Hughes (ID 96576) v. Coder et al

Filing 6

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted until September 14, 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 di smissed. Plaintiff is also granted until September 14, 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 08/15/18. Mailed to pro se party Charley Hughes by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CHARLEY HUGHES,
Plaintiff,
v.

CASE NO. 18-3101-SAC

MARTHA CODER, et al.,
Defendants.

MEMORANDUM AND ORDER
AND ORDER TO SHOW CAUSE

Plaintiff Charley Hughes 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. The Court
granted Plaintiff leave to proceed in forma pauperis. (Doc. 5.) Plaintiff is incarcerated at the
Hutchinson Correctional Facility in Hutchinson, Kansas (“HCF”). Plaintiff alleges that he was
scheduled to be released from prison on September 15, 2017. On August 15, 2017, he received
paperwork to serve a consecutive sentence of 130 months. Plaintiff alleges that he has already
served 47 months for the same charge and that the Defendants conspired to keep Plaintiff falsely
imprisoned and denied his request for release.

Plaintiff’s conspiracy claim alleges that

“Defendants Martha Coder, Joe Norwood and Dan Schnurr acted in concert to commit an

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unlawful act that inflicted a wrong against Plaintiff.

The conspiracy was impelled by a

commingle of racial and political motives.” (Doc. 1, at 3.) Plaintiff also claims that Defendants
Norwood and Schnurr discriminated against Plaintiff on August 17, 2017, when they denied
Plaintiff’s release due to his affiliation with the New Afrikan Black Panther prison chapter.
Lastly, Plaintiff claims that “all defendants subjected Plaintiff to a deprivation of constitutional
magnitude.” Id. at 4. Plaintiff names as Defendants: Martha Coder; Joe Norwood; Dan
Schnurr; Mike Nickels; and Brian Drinkwalter. Plaintiff seeks $100,000 in punitive damages,
$50,000 in compensatory damages, and “immediate release from prison.” Id. at 5.
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

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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 ‘entitlement 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

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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
A. Habeas Nature of Claim
Plaintiff seeks “immediate release from prison.” A petition for habeas corpus relief is a
state prisoner’s sole remedy in federal court for a claim of entitlement to immediate or speedier
release. Preiser v. Rodriguez, 411 U.S. 475, 499 (1973); McIntosh v. U.S. Parole Comm’n, 115
F.3d 809, 811 (10th Cir. 1997); see Boutwell v. Keating, 399 F.3d 1203, 1209 (10th Cir. 2005)
(“[H]abeas corpus is the only avenue for a challenge to the fact or duration of confinement, at
least when the remedy requested would result in the prisoner’s immediate or speedier release
from that confinement.”) (emphasis in original).

When the legality of a confinement is

challenged so that the remedy would be release or a speedier release, the case must be filed as a
habeas corpus proceeding rather than under 42 U.S.C. § 1983, and the plaintiff must comply with
the exhaustion of state court remedies requirement. Heck v. Humphrey, 512 U.S. 477, 481
(1994); see also Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000) (exhaustion of state
court remedies is required by prisoner seeking habeas corpus relief).

Because Plaintiff is

challenging the legality of his current confinement, his claims are not cognizable in a § 1983
action.
Liberally construing Plaintiff’s complaint as a habeas corpus action would not save it
because there is no indication that Plaintiff has exhausted his state court remedies. Plaintiff must

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give the state courts an opportunity to act on his claims by properly presenting them to the
highest state court, either by direct appeal or through a state habeas action, before he presents
those claims to a federal court in a habeas petition. See Brown v. Shanks, 185 F.3d 1122, 1124
(10th Cir. 1999); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).
If Plaintiff has been convicted and a judgment on Plaintiff’s claim in this case would
necessarily imply the invalidity of that conviction, the claim may be barred by Heck. In Heck v.
Humphrey, the United States Supreme Court held that when a state prisoner seeks damages in a
§ 1983 action, the district court must consider the following:
whether a judgment in favor of the plaintiff would necessarily imply the invalidity
of his conviction or sentence; if it would, the complaint must be dismissed unless
the plaintiff can demonstrate that the conviction or sentence has already been
invalidated.
Heck, 512 U.S. at 487. In Heck, the Supreme Court held that a § 1983 damages claim that
necessarily implicates the validity of the plaintiff’s conviction or sentence is not cognizable
unless and until the conviction or sentence is overturned, either on appeal, in a collateral
proceeding, or by executive order. Id. at 486–87.
B. Conspiracy
Plaintiff’s bare conspiracy allegations fail to state a claim upon which relief may be
granted. To state a claim for conspiracy, Plaintiff must include in his complaint enough factual
allegations to suggest that an agreement was made. Gee v. Pacheco, 627 F.3d 1178, 1183 (10th
Cir. 2010). A bare assertion of conspiracy, absent context implying a meeting of the minds, fails
to raise a right to relief above the speculative level. Id. Here, Plaintiff provides no factual
information whatsoever to demonstrate any type of agreement was made between anyone. Such
a conclusory allegation fails to state a plausible claim for relief and is subject to dismissal.

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C. Personal Participation
An essential element of a civil rights claim against an individual is that person’s direct
personal participation in the acts or inactions upon which the complaint is based. Kentucky v.
Graham, 473 U.S. 159, 166 (1985); Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir. 2006);
Foote v. Spiegel, 118 F.3d 1416, 1423–24 (10th Cir. 1997).

Conclusory allegations of

involvement are not sufficient. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). As a result, a
plaintiff is required to name each defendant not only in the caption of the complaint, but again in
the body of the complaint and to include in the body a description of the acts taken by each
defendant that violated plaintiff’s federal constitutional rights.
Plaintiff fails to allege personal participation by Defendants Nickels and Drinkwalter in
any purported constitutional violations. Plaintiff has not identified particular acts or omissions
by each defendant. Plaintiff must explain what each defendant did to him, when the defendant
did it, how the defendant’s actions harmed him, and what specific legal right he believes the
defendant violated. Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir.
2007). Because he has failed to do this, Plaintiff has failed to state a cause of action under
§ 1983 against these defendants.
D. Damages
Plaintiff’s request for compensatory damages is barred by 42 U.S.C. § 1997e(e), because
Plaintiff has failed to allege a physical injury. Section 1997e(e) provides in pertinent part that
“[n]o Federal 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).

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Plaintiffs also seeks punitive damages, which are available in a § 1983 lawsuit.
However, they “are available only for conduct which is ‘shown to be motivated by evil motive or
intent, or when it involves reckless or callous indifference to the federally protected rights of
others.’” Searles v. Van Bebber, 251 F.3d 869, 879 (10th Cir. 2001) (quoting Smith v. Wade,
461 U.S. 30, 56 (1983)). Plaintiff presents no plausible basis for a claim of punitive damages
because he alleges no facts whatsoever establishing that any defendant acted with a sufficiently
culpable state of mind. Plaintiff’s request for punitive damages is subject to dismissal.
E. Discrimination
Plaintiff makes a bald allegation that he was discriminated against for his affiliation in the
New Afrikan Black Panther prison chapter. Plaintiff alleges no facts to support a claim of
discrimination. Furthermore, this Court has previously denied Plaintiff’s claims alleging that
certain defendants conspired to deem the NABPP (“New Afrikan Black Panther Party”) a
security threat group (“STG”). See Hughes v. Robinson, Case No. 18-3025 (D. Kan.). The
Court dismissed that case for failure to state a claim. Id.
F. Constitutional Violation
Plaintiff’s bare allegation that “all defendants subjected Plaintiff to a deprivation of
constitutional magnitude” fails to state a claim for relief. Plaintiff alleges no facts in support of
this allegation.
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
amended complaint upon court-approved forms that cures all the deficiencies discussed herein.1

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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
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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 is granted until September 14, 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 14, 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.
IT IS SO ORDERED.
Dated in Topeka, Kansas, on this 15th day of August, 2018.
s/ Sam A. Crow
Sam A. Crow
U.S. Senior District Judge

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 (18-3101-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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