Stewart (ID 83316) v. Kansas Department of Corrections et al

Filing 10

MEMORANDUM AND ORDER ENTERED: This action is dismissed and all relief is denied for failure to state a claim for relief. Plaintiff's motion for appointment of counsel 9 is denied. Plaintiff's second application for leave to proceed in forma pauperis 6 is granted. The agency having custody of plaintiff shall forward payments from plaintiff's account in installments calculated under 28 U.S.C. § 1915(b)(2). The clerk is directed to transmit a copy of this order to plaint iff, to the finance office at the institution where plaintiff is currently confined, and to the court's finance office. Plaintiff's first application for leave to proceed in forma pauperis 3 is overruled as moot. Signed by U.S. Senior District Judge Sam A. Crow on 03/07/18. Mailed to pro se party James Stewart, II by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JAMES STEWART, II,
Plaintiff,
v.

CASE NO. 17-3152-SAC

KAREN ARMSTRONG, et al.,
Defendants.

MEMORANDUM AND O R D E R
This pro se civil rights action was filed pursuant to 42 U.S.C. § 1983 by an inmate confined
at the Lansing Correctional Facility (LCF) in Lansing, Kansas. Plaintiff conclusorily alleges that
he has been hurt and extorted multiple times at LCF, is unsafe there, and that as a result, his
continued confinement at LCF amounts to a violation of the Eighth Amendment. On November 8,
2017, the court issued an order assessing an initial partial filing fee and ordering plaintiff to submit
an amended complaint that identifies proper defendants and provides specific allegations as to
each defendant, or risk dismissal for failure to state a claim. (Doc. 7). On November 21, 2017,
plaintiff timely responded and filed an amended complaint, and on November 30, 2017, he paid
the initial partial filing fee. The amended complaint, however, fails to cure the deficiencies
identified in the court’s order, and contains additional problems which require dismissal.
As previously noted, 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 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).
Plaintiff’s complaint (Doc. 5) against the Kansas Department of Corrections failed to name
a proper defendant because it is not a “person” subject to suit under § 1983. As such, the court
directed plaintiff to submit an amended complaint that named proper defendants and provided
specific allegations as to each defendant. In response, plaintiff filed an amended complaint against
three correctional officers (Jillian Landwehr, Karen Armstrong, and Jack Weishar) and one
administrator (Rob Arnold) from LCF. (Doc. 8). In the amended complaint, plaintiff alleges that
though has been injured several times at LCF, he has been sent back there “against his wishes”
and that as such, he was ultimately “forced to flee” the facility; that he has been hurt and extorted,
which he reported to the counselors; and that “he reported all issues on paper and in person to the
above defendants several times to no avail”.
Having considered plaintiff’s allegations, the court finds the complaint is subject to
summary dismissal for several reasons. First, the amended complaint does not comply with the
court’s order that plaintiff identify specific conduct that he attributes to specific individual
defendants and is therefore deficient. Out of an abundance of caution, however, the court has
reviewed the allegations contained in each of plaintiff’s complaints, and similarly finds them
deficient.

Next, the gist of plaintiff’s action is that he does not feel safe at LCF and does not want to
be housed there because he has been “hurt” and “extorted”. He states no constitutional violation,
however, because prisoners have no constitutional right to choose their housing assignment,
however. See Graham v. Stotts, 1993 WL 502 422, at *3 (D. Kan., Nov. 30, 1993) (citing
Meachum v. Fano, 427 U.S. 215 (1976)).
Additionally, the facts alleged in the complaint do not support a claim for deliberate
indifference under the Eighth Amendment. To do so, plaintiff must show both an objective
component – that he was incarcerated under conditions posing a substantial risk of harm, and a
subjective component – that prison officials were deliberately indifferent to his safety. Verdecia
v. Adams, 327 F.3d 1171, 1175 (10th Cir. 2003) (citing Benefield v. McDowall, 241 F.3d 1267,
1271 (10th Cir. 2001). Plaintiff conclusorily alleges he has been “extorted” and has “receipts”, but
he provides no context – he does not say how, why, when, or for what purpose the extortion
purportedly occurred, nor does he identify who purportedly extorted him or how this extortion
posed a substantial risk of harm, much less that each defendant actually knew about any such
substantial risk of harm posed by the extortion. And, though he alleges that other LCF inmates
allegedly attacked him at least twice and that he reported the attacks to various LCF staff members,
to state an Eighth Amendment claim plaintiff must allege more. Negligent failure to protect
inmates from assaults by other inmates is not actionable under the Eighth Amendment, so plaintiff
must allege not only that that each defendant should have known of the risk of harm, but also that
each defendant did, in fact, draw such an inference. Farmer v. Brennan, 511 U.S. 825, 835 (1994);
Smith v. U.S., 561 F.3d 1090, 1104-5 (10th Cir. 2009; see also Verdecia v. Adams, 327 F.3d 1171,
1175-6 (10th Cir. 2003). The record contains no evidence that defendants knew plaintiff’s

incarceration at LCF posed a substantial risk of harm to him. Plaintiff’s complaint must therefore
be dismissed.
Plaintiff has filed a Motion for Appointment of Counsel (Doc. 9). The court has considered
and denies this motion. No constitutional right to appointment of counsel exists in a civil action.
The court has considered the potential merit of plaintiff’s claims along with other pertinent factors,
and finds that plaintiff has not asserted a colorable claim. The court concludes that appointment
of counsel is not warranted.
Also pending before the court are plaintiff’s applications for leave to proceed in forma
pauperis. (Docs. 3 and 6). The court previously calculated an initial partial filing fee of $33.00
under 28 U.S.C. § 1915(b)(1), which plaintiff paid on November 30, 2017. The court therefore
grants plaintiff’s amended application (Doc. 6) and reminds plaintiff of his obligation to pay the
$350.00 filing fee, and directs the agency having custody of plaintiff to forward payments from
plaintiff’s account in installments calculated under 28 U.S.C. § 1915(b)(2). Plaintiff’s initial
application (Doc. 3) is overruled as moot.
IT IS THEREFORE ORDERED that this action is dismissed and all relief is denied for
failure to state a claim for relief.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel (Doc. 9)
is denied.
IT IS FURTHER ORDERED that plaintiff’s second application for leave to proceed in
forma pauperis (Doc. 6) is granted. The agency having custody of plaintiff shall forward payments
from plaintiff's account in installments calculated under 28 U.S.C. § 1915(b)(2). The clerk is
directed to transmit a copy of this order to plaintiff, to the finance office at the institution where
plaintiff is currently confined, and to the court's finance office.

IT IS FURTHER ORDERED that plaintiff’s first application for leave to proceed in
forma pauperis (Doc. 3) is overruled as moot.
IT IS SO ORDERED.
Dated this 7th day of March, 2018, at Topeka, Kansas.

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