McCoy (ID 76894) v. Burris et al

Filing 5

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE ENTERED: Plaintiff's motion requesting issuance of waiver of service and summonses on Defendants 4 is premature and therefore denied. Plaintiff is granted until September 4, 2018, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why Plaintiff's Complaint should not be dismissed. Plaintiff is also granted until September 4, 2018, in which to file a complete and proper amended complaint to cure all the deficiencies. Signed by U.S. Senior District Judge Sam A. Crow on 08/03/18. Mailed to pro se party DeRon McCoy, Jr. by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DERON MCCOY, JR.,
Plaintiff,
v.

CASE NO. 18-3077-SAC

DOUGLAS BURRIS, et al.,
Defendants.

MEMORANDUM AND ORDER
AND ORDER TO SHOW CAUSE
Plaintiff DeRon McCoy, Jr., 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. Plaintiff is also given
an opportunity to file a proper amended complaint to cure the deficiencies.
I. Nature of the Matter before the Court
Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Although
Plaintiff is currently incarcerated at the El Dorado Correctional Facility in El Dorado, Kansas
(“EDCF”), the claims giving rise to his Complaint occurred during his incarceration at the
Hutchinson Correctional Facility in Hutchinson, Kansas (“HCF”).
In his Complaint, Plaintiff alleges that while he was an inmate at HCF his constitutional
rights were violated when Defendants opened his legal mail outside of his presence. Plaintiff
alleges that his legal mail was opened outside of his presence on three occasions. On April 7,
2017, UTS Drinkwater handed Plaintiff legal mail with a notation “opened in error by
storeroom.” When Plaintiff pointed out that his legal mail had been opened, UTS Drinkwater
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stated that he would look into the situation to see what had happened and to make sure it did not
happen again. On April 10, 2017, UTS Drinkwater again delivered legal mail to Plaintiff that
had been opened outside of Plaintiff’s presence and was signed for by Defendant Hamby.
Plaintiff filed a grievance, and on April 20, 2017, received a response from Defendant
Nickels, the UTM of A-cellhouse at HCF, stating that the problem had been addressed.
Unsatisfied with this response, Plaintiff forwarded his grievance to the warden. The warden
responded, stating that the “storeroom staff have been educated in the proper procedure in
handling legal material mistakenly delivered to their location. I am confident this has been
corrected and should not happen again.” Unsatisfied with this response, Plaintiff appealed his
grievance to the KDOC Secretary of Corrections on May 21, 2017. On May 30, 2017, the
Secretary of Corrections’ designee, Defendant Burris, responded stating that “the response
rendered to the inmate by staff at the facility is appropriate.” On July 17, 2017, UTS Drinkwater
again gave Plaintiff legal mail that had been opened and resealed, with a note stating that it was
“received from the storeroom already opened.”
Plaintiff alleges that all three pieces of legal mail were marked “attorney client
communication” in quarter-inch letters, and that Defendants “intentionally, willfully, maliciously
and with reckless and callous indifference violated Plaintiff’s rights by opening and reading the
Plaintiff’s legal correspondence from Plaintiff’s attorney.” Plaintiff also alleges Defendants
Burris, Schnurr, Richard Roe Mailroom Supervisor, and John Doe Storeroom Supervisor, failed
to properly train and supervise Defendants Hamby, Zolam, Keen, Turner, John Doe Mailroom
Worker and John Doe Storeroom Worker in the proper handling of legal mail. Plaintiff also
claims that Defendants Burris, Schnurr, Nickels, Richard Roe Mailroom Supervisor, and John
Doe Storeroom Supervisor, failed to stop the other Defendants from opening and reading

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Plaintiff’s properly-identified legal mail. Plaintiff also alleges that for the three instances when
his legal mail was opened, there was a delay of several days in receiving his legal mail because
Defendants were withholding his mail “in an effort to try and conceal the fact that the Plaintiff’s
legal mail had been opened and read outside of Plaintiff’s presence.”
Plaintiff seeks nominal damages, punitive damages in the amount of $250,000, a
declaratory judgment, and a permanent injunction directing KDOC officials to stop opening and
reading Plaintiff’s legal mail outside of his presence.
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
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

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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 ‘entitle[ment]
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
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

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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
Plaintiff alleges that his legal mail was opened outside of his presence on three occasions
while he was incarcerated at HCF. According to the Kansas Adult Supervised Population
Electronic Repository (“KASPER”), Plaintiff was incarcerated at HCF from approximately
March 22, 2017, to January 29, 2018. Plaintiff does not allege that his legal mail was improperly
opened at HCF after the alleged incident on July 17, 2017.

Although Plaintiff makes a

conclusory statement that Defendants acted “intentionally, willfully, maliciously and with
reckless and callous indifference,” 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 ‘entitle[ment] 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 has held that where prison officials opened one piece of
constitutionally protected mail by accident, “[s]uch an isolated incident, without any evidence of
improper motive or resulting interference with [the inmate’s] right . . . of access to the courts,
does not give rise to a constitutional violation.” Florence v. Booker, 23 F. App’x 970, 972 (10th
Cir. 2001) (citing Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990)). Likewise, this Court

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has held that where a plaintiff has alleged merely two isolated incidents in which jail officials
opened legal mail, plaintiff “must therefore show either an improper motivation by defendants or
denial of access to the courts.” Thompson v. Hooper, No. 05-3470-JWL, 2006 WL 1128692, at
*4 (D. Kan. April 25, 2006) (citing Florence, 23 F. App’x at 972); see also Bagguley v. Barr,
893 F. Supp. 967, 972 (D. Kan. 1995) (“[A]ssuming these three envelopes were opened in
violation of the applicable federal regulations, such conduct, under the circumstances of this
case, does not rise to the level of a constitutional violation.”); Williams v. Armstrong, No. 123136-SAC, 2013 WL 812185, at *4 (D. Kan. March 5, 2013) (claim dismissed where prisoner’s
legal mail was opened on one or more occasions and was explained to him as an error); Elrod v.
Swanson, 478 F. Supp. 2d 1252, 1275 (D. Kan. 2007) (plaintiff could not show injury from
alleged opening of legal mail where plaintiff did not argue interference with communication with
counsel and did not show anything more than an inadvertent mistake by prison officials);
Rashaw-Bey v. Carrizales, No. 09-3075-JAR, 2010 WL 3613953, at *8 (D. Kan. Sept. 3, 2010)
(inadvertent opening of three envelopes with no allegation of deliberate conduct on part of prison
officials insufficient to establish a First Amendment constitutional violation). Because Plaintiff
has not alleged improper motive or interference with access to the courts or counsel, he has
failed to allege a constitutional violation and his claim is subject to dismissal.
Plaintiff filed a motion requesting issuance of waiver of service and summonses on
Defendants. (Doc. 4.) Because Plaintiff’s claims have not survived screening, such a motion is
premature and therefore denied.
IV. Response and/or Amended Complaint Required
Plaintiff is 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

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amended complaint upon court-approved forms that cures all the deficiencies discussed herein.1
Plaintiff is given time to file a complete and proper Amended Complaint in which he (1) shows
he has exhausted administrative remedies for all claims alleged; (2) raises only properly joined
claims and defendants; (3) alleges sufficient facts to state a claim for a federal constitutional
violation and show a cause of action in federal court; and (4) alleges sufficient facts to show
personal participation by each named defendant.
If Plaintiff 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 THAT Plaintiff’s motion requesting issuance of
waiver of service and summonses on Defendants (Doc. 4) is premature and therefore denied.
IT IS FURTHER ORDERED that Plaintiff is granted until September 4, 2018, in
which 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 Plaintiff is also granted until September 4, 2018, in
which to file a complete and proper amended complaint to cure all the deficiencies discussed
herein.
The clerk is directed to send § 1983 forms and instructions to Plaintiff.

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To add claims, significant factual allegations, or change defendants, a plaintiff must submit a complete amended
complaint. See Fed. R. Civ. P. 15. An amended complaint is not simply an addendum to the original complaint, and
instead completely supersedes it. Therefore, any claims or allegations not included in the amended complaint are no
longer before the court. It follows that a plaintiff may not simply refer to an earlier pleading, and the amended
complaint must contain all allegations and claims that a plaintiff intends to pursue in the action, including those to
be retained from the original complaint. Plaintiff must write the number of this case (18-3077-SAC) at the top of the
first page of his amended complaint and he must name every defendant in the caption of the amended complaint.
See Fed. R. Civ. P. 10(a). Plaintiff should also refer to each defendant again in the body of the amended complaint,
where he must allege facts describing the unconstitutional acts taken by each defendant including dates, locations,
and circumstances. Plaintiff must allege sufficient additional facts to show a federal constitutional violation.

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IT IS SO ORDERED.
Dated in Topeka, Kansas, on this 3rd day of August, 2018.

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

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