Kinard v. English

Filing 16

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted until January 18, 2019, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why Plaintiff's Complaint 8 should not be dismissed. Signed by U.S. Senior District Judge Sam A. Crow on 12/18/18. Mailed to pro se party Daniel W. Kinard by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DANIEL W. KINARD,
Plaintiff,
v.

CASE NO. 18-3082-SAC

NICOLE ENGLISH, Warden,
USP-Leavenworth, et al.,
Defendants.
MEMORANDUM AND ORDER
AND ORDER TO SHOW CAUSE
Plaintiff Daniel W. Kinard 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 (Doc. 8) that are discussed herein.
I. Nature of the Matter before the Court
Petitioner filed this pro se civil rights action while in federal custody at USPLeavenworth in Leavenworth, Kansas.

Plaintiff challenges the warden’s compliance with

Federal Bureau of Prison’s (“BOP”) policies in failing to remove three points from his custody
classification for “History of Escape.”
Plaintiff was arrested on July 23, 1989, in Washington D.C. Plaintiff is alleged to have
escaped from a CCA van on July 24, 1999. In 2002, Plaintiff was transferred to BOP custody.
In 2006 the BOP changed their custody procedures and stopped holding Plaintiff responsible for
the alleged escape because he was not given a state disciplinary proceeding regarding the escape.
Plaintiff alleges that the procedures are no longer being followed, and that the BOP refuses to
correct the warden’s failure to follow BOP procedures in Program Statement 5100.08 regarding
custody classification. Plaintiff seeks injunctive relief and compensatory damages.

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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
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

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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
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
The Due Process Clause protects against “deprivations of life, liberty, or property; and
those who seek to invoke its procedural protection must establish that one of these interests is at

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stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). “A liberty interest may arise from the
Constitution itself, by reason of guarantees implicit in the word ‘liberty,’ . . . or it may arise from
an expectation or interest created by state laws or policies.” Id. (citing Vitek v. Jones, 445 U.S.
480, 493–94 (1980) (liberty interest in avoiding involuntary psychiatric treatment and transfer to
mental institution); Wolff v. McDonnell, 418 U.S. 539, 556–58 (1974) (liberty interest in
avoiding withdrawal of state-created system of good-time credits)).
Liberty interests which are protected by the Due Process Clause are “generally limited to
freedom from restraint which, while not exceeding the sentence in such an unexpected manner as
to give rise to protection by the Due Process Clause of its own force . . . nonetheless imposes
atypical and significant hardship on the inmate in relation to the ordinary incidents of prison
life.” Sandin v. Conner, 515 U.S. 472, 484 (1995) (internal citations omitted). Plaintiff does not
have a constitutional right to a particular security classification or to be housed in a particular
yard. Mecahum v. Fano, 427 U.S. 215, 224 (1976); Harbin-Bey v. Rutter, 420 F.3d 571, 577
(6th Cir. 2005) (increase in security classification does not constitute an atypical and significant
hardship because “a prisoner has no constitutional right to remain incarcerated in a particular
prison or to be held in a specific security classification”)).
The Supreme Court has held that “the Constitution itself does not give rise to a liberty
interest in avoiding transfer to more adverse conditions of confinement.” Wilkinson, 545 U.S. at
221–22 (citing Meachum v. Fano, 427 U.S. 215, 225 (1976) (no liberty interest arising from Due
Process Clause itself in transfer from low-to maximum-security prison because “[c]onfinement
in any of the State’s institutions is within the normal limits or range of custody which the
conviction has authorized the State to impose”).

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“Changing an inmate’s prison classification . . . ordinarily does not deprive him of
liberty, because he is not entitled to a particular degree of liberty in prison.” Sawyer v. Jefferies,
315 F. App’x 31, 34 (10th Cir. 2008) (citing Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir.
1994) (citing Meachum v. Fano, 427 U.S. 215, 225 (1976))). Plaintiff has not alleged that his
assignment imposed any atypical and significant hardship in relation to the ordinary incidents of
prison life. Cf. Wilkinson, 545 U.S. at 223–24 (finding atypical and significant hardship in
assignment to supermax facility where all human contact prohibited, conversation not permitted,
lights on 24-hours-a-day, exercise allowed for only one hour per day in small indoor room,
indefinite placement with annual review, and disqualification of otherwise eligible inmate for
parole consideration).
Furthermore, “prison regulations are meant to guide correctional officials, not to confer
rights on inmates.” Farrakhan-Muhammad v. Oliver, 677 F. App’x 478, 2017 WL 460982, at *1
(10th Cir. Feb. 3, 2017) (unpublished) (citing Sandin v. Conner, 515 U.S. 472, 481–82 (1995));
Cooper v. Jones, 372 F. App’x 870, 872 (10th Cir. 2010) (unpublished) (“The process due here
is measured by the Due Process Clause of the United States Constitution, not the internal policies
of the prison.”). Therefore, a failure to strictly follow administrative regulations “does not
equate to a constitutional violation.” Hovater v. Robinson, 1 F.3d 1063, 1068 n. 4 (10th Cir.
1993) (citing Davis v. Scherer, 486 U.S. 183, 194 (1984)). Plaintiff’s claim regarding his
security classification is subject to dismissal for failure to state a claim.
IV. Response Required
For the reasons stated herein, it appears that this action is subject to dismissal in its
entirety for failure to state a claim. Plaintiff is therefore required to show good cause why his
Complaint (Doc. 8) should not be dismissed for the reasons stated herein.

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IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is granted until
January 18, 2019, in which to show good cause, in writing, to the Honorable Sam A. Crow,
United States District Judge, why Plaintiff’s Complaint (Doc. 8) should not be dismissed for the
reasons stated herein.
IT IS SO ORDERED.
Dated in Topeka, Kansas, on this 18th day of December, 2018.
S/ Sam A. Crow
SAM A. CROW
SENIOR U. S. DISTRICT JUDGE

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