Bruce v. Denney et al

Filing 2

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted thirty (30) days in which to satisfy the filing fee prerequisite by either paying the full fee or submitting a properly supported motion to proceed without prepayment of fees. Within the same thirt y-day period, plaintiff is required to show cause why this action should not be dismissed for failure to state a claim for mandamus relief and as frivolous. Signed by Senior District Judge Sam A. Crow on 02/25/14. (Mailed to pro se party Antoine Bruce by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ANTOINE BRUCE,
Plaintiff,
v.

CASE NO.

14-3026-SAC

DONALD DENNEY, et al.,
Defendants.
MEMORANDUM AND ORDER
This pro se civil action was filed by a federal prisoner housed
at the United States Penitentiary, Administrative Maximum Prison,
Florence, Colorado (“ADX”).

Having examined the materials filed,

the court finds that the filing fee prerequisites have not been
satisfied and the complaint is deficient in several ways.
is given time to cure these deficiencies.

Mr. Bruce

If he fails to comply

within the prescribed time this action may be dismissed without
further notice.

FILING FEE
The fees for filing a civil action in federal court 1 total
$400.00 and consist of the statutory fee of $350.00 under 28 U.S.C.

1

The Tenth Circuit has held “that petitions for writ of mandamus are included
within the meaning of the term ‘civil action’ as used in § 1915” where habeas matters
are not the underlying concern. Green v. Nottingham, 90 F.3d 415, 418 (10th Cir.

1

§ 1914(a) plus an administrative fee of $50.00; or for one that is
granted leave to proceed in forma pauperis the fee is $350.00.

Mr.

Bruce has neither paid the fee nor submitted a Motion to Proceed
without Prepayment of Fees.2

This action may not proceed until the

filing fee is satisfied in one of these two ways.
time to satisfy the filing fee.

Plaintiff is given

He is forewarned that if he fails

to satisfy the fee as ordered within the prescribed time, this action
may be dismissed without prejudice and without further notice.
Plaintiff is reminded that under 28 U.S.C. § 1915(b)(1), being
granted leave to proceed without prepayment of fees does not relieve
him of the obligation to pay the full amount of the filing fee.
Instead, it merely entitles him to pay the fee over time through
payments automatically deducted from his inmate trust fund account
as funds become available pursuant to 28 U.S.C. § 1915(b)(2).3

1996); cf. York v. Terrell, 344 Fed.Appx. 460, 462 (10th Cir. 2009)(unpublished);
see In re Grant, 635 F.3d 1227, 1230–32 (D.C.Cir. 2011)(prisoners must pay the
entire fee in mandamus actions under the Prisoner Litigation Reform Act).
2
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 shall
be directed to send Mr. Bruce forms for filing a proper motion under 28 U.S.C.
§ 1915(a).
3
Pursuant to § 1915(b)(2), the Finance Office of the facility where Mr. Bruce
is currently confined will be authorized to collect twenty percent (20%) of the
prior month’s income each time the amount in his institution account exceeds ten
dollars ($10.00) until the filing fee has been paid in full.

2

ALLEGATIONS AND CLAIMS
Plaintiff asserts that his rights under the Eighth Amendment’s
cruel and unusual punishment clause and the Fifth Amendment’s due
process clause are being violated along with his rights under the
Americans

with

Disabilities

plaintiff alleges as follows.

Act

(ADA).

As

factual

support,

He is mentally ill and has been

diagnosed with schizophrenia, depression with psychotic features,
and bi-polar disorder.

He has a long history of suicide attempts.

His mental health is deteriorating, and he has requested two
psychotherapy sessions each week instead of per month.

He has

trouble focusing, concentrating and understanding “in the realm of
education” and would like to obtain a GED.

He has been assisted on

a civil action by another prisoner at the ADX but is being denied
communication with him and is not assisted by staff.

Plaintiff

claims that (1) he is being denied adequate care for his mental
illness, (2) he is being discriminated against in that his special
educational needs are not being met, (3) he is being denied access
to his “jail house lawyer,” and (4) he has been denied a staff
representative of his choice in disciplinary proceedings.
Plaintiff seeks injunctive relief in the form of orders
requiring: that he be provided additional therapy sessions and
full-time one-on-one educational tutoring, that he be allowed to
communicate with his jail-house lawyer, that all his grievances on
3

staff misconduct be investigated and referred to the Inspector
General for action, that the law library computers be repaired, and
that

the

Warden’s

practice

of

choosing

plaintiff’s

staff

representative be terminated.

SCREENING
Because Mr. Bruce is a prisoner suing government 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.
28 U.S.C. § 1915(e)(2)(B).
complaint

and

applies

A court liberally construes a pro se

“less

pleadings drafted by lawyers.”
(2007).

28 U.S.C. § 1915A(a) and (b);

stringent

standards

than

formal

Erickson v. Pardus, 551 U.S. 89, 94

Nevertheless, “when the allegations in a complaint, however

true, could not raise a claim of entitlement to relief,” dismissal
is appropriate.
(2007).

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.”
(10th Cir. 1991).

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

The court “will not supply additional factual

allegations to round out a plaintiff’s complaint or construct a legal

4

theory on plaintiff’s behalf.”

Whitney v. New Mexico, 113 F.3d 1170,

1173-74 (10th Cir. 1997).

MANDAMUS STANDARDS
The mandamus statute, 28 U.S.C. § 1361, provides that “[t]he
district court shall have jurisdiction of any action in the nature
of mandamus to compel an officer or employee of the United States
or any agency thereof to perform a duty owed to the plaintiff.”
However, “mandamus is an extraordinary remedy that is granted only
in the exercise of sound discretion.”

Miller v. French, 530 U.S.

327, 339 (2000); Allied Chemical Corp. v. Daiflon, Inc., 449 U.S.
33, 34 (1980)(per curiam)(“the remedy of mandamus is a drastic one,
to be invoked only in extraordinary situations.”); West v. Spellings,
480 F.Supp.2d 213, 217 (D.D.C. 2007).

To obtain mandamus relief,

the plaintiff must show that he has a clear right to the relief sought,
the defendant has a plainly defined and peremptory duty to perform
the act in question, and no other adequate remedy is available.

Rios

v. Ziglar, 398 F.3d 1201, 1206 (10th Cir. 2005); Johnson v. Rogers,
917

F.2d

1283,

1285

(10th

Cir.

1990)(For

mandamus

to

issue,

“[p]etitioner must show that his right to the writ is ‘clear and
indisputable.’”);

see

Heckler

v.

Ringer,

466

U.S.

602,

616

(1984)(“The common-law writ of mandamus, as codified in 28 U.S.C.
§ 1361 . . . is intended to provide a remedy for a plaintiff only
5

if he has exhausted all other avenues of relief and only if the
defendant owes him a clear nondiscretionary duty.”); Simmat v. U.S.
Bureau of Prisons, 413 F.3d 1225, 1236 (10th Cir. 2005); Wilder v.
Prokop, 846 F.2d 613, 620 (10th Cir. 1988); West, 480 F.Supp.2d at
217.

“A plaintiff bears a heavy burden of showing that his right

to a writ of mandamus is ‘clear and indisputable.’”
re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005)).

Id. (citing In
Courts have no

authority under the mandamus statute to order a government official
to perform a discretionary duty.

West, 480 F.Supp.2d at 217.

When

a decision is committed to the discretion of an agency official, a
litigant generally will not have a clear and indisputable right to
any particular result.

See Daiflon, 449 U.S. at 36; Armstrong v.

Cornish, 102 Fed.Appx. 118, 120 (10th Cir.)(unpublished), cert.
denied, 543 U.S. 960 (2004).

DISCUSSION
Having examined all materials filed, the court finds that this
action is subject to being dismissed as frivolous and for failure
to state a claim.

Gabriel v. U.S. Parole Com’n, 319 Fed.Appx. 742

(10th Cir. 2009)(unpublished) 4 (affirming dismissal of mandamus
petition as frivolous under § 1915(e)(2)(B)); Fay v. U.S., 389

4

Unpublished opinions are cited herein for persuasive value only and not as
binding precedent. See Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.

6

Fed.Appx. 802, 803–04 (10th Cir. 2010)(unpublished)(Action before
district court and this appeal found to be frivolous and to count
as strikes where appellant failed to demonstrate that he was entitled
to the “extraordinary remedy” of a writ of mandamus.).

Mr. Bruce

asserts that this court has jurisdiction pursuant to “28-USC-1585
Court of International Trade” and “the Declaration of Independence
of 1776.”

These assertions of jurisdiction are found to be frivolous

as they are not supported with any discussion as to how they might
confer jurisdiction.

Plaintiff’s only other assertion for this

court’s jurisdiction is under 28 U.S.C. § 1361 to compel “an officer
of the United States to perform his duties.”
Plaintiff fails to allege facts establishing any of the
requisite elements for mandamus relief.

He has not satisfied his

heavy burden of showing that he has a clear right to the injunctive
relief he seeks.

Plaintiff complains of acts or inactions that

occurred at the ADX.

He then asks the court to order various Bureau

of Prisons (BOP) officials with offices outside Colorado to, in turn,
order that certain ADX officials take specific actions, but does set
forth facts establishing a peremptory duty on the part of any
defendant to order that he be provided with the requested relief.
Furthermore, plaintiff does not even attempt to show that no
other adequate remedy is available.

Nor could he make such a

showing, given that BOP regulations plainly make that agency’s
7

long-established
federal inmates. 5

prison

administrative

remedies

available

to

Plaintiff suggests no reason why he cannot

adequately challenge any decisions of ADX prison officials by way
of the established administrative remedies, such as appeals provided
in disciplinary matters.

In addition, there

are other more

appropriate judicial remedies for plaintiff’s claim of a violation
of agency regulations or denial of due process in connection with
disciplinary proceedings as well as any claim regarding conditions
of his confinement at the ADX.

To the extent that plaintiff seeks

to challenge prison disciplinary proceedings or sanctions at the ADX,
he is entitled to no relief under § 1651 or in this court.

6

In Preiser

v. Rodriguez, 411 U.S. 475, 498–99 (1973), the U.S. Supreme Court
held that a habeas corpus petition is the proper mechanism for an
inmate to challenge the “fact or duration” of his confinement; and
the Court later extended this ruling to challenges to prison
disciplinary proceedings that affect the length of confinement, such
5
The BOP administrative procedures to be utilized by federal inmates are set
forth at 28 C.F.R. §§ 542.10–542.19.
Except for claims for which other
administrative procedures have been established, federal inmates may seek “formal
review of an issue which relates to any aspect of his/her own confinement.” 28
C.F.R. § 542.10(a).
6
With respect to plaintiff’s claim that BOP regulations were violated when
he was denied a staff representative of his choice, the reasoning in Brown v. Rios,
196 Fed.Appx. 681, 683 (10th Cir. 2006) is instructive.
Prison regulations are “primarily designed to guide correctional
officials in the administration of a prison. [They are] not designed
to confer rights on inmates.” Sandin v. Conner, 515 U.S. 472, 481–
82 (1995). Where a liberty or property interest has been infringed,
the process which is due under the United States Constitution is that
measured by the due process clause, not prison regulations. (Citations
omitted).

8

as those that result in the deprivation or loss of good conduct time.
Muhammad v. Close, 540 U.S. 749 (2004); Edwards v. Balisok, 520 U.S.
641 (1997).

Habeas corpus petitions must be filed in the district

of incarceration.

Likewise, to the extent that Mr. Bruce seeks to

challenge conditions at the ADX, he may do so by filing a civil action
in the appropriate jurisdiction against the persons responsible for
those conditions,7 which appear to be the BOP employees at the ADX
in Colorado.
Finally, the court notes that the common law writ of mandamus
as codified in § 1361 only provides a remedy “if [the plaintiff] has
exhausted all other avenues of relief.”
Court, 426 U.S. 394, 402–03 (1976).

Kerr v. United States Dist.
Mr. Bruce alleges no facts

7
Even if plaintiff’s conditions claims were considered under 28 U.S.C. § 1331,
the essential element of personal participation in the alleged constitutional
violations is not shown as to those defendants over whom this court might have
jurisdiction; and this court has no personal jurisdiction over those defendants
who may have actually participated.
Moreover, liability for constitutional
violations cannot rest upon a theory of respondeat superior or a defendant’s
supervisory position. Rizzo v. Goode, 423 U.S. 362 (1976); Georgacarakos v.
Nalley, 356 Fed.Appx. 210, 212 (10th Cir. 2009)(unpublished) (citing Ashcroft v.
Iqbal, 556 U.S. 662 (2009)). Generally, prison officials are only responsible
for their own constitutional violations, not those of others. Plaintiff names
as defendants various officials at the ADX: David Berkebile, Warden; Jennifer
Coulter, Staff Psychologist; K. Foster, Education Specialist; Kaitlin Turner,
Attorney Advisor; and Patricia Rangel, General Population Unit Manager. He also
names BOP officials who are not located at the ADX: Paul Laird, Regional Director;
Donald Denney, Regional Psychology Services Administrator; and Lewis Morris,
Regional Psychology Treatment Program Coordinator. The regional BOP officials
Paul Laird, Donald Denney, and Lewis Morris, appear to be named based solely upon
their supervisory responsibility over BOP facilities in the region that includes
the ADX. Mr. Bruce alleges no facts whatsoever showing the personal participation
of these three regional officials in decisions regarding the appropriate treatment
or programs for him or other conditions of his confinement at the ADX. See Hill
v. Pugh, 75 Fed.Appx. 715, 719 (10th Cir. 2003)(unpublished).

9

showing that he has fully and properly exhausted the available prison
administrative remedies on all his claims.
In summary, the only action plaintiff could conceivably bring
in this judicial district, since the ADX and its BOP employees are
not located here, is the mandamus petition against Laird, Denney,
and

Morris;

and

this

court

has

no

difficulty

finding

that

petitioner’s claim for mandamus relief against these three BOP
regional officials is frivolous and fails to state a claim.
IT IS THEREFORE ORDERED that plaintiff is granted thirty (30)
days in which to satisfy the filing fee prerequisite by either paying
the full fee or submitting a properly supported Motion to Proceed
without Prepayment of Fees.
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 failure to state a claim for mandamus relief and as
frivolous for the reasons stated herein.
The clerk is directed to send IFP forms to Mr. Bruce.
IT IS SO ORDERED.
Dated this 24th day of February, 2014, at Topeka, Kansas.

s/Sam A. Crow
U. S. Senior District Judge
10