Thomas v. Soldan et al
NOTICE AND ORDER TO SHOW CAUSE ENTERED: Plaintiff's motion for leave to proceed in forma pauperis 2 is granted. Collection action shall commence under 28 U.S.C. § 1915(b)(2) and shall continue until plaintiff satisfies the $350.00 filing fee. Plaintiff is granted to and including April 6, 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 03/06/18. Mailed to pro se party Darris Colton Thomas, Jr. by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DARRIS COLTON THOMAS, JR.,
CASE NO. 18-3040-SAC
ROGER SOLDAN, et al.,
NOTICE AND ORDER TO SHOW CAUSE
This matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff, a pretrial detainee, proceeds pro se and seeks leave
to proceed in forma pauperis.
The motion to proceed in forma pauperis
This motion is governed by 28 U.S.C. § 1915(b). Because plaintiff
is a prisoner, he must pay the full filing fee in installment payments
taken from his prison trust account when he “brings a civil action
or files an appeal in forma pauperis[.]” § 1915(b)(1). Pursuant to
§ 1915(b)(1), the court must assess, and collect when funds exist,
an initial partial filing fee calculated upon the greater of (1) the
average monthly deposit in his account or (2) the average monthly
balance in the account for the six-month period preceding the filing
of the complaint. Thereafter, the plaintiff must make monthly payments
of twenty percent of the preceding month’s income in his institutional
account. § 1915(b)(2). However, a prisoner shall not be prohibited
from bringing a civil action or appeal because he has no means to pay
the initial partial filing fee. § 1915(b)(4).
Because the financial records show that plaintiff has no
resources in his institutional account, the Court grants plaintiff
leave to proceed in forma pauperis. Plaintiff remains obligated to
pay the $350.00 filing fee in installments, as funds become available.
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 state a claim for relief under Section 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).
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
conceivable to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247
(citing Twombly at 1974).
The complaint identifies as defendants three officers employed
at the Saline County Jail, Sheriff Soldan, Captain Fruits, and
Corporal Hill. Plaintiff claims that on February 9, 2018, unnamed
guards locked his pin and password out of the grievance kiosk for one
hour, and that on the same day, an unnamed pod guard opened his cell
twice, putting him in danger (Doc. #1, p. 2). In Count 1 of the
complaint, he alleges that on January 23, 2018, Corporal Hill advised
him that his grievances were taken due to excessive property in his
cell that created a fire hazard. In Count 2, plaintiff claims that
grievance responses on January 10 and 11, 2018, did not address his
claims properly. In Count 3, he alleges double jeopardy,
self-incrimination, due process violations, and involuntary
servitude. (Doc. #1, pp. 3-4). He seeks damages.
The Court has carefully reviewed the complaint and has identified
First, plaintiff’s claim of limited access to the grievance kiosk
for one hour on one day does not present a claim of constitutional
dimension. This brief restriction did not prevent plaintiff from
pursuing relief, and, in general, a prisoner cannot present a viable
due process claim based upon an unfair or inadequate grievance
procedure. See VonHallcy v. Clements, 519 Fed.Appx. 521, 524 (10th Cir.
2013)(unpublished)(denying relief where prisoner claimed that prison
director violated due process by providing an inadequate grievance
Next, plaintiff’s claim that he was exposed to harm when his cell
was opened on two occasions fails to state a claim for relief. The
Prison Litigation Reform Act (PLRA) state that “[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). Plaintiff does not allege that he suffered any injury due
to the opening of his cell, and he cannot proceed on this claim.
Plaintiff’s claims that grievance materials were removed from
his cell and that he was dissatisfied with the responses to his
grievances do not state a claim for relief. The United States
Constitution guarantees due process when a person is to be deprived
of life, liberty, or property. See Templeman v. Gunter, 16 F.3d 367,
369 (10th Cir. 1994). However, a prison grievance procedure does not
create a protected liberty interest, and there is no constitutional
right to a prison grievance procedure. See Boyd v. Werholtz, 443
Fed.Appx. 331 (10th Cir. 2011)(affirming dismissal of prisoner’s claim
arising from denial of access to grievance procedure) and Walters v.
Corrections Corp. of Amer., 119 Fed.Appx. 190, 191 (10th Cir.
2004)(finding no constitutional violation where prisoner alleged
denial of access to administrative grievance procedure).
Finally, plaintiff’s bare claims of double jeopardy,
self-incrimination, and involuntary servitude do not state a claim
for relief. Plaintiff makes no specific allegations of fact and does
not identify any acts or omissions by a named defendant. Vague and
conclusory assertions of a constitutional violation are insufficient
to state a claim for relief under §1983. See Hall v. Bellmon, 835 F.2d
at 1110 (“[I]n analyzing the sufficiency of the plaintiff’s complaint,
the court need accept as true only the plaintiff’s well-pleaded
factual contentions, not his conclusory allegations.”) Accordingly,
these claims are subject to dismissal.
Order to Show Cause
For the reasons set forth, the Court directs plaintiff 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’s motion for
leave to proceed in forma pauperis (Doc. 2) is granted. Collection
action shall commence under 28 U.S.C. § 1915(b)(2) and shall continue
until plaintiff satisfies the $350.00 filing fee.
IT IS FURTHER ORDERED plaintiff is granted to and including April
6, 2018, to show cause why this matter should not be dismissed for
failure to state a claim for relief.
IT IS SO ORDERED.
This 6th day of March, 2018, at Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
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