Howard v. Bourbon County Jail et al

Filing 11

NOTICE AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted until May 29, 2017, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why Plaintiff's Complaint 1 should not be dismissed. Signed by Magistrate Judge David J. Waxse on 05/08/17. Mailed to pro se party Jonathan Stuart Howard by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JONATHAN STUART HOWARD,
Plaintiff,
v.

CASE NO. 16-3256-SAC-DJW

BOURBON COUNTY JAIL, and
RACHEL THOMPSON,
Defendants.
NOTICE AND ORDER TO SHOW CAUSE
Plaintiff Jonathan Stuart Howard is hereby required to show good cause, in writing, to the
Honorable Sam A. Crow, United States District Judge, why this action should not be dismissed
due to the deficiencies in Plaintiff’s Complaint that are discussed herein.
I. Nature of the Matter before the Court
Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is
currently incarcerated at the Western Reception and Diagnostic Correctional Center in St.
Joseph, Missouri. Plaintiff filed his Complaint (Doc. 1) while incarcerated at the Bourbon
County Jail in Fort Scott, Kansas (“BCJ”). Plaintiff alleges that while detained at BCJ staff
refused delivery of his outgoing mail and delayed the receipt of incoming mail. Plaintiff names
as Defendants the BCJ-SEKRCC (Southeast Kansas Regional Correctional Center), and Rachel
Thompson, secretary at BCJ.
II. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or an officer or an employee of a governmental entity. 28 U.S.C.
§ 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised

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claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be
granted, or that seek monetary relief from a defendant who is immune from such relief. 28
U.S.C. § 1915A(b)(1)–(2).
“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 must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988)
(citations omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). A court
liberally construes a pro se complaint and applies “less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). In addition, the court accepts
all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th
Cir. 2006). On the other hand, “when the allegations in a complaint, however true, could not
raise a claim of entitlement to relief,” dismissal is appropriate. Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 558 (2007).
A pro se litigant’s “conclusory allegations without supporting factual averments are
insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires “more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action.” Twombly, 550 U.S. at 555 (citations omitted). The complaint’s “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 the defendant’s action harmed [the plaintiff]; and, what specific legal right the

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plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 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 a plaintiff’s behalf.” Whitney v. New
Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citation omitted).
The Tenth Circuit has pointed out that the Supreme Court’s decisions in Twombly and
Erickson gave rise to a new standard of review for § 1915(e)(2)(B)(ii) dismissals. See Kay v.
Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (citations omitted); see also Smith v. United States,
561 F.3d 1090, 1098 (10th Cir. 2009). As a result, 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 (citation omitted). Under this new standard, “a plaintiff must ‘nudge his claims across the
line from conceivable to plausible.’” Smith, 561 F.3d at 1098 (citation omitted). “Plausible” in
this context does not mean “likely to be true,” but rather 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 [his] claims across the line from conceivable to
plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S.
Ct. at 1974).
III. DISCUSSION
1. Exhaustion of Administrative Remedies
Under 42 U.S.C. § 1997e(a), a prisoner must exhaust his administrative remedies prior to
filing a lawsuit in federal court regarding prison conditions.

42 U.S.C. § 1997e(a).

Section 1997e(a) expressly provides:
No action shall be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are
exhausted.
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Id. This exhaustion requirement “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).1
While failure to exhaust is an affirmative defense rather than a pleading requirement, and a
plaintiff is not required to plead it in the complaint, when that failure is clear from materials filed
by plaintiff, the court may sua sponte require plaintiff to show that he has exhausted. See
Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007) (acknowledging district
courts may raise exhaustion question sua sponte, consistent with 42 U.S.C. § 1997e(c)(1) and 28
U.S.C. §§ 1915 and 1915A, and dismiss prisoner complaint for failure to state a claim if it is
clear from face of complaint that prisoner has not exhausted administrative remedies).
This action is subject to dismissal because it appears from the face of the Complaint that
Plaintiff failed to fully and properly exhaust all available prison administrative remedies on his
claim prior to filing this action in federal court. Plaintiff failed to respond to the question
regarding exhaustion of administrative remedies on his form complaint. (Doc. 1, at 5.) Because
failure to exhaust appears from the face of the Complaint, Plaintiff is required to show that he
has fully and properly exhausted on each of the grounds raised in the Complaint.
2. Improper Defendants
b. BCJ
Plaintiff names BCJ as a Defendant in this case. “To state a claim under § 1983, a
plaintiff must allege the violation of a right secured by the Constitution and laws of the United

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To satisfy this requirement, a prisoner must fully comply with the institution’s grievance procedures. Jones v.
Bock, 549 U.S. 199, 218 (2007); Woodford v. Ngo, 548 U.S. 81, 90 (2006); Little, 607 F.3d at 1249 (The “inmate
may only exhaust by properly following all the steps laid out in the prison system’s grievance procedures.”)(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)).

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States, and must show that the alleged deprivation was committed by a person acting under color
of state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (emphasis added). The detention facility is
not a “person” within the meaning of § 1983. See Will v. Michigan Dept. of State Police, 491
U.S. 58, 66, 71 (1989); Clark v. Anderson, No. 09-3141-SAC, 2009 WL 2355501, at *1 (D. Kan.
July 29, 2009); see also Aston v. Cunningham, No. 99–4156, 2000 WL 796086 at *4 n.3 (10th
Cir. Jun. 21, 2000) (“a detention facility is not a person or legally created entity capable of being
sued”); Busekros v. Iscon, No. 95-3277-GTV, 1995 WL 462241, at *1 (D. Kan. July 18, 1995)
(“[T]he Reno County Jail must be dismissed, as a jail is not a ‘person’ within the meaning of
§ 1983.”). Accordingly, this action is subject to dismissal as against Defendant BCJ.
3. Mootness of Request for Equitable Relief
Plaintiff’s only request for relief states that his Complaint is justified and his “mail should
not be withheld or refused based on a secretary’s discretion.” (Doc. 1, at 5.) To the extent
Plaintiff is seeking injunctive relief, his request for relief is moot.

Plaintiff is no longer

incarcerated at BCJ.
Article III of the Constitution extends the jurisdiction of federal courts only to “live,
concrete” cases or controversies. Rio Grande Silvery Minnow v. Bureau of Reclamation, 601
F.3d 1096, 1109 (10th Cir. 2010). “Article III’s requirement that federal courts adjudicate only
cases and controversies necessitates that courts decline to exercise jurisdiction where the award
of any requested relief would be moot—i.e. where the controversy is no longer live and
ongoing.” Cox v. Phelps Dodge Corp., 43 F.3d 1345, 1348 (10th Cir. 1994), superseded by
statute on other grounds. Consequently, “[m]ootness is a threshold issue because the existence
of a live case or controversy is a constitutional prerequisite to federal court jurisdiction.” Rio
Grande, 601 F.3d at 1109 (internal quotations and citations omitted).

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“Past exposure to illegal conduct does not in itself show a present case or controversy
regarding injunctive relief.” O’Shea v. Littleton, 414 U.S. 488, 495 1974). The Tenth Circuit
has applied this principle to § 1983 actions brought by inmates, and held that an inmate’s transfer
from one prison to another generally renders moot any request for injunctive relief against the
employees of the original prison concerning the conditions of confinement.

See Green v.

Branson, 108 F.3d 1296, 1299–1300 (10th Cir. 1997); see also Wirsching v. Colorado, 360 F.3d
1191, 1196 (10th Cir. 2004) (inmate’s release from prison moots his claims for declaratory and
injunctive relief); McAlpine v. Thompson, 187 F.3d 1213, 1215 (10th Cir. 1999) (recognizing
prisoner’s release from prison mooted his § 1983 claim for injunctive relief); Love v. Summit
County, 776 F.2d 908, 910 n.4 (10th Cir. 1985) (noting transfer of inmate to different prison
renders his § 1983 claim for injunctive relief moot).
The mootness doctrine is based on the reality that even if the inmate receives injunctive
relief, the defendants from the former prison would be unable to provide the relief to plaintiff.
Plaintiff was transferred from the BCJ after he filed his Complaint. See Docs. 7,8 and 10 (Notice
of Change of Address). Because Plaintiff seeks injunctive relief only, and the specific relief
relates solely to the alleged deprivations at the BCJ, the penal institution where the alleged
violations occurred but at which he is no longer incarcerated, the Court would be unable to
provide Plaintiff with effective relief. Therefore, Plaintiff’s § 1983 claims seeking equitable
relief against the BCJ are moot.
Issues that are “capable of repetition yet evading review,” are an exception to the
mootness doctrine. Riley v. INS, 310 F.3d 1253, 1257 (10th Cir. 2002) (citations omitted). In
this case, the issues are not capable of being repeated as Plaintiff is no longer in the custody of
the BCJ. To the extent Plaintiff seeks injunctive relief, his claims are moot and should be

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dismissed under 28 U.S.C. § 1915A(b) with prejudice because Plaintiff cannot state a plausible
claim for relief.
IV. Response Required
For the reasons stated herein, it appears that this action is subject to dismissal in its
entirety. Plaintiff is therefore required to show good cause why his Complaint (Doc. 1) should
not be dismissed for the reasons stated herein. The failure to file a timely, specific response
waives de novo review by the District Judge, see Thomas v. Arn, 474 U.S. 140, 148–53 (1985),
and also waives appellate review of both factual and legal questions. Makin v. Col. Dept. of
Corr., 183 F.3d 1205, 1210 (10th Cir. 1999).
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is granted until
May 29, 2017, in which to show good cause, in writing, to the Honorable Sam A. Crow, United
States District Judge, why Plaintiff’s Complaint (Doc. 1) should not be dismissed for the reasons
stated herein.
IT IS SO ORDERED.
Dated in Kansas City, Kansas, on this 8th day of May, 2017.
s/ David J. Waxse
David J. Waxse
U. S. Magistrate Judge

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