140, 1145

(10th Cir. 1998)(citations omitted); Lewis v. Casey, 518 U.S.
343,

349

actual

(1996)(“The
injury

standing.”).
requirement

derives
An

by

requirement

that

ultimately

inmate

inmate

.

.

.

show

from

the

doctrine

satisfy

may

demonstrating

an

the

actual-injury

that

the

alleged

of

acts

or

shortcomings of defendants “hindered his efforts to pursue” a
non-frivolous legal claim.

Id. at 351-53.

Furthermore, the

Supreme Court plainly held in Lewis that “the injury requirement
is not satisfied by just any type of frustrated legal claim.”
Id.

at

354.

prisoners
directly

Rather,

are
or

the

prevented

collaterally”

their confinement.”

requisite
from
or

injury

attacking

challenging

occurs
“their

“the

only

when

sentences,

conditions

of

Id. at 355; see also Carper v. Deland, 54

F.3d 613, 617 (10th Cir. 1995)(“[A]n inmate’s right of access
does not require the state to supply legal assistance beyond the
preparation

of

initial

pleadings

in

a

civil

rights

action

regarding current confinement or a petition for a writ of habeas
10

corpus.”).
simply

one

“Impairment
of

the

of

any

incidental

other
(and

litigating

perfectly

consequences of conviction and incarceration.”

capacity

is

constitutional)
Lewis, 518 U.S.

at 356.

DISCUSSION
Plaintiff brings this action pursuant to § 1983.
he

asserts

jurisdiction

U.S.C. § 1343(3).

under

several

provisions

However,

besides

28

His bald citations to 29 U.S.C. §§ 2283, 2284

and “Fed.R. of Civ.Pro. 60” are not explained.

Neither Rule 60

nor the cited sections in Chapter 29 confer jurisdiction in this
case, and the latter were repealed in 1998.

Plaintiff also

asserts that this court has “supplemental jurisdiction” of state
law

violations

and

“an

unconstitutional

statute

as

applied.”

However, unless the complaint evinces a federal constitutional
violation, this court does not have supplemental jurisdiction
over state law claims.

State law violations generally fail to

present a claim under § 1983.
Having considered all the materials filed by Mr. Beauclair,
the court finds that this action is subject to dismissal for
reasons that follow.
Exhaustion of Administrative Remedies

11

The face of the complaint indicates that Mr. Beauclair did
not fully and properly exhaust administrative remedies on his
denial of access claim prior to filing this lawsuit in federal
court.

The exhaustion requirement in § 1997e(a) “is mandatory,

and the district court [is] not authorized to dispense with it.”
Beaudry v. Corrections Corp. of Am., 331 F.3d 1164, 1167 n. 5
(10th Cir. 2003), cert. denied, 540 U.S. 1118 (2004); Little v.
Jones, 607 F.3d 1245, 1249 (10th Cir. 2010).4
alleges

that

he

previously

sought

relief

Plaintiff vaguely

from

administrative

officials “dealing with IMPP 12-127 being denied access to the
courts.”

This

exhausted

the

vague

allegation

specific

is

allegations

not

a

that

statement
he

was

that

he

injured

by

defendants in connection with his attempt to appeal the 2013
denial of his Motion to Recall Mandate, which are an essential
element of his denial of access claim.

Plaintiff alleges that

he submitted grievance #BB00016749 and a letter to Heimgartner.
However, he does not quote or adequately summarize the content
of either.

Nor does he indicate that he properly appealed the

denial of this grievance.

In addition, he does not reveal the

content

or

4

of

any

responses

dates

showing

his

efforts

were

The “inmate may only exhaust by properly following all the steps laid
out in the prison system’s grievance procedures.”
Little, 607 F.3d at 1249
(citing Woodford v. Ngo, 548 U.S. 81, 90 (2006). “An inmate who begins the
grievance process but does not complete it is barred from pursuing a § 1983
claim. . . . “ Id. (citing Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th
Cir. 2002)).
12

timely.

His letter to Heimgarner was dated months before his

Motion to Recall was denied.
Plaintiff
alleging

further

that

KDOC

available to him.

shows

that

he

administrative

failed

remedies

to

exhaust

were

no

longer

He claims that in 2012 at HCF he “started to

be threatened by prison officials

and Ray Roberts”

and that

Roberts fined him $20.00 for filing grievances at the HCF.
further

alleges

by

that

Heimgartner

sent

him

a

letter

at

He
OCF

“threatening to also have plaintiff fined” for continuing to
file grievances.

Plaintiff’s characterization of these warnings

as threats and his vague allegations of the mishandling of past
grievances are not sufficient to establish that administrative
remedies were unavailable for him to seek relief on the specific
allegations raised in this complaint.
Mr.

Beauclair

was

occasionally

Likewise, the fact that

fined

does

not

show

that

administrative remedies were unavailable on the instant claim.5
Plaintiff is not alleging that he submitted a grievance on the
specific allegations herein that was refused or “chilled” by a
5

Plaintiff alleges no facts indicating that prison officials acted in an
unreasonable or arbitrary and capricious manner by fining him for a few of
the many prior grievances he has submitted. His own allegations and exhibits
in this and his other cases show instead that he was reasonably warned he
could be fined for filing duplicative and numerous unwarranted grievances.
Mr. Beauclair is plainly wrong to think that when he disregards regulations
and directives by submitting as many and whatever grievances he chooses,
prison officials cannot reasonably sanction that abuse to stem the disruption
it causes.
No constitutional right is denied by prison staff summarily
denying duplicative or baseless grievances. Plaintiff’s allegations that his
grievances are not duplicative are nothing more than self-serving conclusory
statements.
13

fine.

Unless Mr. Beauclair shows that he fully and properly

exhausted

administrative

remedies

in

a

timely

manner

on

the

specific allegations raised herein prior to filing this action,
his

complaint

1997e(a).
1225

(10th

will

be

dismissed

as

barred

by

42

U.S.C.

§

See Aquilar-Avellaveda v. Terrell, 478 F.3d 1223,
Cir.

2007)(When

failure

to

exhaust

is

clear

from

materials filed by a plaintiff, the court may sua sponte require
plaintiff to show that he has exhausted.)
Personal Participation
Plaintiff

initially

describes

each

defendant

as

a

“supervisory employee under Kansas law” and as acting under a
duty to “safeguard inmates const. rights.”

However, as noted,

the liability of a defendant may not be predicated solely upon a
theory of respondeat superior.
Plaintiff’s
defendants
access.

other

personally
Plaintiff

complaint,

such

allegations
participated

makes

as

many

also
in

the

conclusory

“defendants”

fail

to

alleged

show

denial

statements

violated

that
of
his

rights

his

in

by

repeatedly refusing to provide photocopies “to keep plaintiff
from

filing

confinement”
deliberate

actions
and

in

that

court”

Roberts

indifference.

regarding
and/or

However,

he

“his

conditions

Heimgartner
fails

to

acted

allege

of

with
facts

showing that either defendant personally participated in most of
14

the impediments of which he generally complains.

He alleges a

little

more

was

notice

to

within

Grievance

specifically

plaintiff

that

being

No.

defendant

denied

BB00016749,

Roberts

indigent
and

how

legal

“put

on

photocopies

handwriting

causes

plaintiff pain in his hand, and how nurses told plaintiff to not
write

with

Heimgartner

his
was

hand.”
“put

He
on

similarly

notice

to

alleges

that

plaintiff

defendant

being

denied

indigent legal photocopies byway of a letter dated 5/3/2013,”
and that plaintiff informed Heimgartner of the pain in his hands
“when he writes long-hand” and how delays in sending home for
photocopies could deny him access.
been

threatened

“threatened

with

by

the

fines

defendants
if

he

He also claims that he “had
not

filed

to

file

grievances”,

grievances,”

$20.00 to date for filing grievances” by Roberts.

and

“fined

Mr. Beauclair

fills his complaint with more general claims and conclusions and
apparently presents these as support for his denial of access
claim.
acts

by

However, none of these statements is a description of
either

locations.6

6

defendant

accompanied

by

specific

dates

and

Consequently, they fail to adequately describe a

Plaintiff’s additional conclusory statements may be summarized as
follows.
He previously filed a motion in the KCA in Case No. 12-107508
seeking waiver of the copy requirements for filing legal documents that was
denied.
In 2000, he was diagnosed with “Carpal Tunnel Impingment” in both
wrists, and in 1997 he was diagnosed with “Fibromyalgia Pain Syndrome.”
In
August 2012, he complained at the HCF about pain in his right wrist “from
handwriting” and was told by an RN to “not do any writing in order to not
cause plaintiff pain.”
In November 2012, plaintiff “became indigent under
IMPP 12-127.II.C,” and as an indigent receives 15 sheets of lined paper and 4
15

federal constitutional violation on the part of either defendant
from whom damages are sought.
Plaintiff also fails to allege personal participation by
defendants

in

the

requisite injury.

single

incident

that

allegedly

caused

the

He does not describe any act on the part of

either defendant that was taken in connection with his attempt
to appeal the 2013 denial of his motion to recall.

He does not

adequately explain how general impediments of which he complains
establish

that

either

defendant

was

directly

responsible

for

assisting plaintiff in obtaining photocopies for that appeal, or
refused to act at the time, or otherwise directly caused the
delay in plaintiff’s submission of the necessary legal papers.
The state appellate court’s docket reflects to the contrary that
the first 19 days of “delay” resulted from the denial order
having been mailed to an address where plaintiff was not found.
Plaintiff does not even adequately allege the content and number
of papers he was required to submit in order to effectively
appeal and recite the content of the rule under which nothing
less sufficed.

Nor does he describe any effort on his part at

free, one-ounce envelopes per month. He has repeatedly been denied “indigent
legal copies” for his criminal conviction and/or for his conditions of
confinement in 2012, 2013 and 2014 by defendants because he has an
outstanding debt of $60.00 for legal copies; he has offered to pay off his
outstanding debt and for his legal photocopies from the “over $600.00” in his
“KDOC Forced Savings Account” but “defendants have refused to apply that
money to pay for the legal copies.”
These statements mainly evince
plaintiff’s disgruntlement with difficulties he has brought upon himself by
abusing prison grievance and judicial processes.
16

the prison to either prepare the necessary papers7 or enlist
assistance from the appropriate staff member.
provide
state

or

summarize

appellate

court

proceed as a pauper.

any

He also fails to

communications
show

or

between
had

that

he

him

sought

and
leave

the
to

In addition, plaintiff does not show that

his decision to send papers out to his 71-year old mother with
either 11 or no days remaining in the limitation period,8 was
“forced” by either defendant.
Claim of Denial of Access
Mr. Beauclair’s claim of denial of access is also subject
to dismissal because he fails to allege facts establishing the
essential
claim.

element

of

actual-injury

to

a

non-frivolous

legal

He apparently offers his litany of general complaints to

suggest a sort of “systemic” impediment to his access to the
courts.

Justice Souter

suggested in

Lewis

that the actual-

7

Plaintiff alleges that handwriting causes pain in his hand, but does
not show that he would have been required to write a burdensome amount or
that his only alternative was handwriting. He has filed numerous typewritten
pleadings and motions in this court, and does not explain why he could not
have typewritten a notice of appeal, a brief, or copies of either in this
instance. In any event, plaintiff’s abusive filings in prison and this court
demonstrate that he has not rationally limited the number of papers he has
submitted.
His having to write papers by hand because he used up his
photocopying privileges, like minor restrictions he attempts to blame for his
difficulties in producing more legal papers, have obviously resulted from his
own lack of control rather than unconstitutional acts of either defendant.
8

In another of Beauclair’s pending actions, he sues two appellate court
clerks based on this same incident (Case No. 14-3023) and alleges that “my
arguments were not presented” for rehearing by the KCA “because of the
actions of the Defendants” in that case.
Therein, he indicates that he had
14 days in which to file a motion for rehearing.
17

injury requirement be waived in cases “involving substantial,
systemic deprivation of access to court,” but the Supreme Court
expressly

rejected

this

suggestion.

Id.,

at

n.4.

Thus,

plaintiff’s general complaints, no matter how abundant, fail to
state a denial of access claim without a showing of prejudice in
the form of actual injury.
To show prejudice and meet the actual-injury requirement,
plaintiff describes in some detail the single incident involving
his

attempt

Mandate.9

to

appeal

the

denial

of

his

Motion

to

Recall

However, the details he provides also indicate other

causes for this untimely mailing.

First, as noted, it appears

from the docket that the lack of an accurate address caused a
delay of 19 days.

Second, by his own admission, Mr. Beauclair

sent no appeal papers or motion to the Court of Appeals until
after the jurisdictional time limit had expired.

Finally, he

does not allege that he was directed by defendants to send the
appeal papers out to his mother for photocopying.
Furthermore, plaintiff’s general claim of denial of court
access is plainly refuted by his litigation history in the state
and federal courts.

His own allegations and exhibits in his

federal cases indicate that he has likewise abused the prison
grievance process.
9

A prison inmate has no constitutional right

Plaintiff filed 2 proper Petitions for Review in Case No. 91999 after
his claims were rejected by the KCA on direct and collateral appeal, which
were denied years earlier.
18

to file repetitive or unfounded lawsuits or grievances.

Prison

officials are not constitutionally required to provide an inmate
with all the writing materials, postage, or photocopying that he
desires or demands, at taxpayer expense.

Mr. Beauclair does not

allege facts showing that his needs for these privileges and
materials

are

prisoners.

greater

Nor

does

than
he

those

show

that

of
he

all
has

other
used

his

indigent
monthly

allotment of writing materials or photocopying privileges in a
responsible manner.

His litigation habits in this court have

not shown reasonable restraint.

For one example, after this

court has supplied and ordered his use of forms for his federal
complaints he has resubmitted his original complaint on extra
sheets

of

attached

papers.

In

sum,

Mr.

Beauclair

does

not

allege facts establishing either that he has used his limited
resources to submit only non-frivolous grievances and lawsuits
or

that

any

photocopying,

restriction
or

free

upon

his

grievance

filing,

writing

and

mailing

materials

free
was

arbitrary and capricious or other than well-founded.
Finally, the court finds that even if plaintiff had alleged
facts showing that defendants caused his appeal to be untimely,
his denial of access claim is subject to dismissal because he
utterly fails to show that his Motion to Recall Mandate amounted

19

to a non-frivolous legal claim.

The reasoning of the United

States Supreme Court in Lewis v. Casey is instructive:
Not everyone who can point to some “concrete” act and
is “adverse” can call in the courts to examine the
propriety of executive action, but only someone who
has been actually injured.
Depriving someone of an
arguable (though not yet established) claim inflicts
actual injury because it deprives him of something of
value—arguable claims are settled, bought, and sold.
Depriving someone of a frivolous claim, on the other
hand, deprives him of nothing at all, except perhaps
the punishment of Federal Rule of Civil Procedure 11
sanctions.
Id. at 353, n. 3.

In his complaint, Mr. Beauclair does not

reveal the grounds or legal theories presented in his Motion to
Recall Mandate.10

The procedural history of his state criminal

case discloses that he fully exhausted all available state court
remedies on his challenges to his state conviction and sentence,
and that he eventually submitted filings found to be successive.
Mr. Beauclair’s

motion to recall

two of the KCA’s

years-old

mandates on which the KSC had already denied review, is nothing
more than his misguided attempt to raise new or rehash rejected
challenges to his conviction through means other than a proper
state

10

post-conviction

motion.

Neither

plaintiff’s

Motion

to

It appears from plaintiff’s filing in another of his pending civil
cases that the claims in his Motion to Recall Mandate were substantially ones
already rejected in his state appeals and/or on federal habeas corpus.
See
Case No. 14-3023, plaintiff’s Declaration (Doc. 6) at 10-11.
Furthermore,
these challenges would surely have been time-barred.
He makes no showing
that a Motion to Recall Mandate was the proper procedure to attempt to raise
new claims, if any.
20

Recall Mandate nor the appeal he claims was denied is shown to
have amounted to a non-frivolous claim.
Claims for Relief
The sparse facts alleged by plaintiff do not support his
claims for relief.

He seeks an overbroad injunction requiring

defendants to supply “indigent legal photocopies as needed” to
comply with court copy requirements.

As noted, in this case

alone he has not shown what filings were actually required by
the

state

resources

appellate
to

file

court,

that

non-frivolous

he

has

pleadings

used
only,

his
or

limited
that

his

court access necessitates more photocopies or other “indigent”
materials and privileges than those provided to all indigent
inmates.

He certainly has not established that he is entitled

to a blanket order for defendants to supply photocopies in the
future “as needed” for court requirements.
Plaintiff seeks “compensatory damages in the amount of the
cost of the action against each defendant.”

To the extent that

this is a claim for “compensatory damages, it is barred by 42
U.S.C. § 1997e(e)11 for the reason that plaintiff has alleged no
physical injury.

11

Plaintiff’s request for “nominal damages in

42 U.S.C. § 1997e(e) in pertinent part provides:
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.
21

the

maximum

amount”

suggests

his

misunderstanding

of

damages, which are generally in the amount of $1.00.

nominal

See e.g.,

Corpus v. Bennett, 430 F.3d 912, 916 (8th Cir. 2005)(“One dollar
is recognized as an appropriate value for nominal damages.”).
In any event plaintiff’s allegations do not evince the violation
of a federal constitutional right and thus state no basis for
nominal

damages.

Plaintiff

seeks

“punitive

damages

amount of $100,00.00 (sic) against each defendant.”

in

the

However, he

presents no plausible basis for a claim of punitive damages in
any amount because he alleges no facts whatsoever establishing
that either defendant acted with a sufficiently culpable state
of mind.

FILING FEE
The fees for filing a civil rights complaint in federal
court

total

Application
(Doc. 2).

$400.00.
for

Leave

Plaintiff
to

Proceed

initially

without

submitted

Prepayment

of

an
Fees

Upon consideration of that motion, the court found

from federal court records that plaintiff had “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.”

As a result, the court held that Mr. Beauclair was
22

not allowed to bring this action without prepayment of the full
filing fee of $400.00 because he had not shown in his motion
that he “is under imminent danger of serious physical injury.”
Id.

Instead of paying the filing fee or objecting to any of the

findings of the court, plaintiff filed a Motion to Alter or
Amend

Judgment

in

unconstitutional.

which

he

argued

that

§

1915(g)

is

The court denied this motion, and plaintiff

failed to submit the filing fee as ordered.

Mr. Beauclair is

not relieved of the obligation to pay the filing fee for this
action.

The

court

assesses

the

filing

fee

of

$350.00

and

requires that Mr. Beauclair pay the fee in full through payments
automatically deducted from his institutional account pursuant
to 28 U.S.C. § 1915(b)(2).

ORDERS TO PLAINTIFF
Mr. Beauclair is ordered to show cause why his complaint
should not be dismissed for failure to state a claim for relief
for the reasons stated herein.

Plaintiff is warned that his

failure to file a timely response may result in this action
being

dismissed

without

further

notice.

Mr.

Beauclair

is

reminded that this is not a final judgment, and no motion for
relief from judgment would be appropriate.

23

IT
Motion

IS
to

THEREFORE
Proceed

reconsidered

and

BY

THE

without

granted.

COURT

ORDERED

Prepayment
Plaintiff

of
is

that

Fees
hereby

plaintiff’s

(Doc.

2)

assessed

is
the

filing fee of $350.00 to be paid through payments automatically
deducted from his inmate trust fund account as authorized by 28
U.S.C. § 1915(b)(2).

The Finance Office of the Facility where

plaintiff is currently incarcerated is directed by copy of this
Order to collect from plaintiff’s account and pay to the clerk
of the court twenty percent (20%) of the prior month’s income
each time the amount in plaintiff’s account exceeds ten dollars
($10.00) until plaintiff’s outstanding filing fee obligation has
been paid in full.

Plaintiff is directed to cooperate fully

with his custodian in authorizing disbursements to satisfy the
filing fee, including but not limited to providing any written
authorization required by the custodian or any future custodian
to disburse funds from his account.
IT IS FURTHER ORDERED that plaintiff is granted thirty (30)
days

in

which

to

show

cause

why

this

action

should

not

be

dismissed for the reasons stated herein.
The clerk is directed to send a copy of this Order to
plaintiff, to the finance officer at the institution in which
plaintiff

is

currently

confined,

office.
24

and

to

the

court’s

finance

IT IS SO ORDERED.
Dated this 14th day of January of 2015, at Topeka, Kansas.

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

25