Staples v. United States of America et al

Filing 5

NOTICE AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted to and including April 4, 2019, to show cause and to submit an amended complaint. The failure to file a timely response will result in the dismissal of this matter without additional prior notice. Signed by U.S. Senior District Judge Sam A. Crow on 03/04/19. Mailed to pro se party William Staples by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WILLIAM STAPLES,
Plaintiff,
v.

CASE NO. 18-3095-SAC

UNITED STATES OF AMERICA, et al.,
Defendants.

NOTICE AND ORDER TO SHOW CAUSE
This matter is a Bivens-type1 civil rights action filed by a
prisoner in federal custody. Plaintiff proceeds pro se and in forma
pauperis. The Court has conducted a review of the complaint and, for
the reasons that follow, directs plaintiff to show cause why this
matter should not be dismissed.
Background
The complaint names as defendants (1) the United States of
America, (2) Mark Inch, Director of the federal Bureau of Prisons
(BOP), (3) Ian Conners, Administrator of National Inmate Appeals, (4)
the unknown Regional Director of the North Central Region of the BOP,
(5) Claude Maye, the former warden of the United States Penitentiary–
Leavenworth (USPL), (6) the Unit Discipline Committee, (7)
Correctional Officer Butz, and (8) M. Raletz, a member of the USPL
education staff.
Plaintiff alleges that during a July 2015 orientation session
at the USPL he initially refused to sign several forms as directed
but eventually complied to avoid placement in the Special Housing Unit
1

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

(SHU).
He next alleges that in March 2016, defendant Raletz prepared
an incident report charging him with refusing a work assignment. The
matter was referred to the Unit Discipline Committee (UDC), which
eventually found plaintiff guilty and imposed the sanction of the loss
of visitation for 15 days. Plaintiff unsuccessfully appealed the
sanction.
Plaintiff alleges these events violated his First Amendment
right “to not be forced to sign documents”; subjected him to cruel
and unusual punishment; and violated a created liberty interest. He
seeks the expungement of the disciplinary report and damages.
Screening
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 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 Twombly 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
plaintiff

has

not

“nudged

[the]

claims

across

the

line

from

conceivable to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247
(citing Twombly at 1974).

Analysis
Improper defendants
In Bivens, the United States Supreme Court created a remedy for
constitutional violations caused by federal officials. Bivens, 403
U.S. 388. “[A] Bivens claim can be brought only against federal
officials in their individual capacities” and may not be asserted
directly against the United States, federal agencies, or federal
officials acting in their official capacities. Smith v. United States,
561 F.3d 1090, 1099 (10th Cir. 2009)(citing Farmer v. Perrill, 275 F.3d
958, 963 (10th Cir. 2001) and F.D.I.C. v. Meyer, 510 U.S. 471, 485-86
(1994)).
A Bivens claim must rest upon the direct personal participation
of individual defendants in their individual capacities. Menteer v.
Applebee, 196 F. App’x 624, 627 (10th Cir. 2006) (unpublished)
(affirming dismissal of “Bivens claim against U.S. Attorney General
and U.S. Marshal in their individual capacities for failure to allege
personal participation or actual knowledge and acquiescence”)(citing
Woodward v. City of Worland, 977 F.2d 1392, 1400 (10th Cir. 1992)).
The United States is not a proper defendant in this matter and
must be dismissed. And, because plaintiff identifies no personal
participation by them, Director Inch, the unknown Regional Director,
and Warden Maye also are subject to dismissal.
Plaintiff’s claim against the Administrator of National Inmate
Appeals also is subject to dismissal. For screening purposes, the
Court has liberally construed the complaint to allege that this
defendant participated in the grievance process concerning
plaintiff’s disciplinary incident report.
Even under that construction, this defendant is subject to

dismissal. A prison official whose activity is limited to processing
or denying a grievance cannot be held liable on that basis. Rosales
v. Ortiz, 2008 WL 877173, *7 (D. Colo. Mar. 27, 2008), aff’d 325 F.
App’x 695 (10th Cir. 2009).
First Amendment claim
Plaintiff’s claim that he was forced to sign papers in violation
of the First Amendment is subject to dismissal for failure to state
a claim on which relief may be granted. Plaintiff fails to describe
the nature of the papers he signed, to provide any authority for his
argument, or to explain how his decision to sign the papers rather
than be placed in the SHU violated his rights.
Disciplinary action
Plaintiff broadly challenges the disciplinary action against him
as a violation of the Eighth Amendment. It is settled that “prison
officials must ensure that inmates receive adequate food, clothing,
shelter, and medical care, and must take reasonable measures to
guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825,
832 (1994). Officials violate the Eighth Amendment only where the
deprivation in question is “objectively sufficiently serious” and the
prison official acts with a “sufficiently culpable state of mind.”
Id. In cases concerning prison conditions, the requisite state of mind
is one of deliberate indifference. Id. Plaintiff’s bare allegation
of disciplinary action and a brief restriction on visitation fails
to adequately allege either sufficiently serious conditions or
deliberate indifference by officials.
Likewise, plaintiff’s allegations do not support a claim of a
due process violation. A prisoner’s right to due process generally
is not implicated by disciplinary action that does not “impos[e]

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). Sanctions such as the brief restriction in this matter
do not implicate a protected liberty interest. Because a prisoner does
not have a liberty interest in retaining privileges, the brief loss
of visitation imposed on plaintiff as a disciplinary measure did not
result in an atypical hardship in the context of normal prison life.
See Marshall v. Morton, 421 Fed.Appx. 832, 838 (10th Cir. 2011)
(“restrictions on an inmate’s telephone use, property possession,
visitation and recreation privileges are not different in such degree
and duration as compared with the ordinary incidents of prison life
to constitute protected liberty interests”).
Liberty interest
Plaintiff alleges the violation of a liberty interest arising
from BOP Program Statement 5270.09, Inmate Discipline Program.
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 stake.”
Wilkinson v. Austin, 545 U.S. 209, 221 (2005).
As explained, liberty interests 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, id.
Plaintiff provides no supporting facts or argument for this
claim, although it appears that he is dissatisfied with the
investigation and the decision by the UDC. That alone, however, is

insufficient to state a claim for relief.
Order to Show Cause
For the reasons stated, plaintiff is ordered to show cause why
this matter should not be dismissed. Plaintiff is also given the
opportunity to file a complete and proper amended complaint that
corrects all the deficiencies discussed in this order.
Plaintiff’s amended complaint must be submitted upon
court-approved forms. An amended complaint is not an addendum or
supplement to the original complaint but completely supersedes it.
Therefore, any claims or allegations not presented in the amended
complaint are no longer before the Court. Plaintiff may not simply
refer to an earlier pleading; instead, the complaint must contain all
allegations and claims that plaintiff intends to present in the
action, including those to be retained from the original complaint.
Plaintiff must include the case number of this action on the first
page of the amended complaint.
Plaintiff must name every defendant in the caption of the amended
complaint. See Fed. R. Civ. P. 10(a). Plaintiff must refer to each
defendant in the body of the complaint and must allege specific facts
that the describe the allegedly unconstitutional acts or omissions
by each defendant, including dates, locations, and circumstances.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff is granted to
and including April 4, 2019, to show cause and to submit an amended
complaint. The failure to file a timely response will result in the
dismissal of this matter without additional prior notice.

IT IS SO ORDERED.
DATED:

This 4th day of March, 2019, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge