Dale (ID 91014) v. Heimgartner et al

Filing 15

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted until November 26, 2017, to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why plaintiff's complaint should not be dismissed. Until November 26, 2017, plaintiff may file a complete and proper Amended Complaint to cure all the deficiencies. Plaintiff's motions to file under seal and gag order all defendants 2 , for preliminary injunction 4 , to appoint counsel 9 , requesting a ruling on the motion for preliminary injunction 11 , and requesting a telephone hearing on his motion 12 are denied. Signed by District Judge Sam A. Crow on 10/27/17. Mailed to pro se party Christopher Michael Dale by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CHRISTOPHER MICHAEL DALE,
Plaintiff,
v.

CASE NO. 17-3057-SAC

JAMES HEIMGARTNER, et al.,
Defendants,
MEMORANDUM AND ORDER
AND ORDER TO SHOW CAUSE
Mr. Dale, an inmate confined in the El Dorado Correctional Facility in El Dorado, Kansas, filed a
pro se civil rights complaint pursuant to 42 U.S.C. § 1983.1 He proceeds in forma pauperis.2 Plaintiff’s
complaint rambles and appears to have been filed with a page missing. From a careful review, however,
the court has gleaned that in 2013 and 2014 Mr. Dale was assaulted by gang members at the correctional
facilities in Lansing and Hutchinson because he is a jailhouse informant. As relief, he seeks (1) a
declaratory judgment stating that he has the right to be free from assault by other inmates and that
defendants have violated his Eighth Amendment rights; (2) injunctive relief that prevents defendants from
transferring him to the correctional facilities in Lansing or Hutchinson or keeping him at El Dorado, and
which requires defendants to transfer plaintiff to a facility in Norton, Oswego, or somewhere else safe;
and (3) $75,000 in compensatory damages, $10,000 per defendant in punitive damages, and costs and
fees.
SCREENING UNDER 28 U.S.C. § 1915A
The court is required by statute to screen the 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

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Plaintiff subsequently notified the court that he has been transferred to Norton Correctional Facility in
Norton, Kansas.
2

On April 11, 2017, the court granted plaintiff’s motion to proceed in forma pauperis and directed plaintiff
to pay an initial partial filing fee of $20.50 within 14 days of receiving the order. Plaintiff made the initial payment
on April 17, 2017.

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a defendant immune from such relief. 28 U.S.C. § 1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(B). “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, 48-49 (1988)(citations omitted); Northington v.
Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). A pro se party’s complaint must be given a liberal
construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, a party proceeding pro se has “the
burden of alleging sufficient facts on which a recognized legal claim could be based.” Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991).
Having considered plaintiff’s allegations, the court finds the complaint is subject to summary
dismissal for several reasons. First, any claims related to the alleged assaults,3 which occurred in 2013
and 2014, are time-barred. The Supreme Court directs courts to look to state law for the appropriate
period of limitations in cases filed under 42 U.S.C. § 1983. Wilson v. Garcia, 471 U.S. 261, 266–67
(1985). In Kansas, that period is two years. See Baker v. Board of Regents of State of Kan., 991 F.2d 628,
630–31 (10th Cir. 1993) (two-year statute of limitations in K.S.A. 60–513 applies to civil rights actions
brought pursuant to 42 U.S.C. § 1983). Plaintiff also presents no argument or allegation that he has
exhausted administrative remedies with respect to the alleged assaults. Under 42 U.S.C. § 1997e(a), “a
prisoner must exhaust his administrative remedies prior to filing a lawsuit regarding prison conditions in
federal court.” 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). The court may
dismiss sua sponte a prisoner complaint when it is clear on the face of the complaint that the prisoner has
not exhausted administrative remedies. See Aquilar–Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th
Cir. 2007). Accordingly, to the extent plaintiff attempts to bring claims arising out of the alleged assaults,
those claims are subject to dismissal as time-barred and for failure to exhaust available administrative
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It is not clear from the complaint and attached grievances whether plaintiff is attempting to state affirmative claims
involving the alleged assaults, or whether plaintiff includes the information about the assaults to bolster what
appears to be his primary argument not to be housed at Lansing, Hutchinson, or El Dorado.

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remedies before filing this action.
Additionally, with regard to his housing assignment request, plaintiff fails to state a constitutional
claim because prisoners have no constitutional right to choose their housing assignment – either in any
particular prison or portion of a prison. See Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000).
Moreover, since the inception of this lawsuit, plaintiff has notified this court of his transfer to Norton
Correctional Facility, which appears to moot this issue. Accordingly, plaintiff’s claims regarding his
housing assignment are also subject to dismissal.
PENDING MOTIONS
Also pending before the court are plaintiff’s motion to file under seal and gag order all defendants
(Doc. 2), motion for preliminary injunction (Doc. 4), motion to appoint counsel (Doc. 9), and two
emergency motions requesting a ruling on plaintiff’s motion for preliminary injunction (Doc. 11) and a
telephone hearing on his motion (Doc. 12).
In support of his motion to seal this case and place a gag order on all defendants, plaintiff
conclusorily alleges that correctional facility staff commonly engage in unspecified “inappropriate and
often illegal acts” and often disseminate critical information causing unspecified “serious injuries and
risks” to other inmates and staff. Plaintiff alleges that he fears for his personal safety if staff are permitted
disclose information about the suit to other staff or inmates. It is within the court’s discretion whether, or
the extent to which, judicial records and other case-related information should be sealed or otherwise
withheld from the public. Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007) (internal quotations
omitted). The longstanding common-law right of access to judicial records can be limited only if
“countervailing interests heavily outweigh the public interest in access.” Id. The party seeking to limit
access bears the burden to show a significant interest that outweighs the presumption of access. Id. In this
case, plaintiff seeks not to shield specific sensitive information, but rather to hide the existence of his case
from public view. The court finds plaintiff’s vague concerns about possible retaliation insufficient,
however, to outweigh the presumption of access. The motion to seal is therefore denied.

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Additionally, the court denies plaintiff’s motions for preliminary injunction, appointment of
counsel, and emergency motions. There is no constitutional right to appointment of counsel in a civil
action. Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989); Carper v. Deland, 54 F.3d 613, 616 (10th
Cir. 1995). The decision whether to appoint counsel in a civil matter lies in the discretion of the district
court. Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991). The burden is on the applicant to convince
the court that there is sufficient merit to his claim to warrant appointment of counsel. Steffey v. Orman,
461 F.3d 1218, 1223 (10th Cir. 2006) (citing Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115
(10th Cir. 2004)). The court has considered the potential merit of plaintiff’s claims along with other
pertinent factors, and finds that appointment of counsel is not warranted at this time.
With respect to plaintiff’s requests for a preliminary injunction and telephone hearing, plaintiff
alleges that he believes he will be transferred to another facility soon and seeks an injunction that prevents
defendants from transferring him to the correctional facilities in Lansing or Hutchinson or keeping him at
El Dorado, and which requires defendants to transfer plaintiff to a safer facility. To obtain a preliminary
injunction, the movant must show: (1) a substantial likelihood of success on the merits; (2) irreparable
harm to the movant if the injunction is denied; (3) the threatened injury outweighs the harm that the
preliminary injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely
affect the public interest. Schrier v. University of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005); Kikumura
v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001). “Because a preliminary injunction is an extraordinary
remedy, the right to relief must be clear and unequivocal.” Greater Yellowstone Coalition v. Flowers,
321 F.3d 1250, 1256 (10th Cir. 2003). And, the Tenth Circuit disfavors preliminary injunctions (such as
this) which (1) alter the status quo, (2) are mandatory as opposed to prohibitory, or (3) afford the movant
substantially all the relief he may receive at the conclusion of a full trial on the merits. O Cento Espirita
Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 977 (10th Cir. 2004) (citing SCFC ILC, Inc. v.
Visa USA, Inc., 936 F.2d 1097, 1098 (10th Cir. 1991)); see also Fundamentalist Church of Jesus Christ of
Latter-Day Saints v. Horne, 698 F.3d 1295, 1301 (10th Cir. 2012). As such, a movant who seeks a
disfavored preliminary injunction must demonstrate that “on balance, the four factors weigh heavily and
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compellingly in his favor.” O Cento Espirita, 389 F.3d at 977. For reasons already stated, the court finds
that plaintiff has not shown a likelihood of success on the merits. Moreover, plaintiff is not entitled to a
hearing because he has not alleged sufficient facts to support either the granting of a preliminary
injunction or the finding of a federal constitutional violation.
Accordingly, plaintiff’s motions to file under seal and gag order all defendants (Doc. 2), for
preliminary injunction (Doc. 4), to appoint counsel (Doc. 9), and requesting a telephone hearing on his
motion (Doc. 12) are denied. Plaintiff’s motion requesting a ruling on the motion for preliminary
injunction (Doc. 11) is denied as moot.
For the reasons stated herein, it appears that this action is subject to dismissal in its entirety as
frivolous and for failure to state a claim. Plaintiff is therefore required to show good cause why his
complaint should not be dismissed for the reasons stated herein. Plaintiff is also given the opportunity to
file a complete and proper Amended Complaint upon court-approved forms that cures all the deficiencies
discussed herein. If he does not file an Amended Complaint within the prescribed time that cures all the
deficiencies discussed herein, this matter will be decided based upon the current deficient complaint.
IT IS THEREFORE ORDERED BY THE COURT that plaintiff is granted until November
26, 2017, to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge,
why plaintiff’s complaint should not be dismissed for the reasons stated herein.
IT IS FURTHER ORDERED that until November 26, 2017, plaintiff may file a complete and
proper Amended Complaint to cure all the deficiencies discussed herein.
IT IS FURTHER ORDERED that plaintiff’s motions to file under seal and gag order all
defendants (Doc. 2), for preliminary injunction (Doc. 4), to appoint counsel (Doc. 9), requesting a ruling
on the motion for preliminary injunction (Doc. 11), and requesting a telephone hearing on his motion
(Doc. 12) are denied.
The clerk is directed unseal the case and to send forms and instructions to plaintiff.
IT IS SO ORDERED.
Dated this 27nd day of October, 2017, at Topeka, Kansas.
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s/Sam A. Crow
U. S. Senior District Judge

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