Wiggins (ID 44076) v. Sisco et al

Filing 10

NOTICE AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted to and including October 10, 2017, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why Counts I, II, III, and IV of Plaintiff's co mplaint should not be dismissed. The Clerk of the Court shall prepare waiver of service forms for Defendants Cline, Schnurr, and Langford, pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. The Clerk of the Court shall enter the Kansas Department of Corrections as an interested party on the docket for the limited purpose of preparing the Martinez report. Upon the filing of that report, the KDOC may move for termination from this action. Signed by Magistrate Judge David J. Waxse on 09/08/17. Mailed to pro se party Johnny Clint Wiggins by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JOHNNY CLINT WIGGINS,
Plaintiff,
v.

CASE NO.17-3080-SAC-DJW

D. SISCO, et al.,
Defendants.

NOTICE AND ORDER TO SHOW CAUSE
AND REQUIRING MARTINEZ REPORT AS TO COUNT V
Plaintiff Johnny Clint Wiggins, a state prisoner appearing
pro se, brings this 42 U.S.C. § 1983 civil rights complaint.
For the reasons discussed below, Plaintiff is ordered to show
cause to the Honorable Sam A. Crow why Counts I, II, III, and IV
of his complaint should not be dismissed.

As for Count V, the

Court finds it needs additional information and therefore orders
a Martinez report as to the claims made in that count only.
I.

Nature of the Matter before the Court
Plaintiff’s complaint (Doc. #1) contains five (5) counts

based

on

the

following

allegations.

In

October

of

2015,

Plaintiff was housed in the medium security unit at Lansing
Correctional Facility (“LCF”) and was working a minimum wage job
when another inmate, Mr. Easley, claimed he and Mr. Wiggins had
1

been using methamphetamines for the previous couple of weeks.
Mr. Easley also claimed Plaintiff gave him meth in exchange for
sexual favors.

Plaintiff was moved to the maximum security unit

at LCF on October 26, 2015, and placed on segregation pending
investigation status upon the order of Defendant Andrew Lucht, a
captain at LCF.
On October 27, 2015, Plaintiff met with Defendants Sisco
and

Bailey,

EAI

special

agents

at

LCF.

The

interview

audiotaped, and Plaintiff agreed to give a statement.
all of Mr. Easley’s allegations.

was

He denied

Plaintiff offered to provide a

urine sample, but no sample was taken.

Defendants Sisco and

Bailey checked Plaintiff for needle tracks and found none.

They

told Plaintiff that DNA had been found on Mr. Easley and that
Plaintiff would have to be held in segregation until the DNA
test results were returned.
Plaintiff remained in segregation on pending investigation
status until November 24, 2015, when a Segregation Review Board
hearing was held.
the hearing.

Plaintiff was not allowed to be present at

On November 25, 2015, Plaintiff was informed that

the Board had changed his status to Other Security Risk (“OSR”),
and he was to be transferred to Hutchinson Correctional Facility
(“HCF”) per the request of Defendants Sisco and Bailey.
On

December

1,

2015,

Plaintiff’s

transfer

to

HCF

was

cancelled by Warden Pryor on the grounds that there had been no
2

Disciplinary Report filed against Plaintiff and therefore there
was no proof he had committed an infraction.
allegedly

in

retaliation

for

Plaintiff

Two days later,

getting

his

transfer

stopped, Defendant Sisco issued a Disciplinary Report charging
Plaintiff with sexual activity in violation of KAR 44-12-1314.
This report was filed out of time per Kansas regulations.

A

disciplinary hearing was scheduled for December 29, 2015.
Prior

to

the

hearing,

Plaintiff

filed

a

request

for

witnesses, a motion for appointment of limited staff assistance,
and

a

request

for

information

on

PREA

Standard

115.787.

Plaintiff met with Defendant Wildermuth the day of the hearing
and was lead to believe he would be attending.
hearing was held without Plaintiff.
as his “proxy.”

However, the

Defendant Wildermuth acted

Plaintiff was found guilty of the charge of

sexual activity and was again scheduled for transfer to HCF.
On January 13, 2016, Plaintiff was transferred to HCF and
placed in segregation on OSR status.

A Segregation Review Board

hearing held on January 26, 2016, found no justifiable reason
for

continued

segregation,

and

Plaintiff

was

moved

to

the

general population.
Plaintiff complains that the cells at HCF are 5’ by 9’ with
approximately

15

confined

22.5

for

square
hours

feet

of

per

open

day.

floor
The

space.
cells

have

He

is

poor

ventilation, poor heating and cooling, and there is gray dust
3

everywhere.

As a result of these conditions, Plaintiff alleges

he

from

suffers

coughing,

and

contributes

constant

the

to

sinus

inability

to

exercise

and

bone,

back

pain

headaches,
in

sneezing,
his

muscle,

cell,
and

and
which

mental

degeneration.
Plaintiff further complains that his sister sent him a copy
of a book he wrote, which was confiscated upon receipt in the
mailroom

of

HCF

on

April

12,

2016.

Plaintiff

received

a

censorship notice stating the book was confiscated because it
contained

“information

groups.”

Doc. 1, p. 11.

pages or content.

on

staff,

weapons

and

security

threat

The notice did not identify specific

Plaintiff followed the directions on the

censorship notice and appealed.

He did not receive a response

to his appeal and has never received the book.
As Count I of his complaint, Plaintiff claims Defendants
Sisco, Bailey, and Lucht violated his Fourteenth Amendment due
process rights by failing to collect and test his urine to be
used

in

Plaintiff’s

process.

defense

during

the

disciplinary

hearing

As Count II, Plaintiff claims Defendant Hunt violated

his Fourteenth Amendment due process rights by failing to allow
Plaintiff to be present at his disciplinary hearing, to present
evidence, to testify, to call witnesses, and to cross examine
witnesses.

He claims that Defendant Sisco violated his rights

by filing a disciplinary report out of time, and that Defendants
4

Pryor and Goddard violated his due process rights by simply
rubber-stamping

Defendant

Hunt’s

decision.

As

Count

III,

Plaintiff claims Defendants Sisco, Bailey, Wildermuth, and Hunt
violated

his

Fourteenth

Amendment

due

process

rights

by

conspiring to manufacture a bogus disciplinary report for the
sole purpose of getting Plaintiff transferred from LCF to HCF.
As Count IV, Plaintiff claims Defendants Goddard, Cline, and
Schnurr violated his Eighth Amendment rights by subjecting him
to the conditions at HCF.
Defendants
Fifth,

Cline,

and

Finally, as Count V, Plaintiff claims

Schnurr,

Fourteenth

and

Langford

Amendment

confiscating Plaintiff’s book.

violated

rights

by

his

First,

censoring

and

Plaintiff’s request for relief

includes declaratory relief, compensatory damages, and punitive
damages.
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 employee of such entity to determine whether summary
dismissal is appropriate.

28 U.S.C. § 1915A(a).

Additionally,

with any litigant, such as Plaintiff, who is proceeding in forma
pauperis,

the

Court

has

determine its sufficiency.

a

duty

to

screen

the

complaint

See 28 U.S.C. § 1915(e)(2).

to

Upon

completion of this screening, the Court must dismiss any claim
that is frivolous or malicious, fails to state a claim upon
5

which relief may be granted, or seeks monetary damages from a
defendant

who

is

immune

from

such

relief.

28

U.S.C.

§§

1915A(b), 1915(e)(2)(B).
To survive this review, the plaintiff must plead “enough
facts to state a claim to relief that is plausible on its face.”
Bell

Atl.

Corp.

v.

Twombly,

550

U.S.

544,

570

(2007).

In

applying the Twombly standard, the Court must assume the truth
of all well-pleaded factual allegations in the complaint and
construe them in the light most favorable to the plaintiff.

See

Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th
Cir. 2011).
While

a

pro

se

plaintiff’s

complaint

must

be

liberally

construed, Erickson v. Pardus, 551 U.S. 89, 94 (2007), pro se
status does not relieve the plaintiff of “the burden of alleging
sufficient facts on which a recognized legal claim could be
based.”
The

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

Court

need

pleaded facts.”
(10th Cir. 1990).

not

accept

“mere

conclusions

characterizing

Bryson v. City of Edmond, 905 F.2d 1386, 1390
“[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

will

not

do.”

(internal quotation marks omitted).

6

Twombly,

550

U.S.

at

555

“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); Northington v. Jackson, 973 F.2d
1518, 1523 (10th Cir. 1992).

In addressing a claim brought

under § 1983, the analysis begins by identifying the specific
constitutional right allegedly infringed.
U.S. 386, 393-94 (1989).

Graham v. Connor, 490

The validity of the claim then must

be judged by reference to the specific constitutional standard
which governs that right. Id.
III.

Discussion
A. Count I: Failure to Collect Evidence
Plaintiff alleges in Count I that Defendants Sisco, Bailey,

and Lucht violated his Fourteenth Amendment due process rights
by failing to collect, test, and preserve urine sample evidence
from Plaintiff and Mr. Easley.

Plaintiff claims the defendants

had a duty under IMPP 10-103, K.S.A. 75-5210, K.S.A. 75-5251,
and K.A.R. 44-13-404(d)(1) to collect and preserve all physical
evidence that could be used to prove or disprove the allegations
made by Mr. Easley.

Plaintiff alleges the defendants did not

collect the evidence because they concluded a urinalysis would
be

negative

for

meth

and

thus

innocence.
7

support

Plaintiff’s

claim

of

“The Fourteenth Amendment prohibits states from depriving
citizens of liberty without due process of law.”
Jones, 430 F.3d 1113, 1117 (10th Cir. 2005).
applies

to

prison

inmates,

but

Wilson v.

This guarantee

“[p]rison

disciplinary

proceedings are not part of a criminal prosecution, and the full
panoply of rights due a defendant in such proceedings does not
apply.”

Wolff v. McDonnell, 418 U.S. 539, 556 (1974).

The

Supreme Court has established that protected liberty interests
are

at

issue

subjected

to

in

the

(1)

prison

setting

conditions

that

only

when

“impose[

]

an

inmate

atypical

is
and

significant hardship on the inmate in relation to the ordinary
incidents

of

prison

life”

or

(2)

disciplinary

actions

“inevitably affect the duration of his sentence.”

that

Sandin v.

Conner, 515 U.S. 472, 484, 487 (1995).
The

failure

connection

with

to

investigate

a

prison

alleged

disciplinary

by

Plaintiff

proceeding.

was

in

That

disciplinary proceeding resulted in a reduction in Plaintiff’s
security classification (with the effect that he lost his prison
job), transfer to HCF, and placement in segregation for total of
approximately three months.

None of these sanctions implicates

a liberty interest; they did not “inevitably affect the duration
of his sentence,” such as where there has been a loss of good
time credits, nor “impose[ ] atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison
8

life.”

Sandin, 515 U.S. at 484, 487.

See Gee v. Pacheco, 627

F.3d 1178, 1193 (10th Cir. 2010) (noting inmate had no liberty
interest

in

Sandin,

515

discretionary
U.S.

at

486

security
(finding

classification
30

days

of

decisions);
disciplinary

segregation did not present the type of atypical, significant
deprivation in which a state might conceivably create a liberty
interest); Estate of DiMarco v. Wyo. Dept. of Corr., 473 F.3d
1334, 1344 (10th Cir. 2007) (finding placement in administrative
segregation for 14 months did not implicate liberty interest);
Marshall v. Morton,

421 F. App’x. 832, 838 (10th Cir.

2011)

(noting loss of privileges associated with reduction of security
classification did not implicate liberty interest); Penrod v.
Zavaras, 94 F.3d 1399, 1407 (10th Cir. 1996) (holding inmate has
no protected liberty interest in prison employment); Meachum v.
Fano, 427 U.S. 215, 229 (1976) (finding no liberty interest in
prisoners to be free from intrastate prison transfers).
Moreover,

Plaintiff’s

complaint

that

the

defendants

violated state regulations and prison procedures does not state
a cause of action under § 1983.

See Trujillo v. Williams, 465

F.3d 1210, 1214 n.2 (10th Cir. 2006) (to extent plaintiff “seeks
relief for alleged violations of state statutes . . . he has
stated no cognizable claim under § 1983, which establishes a
cause of action only for deprivation of rights secured by the
Constitution

or

federal

law”);
9

Cardoso

v.

Calbone,

490

F.3d

1194, 1197 (10th Cir. 2007), quoting Stanko v. Maher, 419 F.3d
1107, 1117 (10th Cir. 2005)(“An action under § 1983, however,
cannot be maintained on the basis of alleged violations of state
law.”).
Because no liberty interest was implicated in connection
with the disciplinary proceeding and conviction, Plaintiff was
not entitled to Fourteenth Amendment due process protections.
Count I is subject to dismissal.
B. Count II: Defects with Disciplinary Hearing Process
In Count II, Plaintiff alleges various procedural defects
with the disciplinary hearing conducted at LCF on December 29,
2015.

Plaintiff claims Defendant Hunt, LCF disciplinary hearing

officer, violated his Fourteenth Amendment due process rights
and several Kansas regulations and KDOC procedures by failing to
allow Plaintiff to be present at his disciplinary hearing, to
present evidence, to testify, to call witnesses, and to crossexamine

witnesses.

He

claims

that

Defendant

Sisco

violated

Kansas law by filing the disciplinary report out of time, and
that Defendants Pryor (Warden of LCF) and Goddard (Secretary of
the Kansas Department of Corrections (KDOC)) violated his due
process

rights

by

simply

rubber-stamping

Defendant

Hunt’s

decision.
Under the same analysis applied above, Count II is also
subject to dismissal because Plaintiff has not stated a claim
10

for a constitutional violation.

No protected liberty interest

entitling Plaintiff to due process was implicated.

The fact

that Defendants may have violated state regulations does not
raise Plaintiff’s complaint to the level of a constitutional
violation.

Prison

disciplinary

procedures

do

not

create

constitutionally protected liberty interests. Crowder v. True,
74 F.3d 812, 814-15 (7th Cir. 1996)(citing Sandin, 515 U.S. at
484).

Plaintiff

enforcement
designed

of

to

has

prison

ensure

no

liberty

interest

regulations.

the

safe

in

“Prison

and

secure

the

proper

regulations

are

administration

of

prisons, not to confer rights, and they create liberty interests
only when they protect inmates from ‘atypical or significant
hardship ... in relation to the ordinary incidents of prison
life.’”

Mendoza v. Tamez, 451 F. App'x 715, 717–18 (10th Cir.

2011), quoting Sandin, 515 U.S. at 484.
disciplinary

action

here

was

an

Where the result of the

additional

two

weeks

in

segregation, transfer to another facility, and a reduction in
security

classification,

the

late

issuance

of

a

disciplinary

report, the “rubber-stamping” of the hearing officer’s decision,
and

the

witnesses

failure
at

the

to

allow

Plaintiff

disciplinary

hearing

“atypical or significant hardship.”

11

to

be
do

present
not

or

call

represent

an

C. Count III: False Disciplinary Report
In

Count

III,

Plaintiff

claims

that

Defendants

Sisco,

Bailey, Wildermuth, and Hunt violated his Fourteenth Amendment
due process rights by conspiring to influence Defendant Hunt’s
decision and to manufacture a bogus disciplinary report for the
sole purpose of getting Plaintiff transferred from LCF to HCF.
Mr. Wiggins has not alleged “specific facts showing an agreement
and concerted action amongst the defendants.”
Kan.

Bd.

of

Regents,

159

F.3d

504,

533

See Tonkovich v.
(10th

Cir.

1998).

Consequently, his conclusory and unsubstantiated allegations of
a conspiracy are insufficient to state a § 1983 claim.

See id.;

see also Cardoso, 490 F.3d at 199.
Further, as discussed above, a due process violation occurs
in the context of prison discipline only when the punishment
imposes an atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life or when it
will inevitably affect the duration of a sentence.
515 U.S. at 484, 487.

See Sandin,

As the Court concluded above, Plaintiff’s

allegations show that the alleged false disciplinary charge did
not cause him to suffer an atypical and significant hardship in
relation to the ordinary incidents of prison life.
Reading

Plaintiff’s

complaint

liberally,

claiming retaliation under the First Amendment.

he

could

be

An improper

motive for disciplining a prisoner may give rise to a cause of
12

action under

§

1983.

Maschner,

899

claiming

retaliation

retaliation

F.2d

See

940,

Gee, 627 F.3d

must

because

of

constitutional rights.”

(10th

947

Cir.

allege

the

at

1189;

1990).

specific

exercise

of

Smith v.

“An

inmate

facts
the

showing

prisoner's

Peterson v. Shanks, 149 F.3d 1140, 1144

(10th Cir. 1998)(quotation omitted).

A plaintiff must show that

but for the retaliatory motive, the incidents to which he refers
would not have taken place.
Plaintiff’s

only

Id.

references

to

a

potential

retaliatory

motive on the part of any defendant are that Defendant Sisco
issued

the

[Plaintiff]

late

disciplinary

for

being

able

report
to

get

“in

retaliation

the

requested

against
transfer

stopped” initially (Doc. 1, p. 7), and that Defendant Wildermuth
“was the subject of several grievances filed against her by the
plaintiff on unrelated incidents” (Doc. 1, p. 21).

Plaintiff

claims Defendants Sisco and Bailey were the driving force behind
his discipline and transfer, but he provides no motive for why
Defendants Sisco and Bailey would have wanted him transferred to
HCF in the first place.

As for Defendant Wildermuth, Plaintiff

does not allege that she caused his discipline and transfer, and
his complaint contains nothing about when his grievances against
her occurred, the result of the grievances, or why Defendant
Wildermuth

would

be

previous grievances.

retaliating

against

him

now

for

these

If Plaintiff was attempting to make a
13

claim for retaliation, he has failed to state a plausible claim.
Count III of Plaintiff’s complaint is subject to dismissal.
D.

Count IV: Conditions at HCF

Plaintiff alleges that the conditions at HCF violate the
Eighth Amendment to the United States Constitution.
Amendment

prohibits

punishment.
violate

the

infliction

of

“cruel

See U.S. Const. amend. VIII.

the

Eighth

disproportionate

Amendment

to

the

where

severity

and

unusual”

Prison conditions may

they:

of

The Eighth

the

1)

are

crime

grossly

warranting

punishment; 2) involve the wanton and unnecessary infliction of
pain; or 3) deprive an inmate of the minimal civilized measure
of life's necessities.
346-47 (1981).

See Rhodes v. Chapman, 452 U.S. 337,

Under the Eighth Amendment, prisons are required

“to provide humane conditions of confinement by ensuring inmates
receive

the

basic

necessities

of

adequate

food,

clothing,

shelter, and medical care and by taking reasonable measures to
guarantee the inmates' safety.”

Barney v. Pulsipher, 143 F.3d

1299, 1310 (10th Cir. 1998); see also Tafoya v. Salazar, 516 F.3d
912, 916 (10th Cir. 2008).
“An

inmate

constitutionally

making
inadequate

an

Eighth

Amendment

conditions

of

claim

confinement

for
must

allege and prove an objective component and subjective component
associated with the deficiency” claimed.
F.3d

1164,

1168

(10th

Cir.

2001).
14

Shannon v. Graves, 257

“The

objective

component

requires

conditions

inmates

of

necessities.’”
prisoner

must

uncomfortable.”

sufficiently

the

minimal

Id.

(quoting

show

serious

civilized
Rhodes,

that

so

as

to

measure

452

U.S.

“conditions

‘deprive

of
at

were

life's

347).
more

A
than

Despain v. Uphoff, 264 F.3d 965, 973 (10th Cir.

2001) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)).

The

Eighth Amendment's prohibition on cruel and unusual punishment
“‘does not mandate comfortable prisons,’ and conditions imposed
may be ‘restrictive and even harsh.’”

Barney, 143 F.3d at 1311

(quoting Rhodes, 452 U.S. at 347). Alternatively, a condition
must be sufficiently serious so as to constitute a substantial
risk of serious harm.

Helling v. McKinney, 509 U.S. 25, 33–35

(1993).
Plaintiff complains of a list of conditions he endures at
HCF.

Starting from the position that “restrictive and even

harsh”

conditions

Plaintiff

has

the

are

not

burden

of

unconstitutional,
alleging

see

conditions

Rhodes,

sufficiently

serious so as to deprive him of the minimal civilized measure of
life's necessities or to subject him to a substantial risk of
serious harm.

Plaintiff has not met this burden.

Plaintiff

alleges that he is housed in a 5’ by 9’ cell, he is in his cell
without enough space for in-cell exercise 22.5 hours a day, he
is subjected to “extremely” hot and cold conditions, and there
is

poor

ventilation

and

gray

dust
15

covering

everything.

He

claims the poor ventilation has resulted in harm he describes as
“coughing and respiratory problems, stopped up sinuses, sinus
headaches on a daily basis” and the lack of exercise has caused
“severe back pain, physical muscle degeneration, weight loss due
to loss of appetite.”

Doc. 1, p. 24.

These conditions do not constitute the types of conditions
that

violate

required.”
Strope

the

Eighth

Amendment;

“extreme

deprivations

Hudson v. McMillian, 503 U.S. 1, 9 (1992).

v.

Sebelius,

189

F.

App'x

763,

766

(10th

Cir.

are
See

2006)

(finding plaintiff’s allegation of inadequate ventilation at HCF
does not state a claim for violation of 8th Amendment); Martin v.
Luebbers, No. 4:07-CV-1565-JCH, 2007 WL 3352354, at *2 (E.D. Mo.
Nov. 7, 2007) (finding claims of inhalation of dust mites, dust,
and

lint

particles

fail

to

state

a

claim

and

are

legally

frivolous); Hunnewell v. Warden, Maine State Prison, 19 F.3d 7,
at

*3

(1st

Cir.

1994)(Table)(finding

complaint

of

inadequate

ventilation does not allege deprivation sufficiently extreme to
establish

a

cognizable

Eighth

Amendment

claim);

Johnson

v.

Gusman, No. CV 15-4224, 2016 WL 3199085, at *4 (E.D. La. May 6,
2016), report and recommendation adopted, No. CV 15-4224, 2016
WL 3186506 (E.D. La. June 8, 2016) (finding federal courts have
recognized
mold,

and

that

certain

stale

air

institutional
do

not

problems

amount

to

a

such

as

dust,

constitutional

violation); Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir.
16

1999) (holding that an inmate failed to state a claim under the
Eighth

Amendment

since

his

complaints

of

breathing

problems,

chest pains, dizziness, sinus problems, headaches, and fatigue
were

“objectively

speaking,

relatively

minor”);

King

v.

Berghuis, 2010 WL 565373, at *3 (W.D. Mich. 2010) (“[A]bsent
such

extreme

health,

the

concerning
Amendment

conditions
courts

routinely

ventilation
claim.”);

raising

were

Rhodes,

serious

have

risks

determined

insufficient

to

452

352

U.S.

at

to

prisoner

that

state

claims

an

Eighth

(finding

double

celling of prisoners in cells of 63 square feet did not violate
Eighth Amendment; decided after Ramos v. Lamm, 639 F.2d 539 (10th
Cir. 1980), where Tenth Circuit relied on standard set in Battle
v. Anderson, 564 F.2d 388 (10th Cir. 1977), of 60 square feet for
single

occupancy

cells);

Dunann

v.

Hickenlooper,

No.

13-CV-

02295-BNB, 2014 WL 26395, at *2 (D. Colo. Jan. 2, 2014) (finding
complaint about size of cell legally frivolous).
Plaintiff has failed to allege that he has been deprived of
any of life’s basic necessities, i.e., adequate food, clothing,
shelter, or medical care.

See Barney, 143 F.3d at 1310.

In the

absence of allegations “of a specific deprivation of a human
need, an Eighth Amendment claim based on prison conditions must
fail.”

Shifrin v. Fields, 39 F.3d 1112, 1114 (10th Cir. 1994)

(internal quotation marks omitted).

Although the conditions Mr.

Wiggins complains about are undoubtedly uncomfortable, the Court
17

concludes his allegations are insufficient to state a claim for
a violation of the Eighth Amendment.
E.

Count V: Censorship and Confiscation of Book

In Count V, Plaintiff claims Defendants Cline, Schnurr, and
Langford
rights

violated
by

his

censoring

First,
and

Fifth,

and

confiscating

Fourteenth
a

book,

Amendment

authored

by

Plaintiff, titled Guilty but Innocent, From a Teen to a Con,
“describing plaintiff’s life, of growing up from the age of 14
years old, in one of America’s most corrupt and violent adult
prisons,

the

Oklahoma.”

Oklahoma

State

Doc. 1, pp. 25-26.

Penitentiary,

at

McAlester,

Plaintiff also complains that

the defendants failed to respond to his appeal of the censorship
or

to

his

inquiries

about

the

censorship

and

apparent

confiscation of the book.
The Court finds that the proper processing of Plaintiff’s
claims

in

Count

V

cannot

be

achieved

without

information from appropriate officials of HCF.
Aaron, 570 F.2d 317 (10th Cir. 1978).

additional

See Martinez v.

Accordingly, the Court

orders the appropriate officials to prepare and file a Martinez
report.

Once

the

report

and

Defendants’

answers

have

been

received, the Court can properly screen the claims in Count V of
the complaint under 28 U.S.C. § 1915.

18

IV.

Response Required
For the reasons stated herein, it appears that Counts I,

II,

III,

and

IV

of

Plaintiff’s

complaint

are

subject

to

dismissal under 28 U.S.C. §§ 1915A(b) for failure to state a
claim upon which relief may be granted.

Plaintiff is therefore

required to show good cause why this portion of his complaint
should not be dismissed.

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. Colo.

Dept. of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999).

Plaintiff

is warned that his failure to file a timely response may result
in Counts I through IV of the complaint being dismissed for the
reasons stated herein without further notice.
IT IS THEREFORE ORDERED that Plaintiff is granted to and
including October 10, 2017, in which to show good cause, in
writing, to the Honorable Sam A. Crow, United States District
Judge, why Counts I, II, III, and IV of Plaintiff’s complaint
should not be dismissed for the reasons stated herein.
IT IS FURTHER ORDERED:
(1)

The Clerk of the Court shall prepare waiver of service

forms for Defendants Cline, Schnurr, and Langford, pursuant to
Rule 4(d) of the Federal Rules of Civil Procedure, to be served

19

at no cost to Plaintiff absent a finding by the Court that
Plaintiff is able to pay such costs.
(2)

The report required herein shall be filed no later

than thirty (30) days from the date of this order, and the
answers

of

Defendants

Cline,

Schnurr,

and

Langford

shall

be

filed within twenty (20) days following receipt of that report
by counsel for Defendants.
(3)

Officials

Hutchinson

responsible

Correction

Facility

for
are

the

operation

directed

to

of

the

undertake

a

review of the subject matter of the complaint:
a.

To ascertain the facts and circumstances;

b.

To consider whether any action can and should be

taken by the institution to resolve the subject matter of
the complaint; and
c.

To

determine

whether

other

like

complaints,

whether pending in this Court or elsewhere, are related to
this complaint and should be considered together.
(4)

Upon completion of the review, a written report shall

be compiled which shall be filed with the Court.
all witnesses shall be in affidavit form.
rules,

regulations,

official

Statements of

Copies of pertinent

documents,

and,

wherever

appropriate, the reports of medical or psychiatric examinations
shall be included in the written report.

In addition, either

the book that was allegedly seized or a copy of the pages that
20

are alleged to violate the facility’s rules shall be included
with the report.
(5)
to

Authorization is granted to the officials of the KDOC

interview

all

witnesses

having

knowledge

of

the

facts,

including the plaintiff.
(6)

No answer or motion addressed to the complaint shall

be filed until the

Martinez

report required herein has been

prepared and filed.
(7)
Plaintiff

Discovery
has

by

received

Plaintiff
and

shall

reviewed

not

commence

Defendants’

until

answers

responses to the complaint and the report ordered herein.

or

This

action is exempted from the requirements imposed under Fed. R.
Civ. P. 26(a) and 26(f).
IT IS FURTHER ORDERED that the Clerk of the Court shall
enter

the

Kansas

Department

of

Corrections

as

an

interested

party on the docket for the limited purpose of preparing the
Martinez report ordered herein.

Upon the filing of that report,

the KDOC may move for termination from this action.
Copies of this order shall be transmitted to Plaintiff, to
Defendants, and to the Attorney General for the State of Kansas.

21

IT IS SO ORDERED.
DATED:

This 8th day of September, 2017, at Kansas City,

Kansas.

DAVID J. WAXSE
U.S. Magistrate Judge

22