Bailey v. Cole et al

Filing 4

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted until September 17, 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 17, 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 08/21/18. Mailed to pro se party Kenneth Ray Bailey at Shawnee County Jail and 3535 SW Kirklawn Avenue, Topeka, Kansas 66611 by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KENNETH RAY BAILEY,
Plaintiff,
v.

CASE NO. 18-3108-SAC

BRIAN W. COLE, and
(FNU) BILBY,
Defendants.

MEMORANDUM AND ORDER
AND ORDER TO SHOW CAUSE
Plaintiff Kenneth Ray Bailey brings this pro se civil rights action under 42 U.S.C. § 1983.
Plaintiff is an inmate at the Shawnee County Detention Center in Topeka, Kansas (“SCDC”). The
Court granted his motion to proceed in forma pauperis. For the reasons discussed below, Plaintiff
is ordered to show cause why his Complaint should not be dismissed.
I. Nature of the Matter before the Court
Plaintiff, an African American, alleges that he was being held at the annex building at
SCDC for a probation violation on a misdemeanor theft case. The annex building houses a work
release program separate from the main jail and at a lower custody level. On February 12, 2018,
Plaintiff was relocated from the annex at SCDC to Z-Module and placed in a cell with an inmate
that was a known security threat and a high-ranking member of the Aryan Brotherhood. Plaintiff
alleges that this inmate has pending charges against him for aggravated battery against another
African American male inmate for allegedly biting off the individual’s nose, and was convicted of
voluntary manslaughter for stabbing an individual to death. On February 12, 2018, Plaintiff was

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“attacked, ambushed, assaulted and stabbed” by this inmate. Plaintiff was taken to the emergency
room due to his injuries. Plaintiff has since been removed from Z-Module. The Shawnee County
Sheriff’s Department investigated the assault and took pictures and statements.
Plaintiff names as Defendants: Brian W. Cole, Director of the SCDC; and (fnu) Bilby,
classifications at SCDC. Plaintiff filed an action in small claims court in Shawnee County based
on the same underlying facts as the instant § 1983 case. Plaintiff alleges that his damages are
limited to $4000 in small claims court, so he is seeking additional damages in this case. Plaintiff’s
request for relief in this § 1983 action includes reclassification to the correct housing unit and
$450,000 for “neglect.”
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

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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 ‘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

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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
Plaintiff refers to his small claims court case in response to the question on his Complaint
regarding administrative exhaustion. However, small claims court proceedings “d[o] not replace
the [facility’s] internal grievance system and do not satisfy the administrative remedies exhaustion
requirement.” Gonyea v. Mink, 206 F. App’x 745, 747 n.2 (10th Cir. 2006) (unpublished).
Having considered Plaintiff’s allegations, the Court finds the Complaint is subject to
dismissal because Plaintiff acknowledges that he has not exhausted administrative remedies on his
claims. Under 42 U.S.C. § 1997e(a), “a prisoner must exhaust his administrative remedies prior
to filing a lawsuit regarding prison conditions in federal court.” Little v. Jones, 607 F.3d 1245,
1249 (10th Cir. 200) (citations omitted). This exhaustion requirement “is mandatory, and the
district court [is] not authorized to dispense with it.” Beaudry v. Corrections Corp. of Am., 331
F.3d 1164, 1167 n. 5 (10th Cir. 2003), cert. denied, 540 U.S. 1118 (2004); Little, 607 F.3d at 1249.
A prison or prison system’s regulations define the steps a prisoner must take to properly exhaust
administrative remedies and a prisoner “may only exhaust by following all of the steps laid out”
therein. Little, 607 F.3d at 1249 (citing Woodford v. Ngo, 548 U.S. 81, 90 (2006)). An “inmate
who begins the grievance process but does not complete it is barred from pursuing a § 1983 claim

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under the PLRA for failure to exhaust his administrative remedies.” Jernigan v. Stuchell, 304 F.3d
1030, 1032 (10th Cir. 2002).
The court may dismiss sua sponte a prisoner complaint when it is clear on the face of the
complaint that the prisoner has not exhausted administrative remedies. See Aquilar–Avellaveda v.
Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007). Accordingly, the court finds that Plaintiff’s
Complaint is subject to dismissal without prejudice based on his failure to exhaust available
administrative remedies before filing this action.
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 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.

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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 (18-3108-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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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 17, 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 17, 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 21st day of August, 2018.

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

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