James (ID 77522) v. Roberts et al

Filing 9

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted thirty (30) days in which to submit to the court an initial partial filing fee of $27.50. Any objection to this order must be filed on or before the date payment is due. The failure to pay th e fees as required herein may result in dismissal of this action without prejudice. Within the same thirty-day period, plaintiff must cure the deficiencies in his complaint. Plaintiff's motion 4 to appoint counsel; motion 5 to proceed with Magistrate Judge; motion 6 for production of documents; motion 7 for admissions; and motion 8 for injunctive relief are denied without prejudice. Signed by Senior District Judge Sam A. Crow on 04/09/14. (Mailed to pro se party Tyron James by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TYRON JAMES,
Plaintiff,
v.

CASE NO.

14-3042-SAC

RAY ROBERTS, et al.,
Defendants.
MEMORANDUM AND ORDER
This pro se civil action was filed pursuant to 42 U.S.C. § 19831
by an inmate of the Hutchinson Correctional Facility, Hutchinson,
Kansas (HCF).

Having examined the materials filed, the court

assesses an initial partial filing fee.

In addition, the court finds

that the complaint is deficient in several ways.

Plaintiff is given

time to pay the part fee and to cure the deficiencies.

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 total $400.00
and consist of the statutory fee of $350.00 under 28 U.S.C. § 1914(a)

1
Plaintiff baldly asserts the following “additional” jurisdictional bases:
18 U.S.C § 1964(A), Violation of 1st, 5th, 14th Amendment, and “Rico Act Claim”.
However, he alleges no obvious factual basis or other explanation for citing these
provisions, and they are not considered further.

1

plus an administrative fee of $50.00; or for one granted leave to
proceed without prepayment of fees the fee is $350.00.

Plaintiff

has filed a Motion for Leave to Proceed without Prepayment of Fees
(Doc. 3) and has attached an Inmate Account Statement in support as
statutorily mandated.

Under 28 U.S.C. § 1915(b)(1), a prisoner

granted such leave is not relieved of the obligation to pay the full
fee of $350.00 for filing a civil action.

Instead, being granted

such leave merely entitles him to pay the filing fee over time through
payments

deducted

automatically

from

his

inmate

account

as

authorized by 28 U.S.C. § 1915(b)(2).
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 was $ 138.80, and the average monthly balance
was $ 105.04.

The court therefore assesses an initial partial filing

fee of $ 27.50, twenty percent of the average monthly deposit rounded
to the lower half dollar.

Plaintiff is given time to submit the fee

to the court, and warned that his failure to comply within the
prescribed time may result in dismissal of this action without
further notice.
2

ALLEGATIONS AND CLAIMS
As the factual background for this lawsuit, Mr. James alleges
as follows.
II”

On February 27, 2013, he was charged with two “class

disciplinary

infractions

at

the

HCF,

one

performance and the other charging disrespect.

based

on

work

The disciplinary

reports were written 39 days after the incidents occurred.

A

disciplinary hearing was held on March 7, 2013, and Mr. James was
found

guilty.

segregation

and

He

was

30

days

sanctioned

with

restrictions

15

on

days

disciplinary

privileges

for

each

infraction, loss of personal property, 100% loss of good time for
the work performance infraction, and 25% loss of good time for the
disrespect infraction.

Mr. James appealed to the HCF Warden as well

as to the Secretary of Corrections, and the hearing officer’s
decision was affirmed at both levels.
Mr. James then filed an action in Reno County District Court
to challenge the disciplinary proceedings.

The district court

“affirmed” the hearing officer’s decision, finding there was “no
liberty interest plaintiff to argue the denial of due process.” 2
Plaintiff filed a Notice of Appeal, which was assigned Appellate Case
No. 13-110412.

He prepared his appellate brief and obtained 19

2
Plaintiff does not appear to raise a due process or any other constitutional
challenge to these disciplinary proceedings in this action. Nor does he reveal
what element of the requisite due process, if any, he claimed in state court had
been denied.

3

copies of it.

On October 8, 2013, he sent one original and 17 copies

of his brief to the Kansas Court of Appeals (KCA), and asked the court
to return a file-stamped copy.

Defendant Patti Keen, mail room

manager at the HCF, charged Mr. James $5.49 for “Legal/Official
Postage” to mail his package containing the original and 17 copies
of his brief to the KCA.3

Plaintiff received a letter dated October

11, 2013, from Jason Oldham, Chief Deputy Clerk of the Kansas
Appellate Courts, stating that the Clerk’s office had received two
copies of his brief on that day and that the case was on hold awaiting
the 14 additional copies that were required in order for his brief
to be filed.4

Days later, Mr. James sent the Clerk a letter with a

picture of the package he had mailed attached.

In this letter he

stated that he sent the package with 18 briefs enclosed and did not
know what had happened between the time he placed his legal mail “in
the hands of (HCF) postal service” and the Clerk’s receipt of the
mail.

He further stated that the letter was verification of his

compliance with Rule 6.09(a).

He then requested that the Clerk “make

the needed copies since (he had) no more funds” and was “not at fault”
for the Clerk having received “an incomplete package.”

The court

takes judicial notice of the Kansas Appellate Courts docket for Case

3
Plaintiff adds that he sent two copies of his brief to Warden Cline, which
apparently left him with no copy. It is an inmate’s responsibility to prepare
and retain a copy of any materials he sends to the court.
4
Plaintiff exhibits this letter, which stated that “Kansas Supreme Court Rule
6.09(a) requires 16 briefs for filing appeals.”

4

No. 110412, which shows “Order of Dismissal/ by the Court (Aplnt did
not file br)” entered on January 16, 2014.

Plaintiff states that

his appeal was dismissed due to “lack of copies.”

Plaintiff also

exhibits the Order of dismissal entered by the KCA which provided:
On December 19, 2013, this court issued an order noting
that the Appellant’s brief was past due.
The order
directed the Appellant to file a brief by January 2, 2014,
or the appeal would be dismissed . . . . The Appellant
has filed no brief and has not responded to this court’s
order. The appeal is accordingly dismissed.
Complaint (Doc. 1-1) at 6.
As Count I in his complaint, Mr. James asserts, based upon the
foregoing facts, that his right of access to the courts under the
First Amendment was violated.

As Count II, he claims “Mail Fraud”

also based upon the foregoing facts.

As Count III, he asserts a

conspiracy to deny his right to equal protection of the law.

As

factual support for his third count, plaintiff alleges no facts and
provides only very general phrases: “using canteen venders (sic)”
as “the only way to obtain legal materials needed to follow” court
rules; IMPPs and general orders of the Kansas Department of
Corrections (KDOC) give conflicting information to inmates; the “HCF
Facility makes it hard” on an inmate trying to file a complaint
against the facility; and “facility rules violate” the inmate’s right
to court access.
Plaintiff seeks payment of 200 million dollars in punitive and
“monitary

(sic)

damages”

for

“emotional
5

distress”

from

the

constitutional violations and the mental stress he has suffered over
the course of the alleged events.

SCREENING
Because Mr. James 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
theory on plaintiff’s behalf.”
1173-74 (10th Cir. 1997).

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

Having examined all materials filed, the

court finds that the complaint is subject to being dismissed for the
6

reasons that plaintiff fails to allege sufficient facts to establish
liability on the part of the named defendants and fails to allege
sufficient facts to state a claim for relief.

FAILURE TO ALLEGE PERSONAL PARTICIPATION
As Mr. James was previously informed by this court in a prior
case, in order to assign liability to a defendant he must allege facts
showing the actual personal participation of that defendant in the
allegedly illegal acts.5

Henry v. Storey, 658 F.3d 1235, 1241 (10th

Cir. 2011)(“[P]ersonal participation in the specific constitutional
violation complained of is essential.”).

Plaintiff does not

adequately plead personal participation on the part of any of the
three named defendants in the failed delivery to the KCA of 16 copies
of his appellate brief or in any other constitutional violation.
First, as plaintiff has also previously been informed, the mere
affirmance of the denial of an administrative grievance does not
amount to personal participation in the events complained about in
the grievance, which obviously preceded the grievance process.
Stewart v. Beach, 701 F.3d 1322, 1328 (10th Cir. 2012).

See

Plaintiff

does not allege any acts on the part of defendant Warden Cline or
defendant Secretary Roberts other than that each affirmed the denial
of

5

his

administrative

grievance

challenging

his

disciplinary

See James v. Roberts, Case No. 11-cv-3129-SAC (July 19, 2011)(Doc. 3).

7

convictions.

Second, plaintiff’s allegations as to the involvement

of defendant Keen do not suggest her participation in any wrongdoing.
Plaintiff alleges that defendant Keen was the manager of the HCF
mailroom and that she charged him $5.49 to mail his package, which
he alleges contained the requisite number of copies of his appellate
brief.

His allegations indicate that the package was sent and

received.

He does not allege that defendant Keen refused to mail

his package, that she removed items from his package, or that she
fraudulently charged him for mail that was not sent.

Cf. Brown v.

Saline County Jail, 303 Fed.Appx. 678 (10th Cir. 2008).

Accepting

the truth of plaintiff’s allegations regarding defendant Keen, no
unconstitutional conduct on her part is alleged in the complaint.
Unless plaintiff describes additional acts on the part of each
defendant that plausibly amounted to a violation of his federal
constitutional rights, this complaint shall be dismissed for failure
to allege personal participation on the part of any named defendant.

FAILURE TO STATE CLAIM IN COUNT II AND III
Plaintiff baldly asserts “mail fraud” in Count II.

Mail fraud

is in the nature of a state law claim, which is generally not a basis
for relief under 42 U.S.C. § 1983.6

In any event, no facts whatsoever

6
The court does not construe this Count as plaintiff’s attempt to raise a
cause of action for RICO violations based on fraud. Even if it were so construed,
plaintiff has clearly not met the “heightened pleading requirements” that apply

8

are alleged to support the claim that any defendant engaged in mail
fraud.
Plaintiff’s claims of conspiracy and denial of equal protection
in Count III are not supported by adequate facts.

Plaintiff’s equal

protection claim fails because he does not allege facts suggesting
that he is a member of a suspect classification, that he was treated
differently from other similarly-situated inmates, or that any of
defendants’ alleged acts did not serve a legitimate penological
purpose.

In short, Mr. James has not alleged the essential elements

of a claim under the Equal Protection Clause of the Fourteenth
Amendment.

Fogle, 435 F.3d at 1261; Barney v. Pulsipher, 143 F.3d

1299, 1312 (10th Cir. 1998).

See Rider v. Werholtz, 548 F.Supp.2d

1188 (D.Kan. 2008)(citing Riddle v. Mondragon, 83 F.3d 1197, 1207
(10th Cir. 1996)).

Plaintiff’s claim of a conspiracy likewise fails

because he does not allege specific facts establishing the requisite
elements of this type of claim.

He does not allege facts showing

an agreement among defendants to violate plaintiff’s constitutional
rights or concerted action taken by defendants in furtherance of the
conspiracy.

Hammond v. Bales, 843 F.2d 1320, 1323 (10th Cir. 1988).

Conclusory allegations are not sufficient for either a denial of
equal protection or a conspiracy claim.

in the RICO context.
See Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir.
2007)(“[V]ague and conclusory allegations of fraud failed to come anywhere near
satisfying the specificity requirements of Federal Rule Civil Procedure 9(b).”).

9

DAMAGES CLAIMS BARRED
In his complaint, plaintiff seeks money damages based upon
alleged mental and emotional injury.

42 U.S.C. § 1997e(e) 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.
Id.

No allegations are made suggesting that Mr. James has suffered

physical injury.

It follows that unless plaintiff alleges facts

showing a prior physical injury, his claim for money damages is
barred.
Plaintiff also seeks punitive damages.

However, in order to

state a claim for punitive damages, plaintiff must allege facts
showing bad motive on the part of defendants.

Mr. James alleges no

facts suggesting a bad motive on the part of any defendant.

OTHER FILINGS
The court has considered plaintiff’s motion for appointment of
counsel and finds that it should be denied without prejudice.

There

is no constitutional right to appointment of counsel in a civil
action, and the matter lies within the court’s discretion.

In this

case, it is not clear that plaintiff states a colorable claim.
Accordingly, the court finds that appointment of counsel is not
warranted at this time.
10

The court has considered plaintiff’s Motion for Permission to
Proceed with Magistrate (Doc. 5) and denies this motion.

The purpose

of the magistrate system is to ease the burden on federal judges.
Hall v. Vance, 887 F.2d 1041, 1045 (10th Cir. 1989).

Plaintiff

appears to seek immediate assignment of this case to a magistrate
judge citing a prior adverse ruling by the undersigned judge.7

Prior

adverse rulings do not entitle a litigant to reassignment of a case.
Furthermore, “[d]istrict judges may decline to refer any matter to
a magistrate, and retain plenary authority over when, what, and how
many pretrial matters are assigned to magistrates . . . .”

See Peretz

v. U.S., 501 U.S. 923, 938 (1991).8
The court has considered plaintiff’s Motion for Production of
Document (Doc. 6) and Motion for Admissions (Doc. 7), and denies the
motions.

These discovery motions are without adequate factual or

legal basis and do not show plaintiff’s compliance with the Federal
Rules of Civil Procedure.

Moreover, they are premature because

service has not been ordered upon any defendant.

The court will

7
Plaintiff has not filed a motion for recusal, and prior adverse rulings are
not grounds for recusal in any event.
8
In order for a magistrate’s jurisdiction to be exercised, a magistrate must
be specially designated under 28 U.S.C. § 639(c)(1) by the district court or courts
he (or she) serves. The Federal Magistrate Act provides that “[u]pon the consent
of the parties, a full-time United States magistrate judge . . . may conduct any
or all proceedings in a jury or nonjury civil matter and order the entry of judgment
in the case, when specially designated to exercise such jurisdiction by the
district court.” 28 U.S.C. § 636(c)(1). Roell v. Withrow, 538 U.S. 580, 585
(2003). Plaintiff is free to notify the clerk that he consents to assignment of
a magistrate to conduct proceedings in this case; however, defendants must consent
as well.

11

order service upon defendants only after the screening process has
been completed and only if the matter is allowed to go forward.
The court has considered plaintiff’s Motion for Injunctive
Relief (Doc. 8) and denies this motion.

Plaintiff does not even

specify what type of injunctive relief he seeks.

His allegation that

he needs injunctive relief to “monitor the defendant motives and
actions” is completely conclusory.

Plaintiff’s other allegations

in this motion are also vague and conclusory and even seem contrary
to those in his complaint.

His vague allegations as to proper

administrative remedies do not suggest any basis for seeking
injunctive relief or the type of injunction sought.

His allegations

that the DOC “will not allow” an inmate “to get copy tickets so that
he” can provide a court with the requisite number of documents are
vague and conclusory, and no facts are alleged to suggest how a KDOC
regulation or policy regarding copies resulted in the failed delivery
described in the complaint.

Mr. James did not allege in his

complaint that he was somehow prevented from making the requisite
number of copies.

The same type of inconsistency is found in

plaintiff’s allegations in this motion that he “never violated any
mail rules” and had the funds to pay for the copy tickets.

If Mr.

James wants to change his complaint to allege that he was prevented
by a policy or regulation from making the requisite number of copies
of his appellate brief and to seek injunctive relief against the
12

underlying policy on copying, he must file a complete Amended
Complaint

upon

court-approved

forms.

An

Amended

Complaint

completely supersedes any prior complaint, and must therefore
contain all allegations and claims that the plaintiff intends to
present.
IT IS THEREFORE ORDERED that plaintiff is granted thirty (30)
days in which to submit to the court an initial partial filing fee
of $ 27.50.

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 must cure the deficiencies in his complaint discussed
herein.
IT IS FURTHER ORDERED that plaintiff’s Motion to Appoint Counsel
(Doc. 4); Motion to Proceed with Magistrate Judge (Doc. 5); Motion
for Production of Document (Doc. 6); Motion for Admissions (Doc. 7);
and Motion for Injunctive Relief (Doc. 8) are denied, without
prejudice.
IT IS SO ORDERED.
Dated this 9th day of April, 2014, at Topeka, Kansas.

s/Sam A. Crow
U. S. Senior District Judge
13