Staples v. United States of America et al

Filing 21

NOTICE AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted to and including May 17, 2018, to show cause why this matter should not be dismissed for failure to state a claim for relief. Signed by U.S. Senior District Judge Sam A. Crow on 04/17/18. Mailed to pro se party William Staples by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WILLIAM STAPLES,
Plaintiff,
v.

CASE NO. 16-3136-SAC

UNITED STATES OF AMERICA, et al.,
Defendants.

NOTICE AND ORDER TO SHOW CAUSE
This matter is before the Court on plaintiff’s amended complaint
(Doc. #19) in this civil rights action brought under Bivens1. The Court
has conducted an initial review of the complaint under 28 U.S.C. §1915A
and enters the following findings and order.
Background
The amended complaint names as defendants the United States of
America and the following employees of the federal Bureau of Prisons
(BOP): Mark S. Inch, Director of the BOP; Eian Guy, Administrator of
Inmate Appeals; the unnamed Regional Director of the North Central
Region of the BOP; former Warden Claude Maye of the U.S. Penitentiary,
Leavenworth, Kansas (USPL); Lieutenant Sweeting, a supervisory
officer at USPL; and Correctional Officer Schwarz at USPL. Plaintiff
also names the Unit Disciplinary Committee at USPL as a defendant.
The complaint alleges that in 2015, plaintiff was found guilty
in three incident reports. Although he does not detail the nature of
those reports, he states that the sanctions imposed were brief losses
of commissary privileges, telephone use, and visitation. The reports
1Bivens

(1971).

v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388

later were expunged. Plaintiff alleges that he suffered mental anguish
and hardship as a result of the sanctions.
The complaint also alleges that on January 16, 2015, defendant
Schwarz escorted him to the office of defendant Sweeting where he
underwent a strip search. Plaintiff claims that conducting the strip
search in that office violates a liberty interest established by an
unidentified BOP Program Statement, but he does not identify the
specific supporting facts upon which relies. He seeks damages and
costs.
Screening
A federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental entity or an
officer or employee of such an entity. See 28 U.S.C. §1915A(a).
Following this review, the court must dismiss any portion of the
complaint that is frivolous, malicious, fails to state a claim upon
which relief may be granted, or seeks monetary damages from a defendant
who is immune from that relief. See 28 U.S.C. § 1915A(b).
In screening, a court liberally construes pleadings filed by a
party proceeding pro se and applies “less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S.
89, 94 (2007).
To avoid a dismissal for failure to state a claim, a complaint
must set out factual allegations that “raise a right to relief above
the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007). The court accepts the well-pleaded allegations in the
complaint as true and construes them in the light most favorable to
the plaintiff. Id. However, “when the allegations in a complaint,
however true, could not raise a [plausible] claim of entitlement to

relief,” the matter should be dismissed. Id. at 558. A court need not
accept “[t]hreadbare recitals of the elements of a cause of action
supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Rather, “to state a claim in federal court, a
complaint must explain what each defendant did to [the pro se
plaintiff]; when the defendant did it; how the defendant’s action
harmed [the plaintiff]; and what specific legal right the plaintiff
believes the defendant violated.” Nasious v. Two Unknown B.I.C.E.
Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).
The Tenth Circuit has observed that the U.S. Supreme Court’s
decisions in Twombley and Erickson set out a new standard of review
for dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii) dismissals. See
Key v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007)(citations omitted).
Following those decisions, courts “look to the specific allegations
in the complaint to determine whether they plausibly support a legal
claim for relief.” Kay, 500 F.3d at 1218 (quotation marks and internal
citations omitted). A plaintiff “must nudge his claims across the line
from conceivable to plausible.” Smith v. United States, 561 F.3d 1090,
1098 (10th Cir. 2009). In this context, “plausible” refers “to the
scope of the allegations in a complaint: if they are so general that
they encompass a wide swath of conduct much of it innocent,” then the
plaintiff

has

not

“nudged

[the]

claims

across

the

line

from

conceivable to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247
(citing Twombly at 1974).
Disciplinary sanctions
As a prisoner, plaintiff retains “only a narrow range of
protected liberty interests.” Rezaq v. Nalley, 677 F.3d 1001, 1011
(10th Cir. 2012)(internal citation omitted). In Sandin v. Connor, 515

U.S. 472, 484 (1995), the United States Supreme Court held that for
a prisoner, a “liberty interest 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, nonetheless imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison
life.” Id. at 483-84.
The Eighth Amendment requires prison officials to “provide
humane conditions of confinement … [and] “take reasonable measures
to guarantee the safety of the inmates.’” Farmer v. Brennan, 511 U.S.
825,, 832 (1994)(quoting Hudson v. Palmer, 468 U.S. 517, 526-27
(1984)).
A prisoner alleging Eighth Amendment violations arising from his
conditions of confinement must allege and prove an objective
component, showing that he is “incarcerated under conditions posing
a substantial risk of serious harm”, Farmer, 511 U.S. at 834 (quoting
Wilson v. Seiter, 501 U.S. 294, 298 (1991)). The prisoner also must
allege and prove a subjective component showing that the defendant
official acted with a sufficiently culpable state of mind, defined
as “‘deliberate indifference’ to inmate health or safety.” Farmer,
511 U.S. at 834 (quoting Wilson, 501 U.S. at 302-03).
Here, the brief denials of commissary, visitation, and telephone
access described by the plaintiff do not suggest any atypical hardship
was imposed upon him that warrants constitutional protection and do
not plausibly state a claim under the Eighth Amendment. Rather, these
brief limitations on privileges normally afforded to inmates are well
within the ordinary events of prison life. See Muhammad v. Finley,
74 Fed.Appx. 847, 849 (10th Cir. 2003)(disciplinary segregation and

loss of commissary privileges did not give rise to a liberty interest);
Blum v. Fed. Bureau of Prisons, 1999 WL 638232 (10th Cir. Aug. 23,
1999)(90-day period without commissary, radio, and telephone access
did not implicate a liberty interest); Phillips v. Glanz, 2015 WL
729686 (N.D. Okla. Feb. 19, 2015)(freezing of inmate’s commissary
account and denying visitation and phone privileges for 21 months did
not violate Eighth Amendment); and Davis v. Sturch-Sheriff, 2013 WL
5366976 (E.D. Okla. Sep. 24, 2013)(12 day period during which prisoner
was not allowed to purchase clothing or hygiene item and was denied
telephone and visitation privileges did not violate Eighth
Amendment).2
Finally, under the Prison Litigation Reform Act, “[n]o 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.” 42 U.S.C.
§ 1997e(e). Therefore, plaintiff’s claims of mental anguish and
hardship arising from the sanctions imposed for the incident reports
do not state a claim for relief.
Strip search
Plaintiff claims that his rights were violated when he was
subjected to a visual strip search in an office at USPL. He does not
challenge the procedure itself but contends that he has a liberty
interest created by an unidentified BOP Program Statement to have the
search conducted in a private location.
Prisoners have a Fourth Amendment right to be free from
The Court notes that at least one other court has considered and rejected similar
claims by plaintiff. See Staples v. USA, et al., 2017 WL 5640877 *2 (W.D. La. Sep.
25, 2017)(rejecting plaintiff’s claims for damages for 30 days in special housing
unit, 60 days loss of visitation, 60 days loss of phone privileges, and 120 days
loss of commissary; sanctions identified were not atypical or significant and did
not implicate a protected liberty interest).
2

unreasonable search and seizure. Foote v. Spiegel, 118 F.3d 1416, 1425
(10th Cir. 1997). However, correctional officers must be allowed to
conduct such searches under reasonable conditions to promote
legitimate penological goals, such as detecting contraband. See Bell
v. Wolfish, 441 U.S. 520, 558 (1979). See also Leek v. Miller, 698
Fed.Appx. 922, 926 (10th Cir. 2017)(unpublished)(“strip searches of
prisoners are not per se prohibited”)(citing Farmer v. Perrill, 288
F.3d 1254, 1260 (10th Cir. 2002)(strip search of a prisoner must be
“reasonably related to a legitimate penological interest”).
Here, plaintiff acknowledges that the search he underwent was
conducted in an office with two staff members present. He does not
allege that he was touched, taunted, or viewed by other inmates, and
he does not challenge the purpose of the search or allege any physical
harm. These conditions persuade the Court that the strip search of
which plaintiff complains was conducted under reasonable
circumstances and does not support a claim for relief.
Remaining claims
The amended complaint makes no specific claims against the
Director of the BOP, the Administrator of the National Inmate Appeals,
a Regional Director of the BOP, or former Warden Maye. Liability in
a Bivens action can only be based upon a defendant’s personal
participation in the alleged deprivation of rights. See Kite v.
Kelley, 546 F.2d 334, 338 (10th Cir. 1976). While the portion of the
complaint that addresses the nature of the case states that these
defendants denied or rejected his claims (Doc. #19, p. 5), the denial
of grievances

alone, without any connection to the violation of

constitutional rights, is insufficient to establish personal
participation in the alleged violations. Whitington v. Ortiz, 307

Fed.Appx. 179, 193 (10th Cir. 2009)(quoting Larson v. Meek, 240
Fed.Appx. 777, 780 (10th Cir. 2007)). Accordingly, these defendants
are subject to dismissal.
Likewise, plaintiff offers no claims against the United States
or the Unit Discipline Committee, and these defendants also are
subject to dismissal.
Order to Show Cause
For the reasons set forth, this matter is subject to dismissal.
Plaintiff is granted to and including May 17, 2018, to show cause why
this matter should not be dismissed for failure to state a claim for
relief. The failure to file a timely response may result in the
dismissal of this matter without additional prior notice.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff is granted to
and including May 17, 2018, to show cause as directed.
IT IS SO ORDERED.
DATED:

This 17th day of April, 2018, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge