Loufer v. Carr et al

Filing 12

MEMORANDUM AND ORDER ENTERED: This case is dismissed for failure to state a claim. Signed by U.S. Senior District Judge Sam A. Crow on 07/26/19. Mailed to pro se party Gregory Charles Loufer by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GREGORY CHARLES LOUFER,
Plaintiff,
v.

CASE NO. 18-3144-SAC

BILL CARR, et al.,
Defendants.
MEMORANDUM AND ORDER
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. 6.) On August 29, 2018, the Court
entered a Memorandum and Order and Order to Show Cause (Doc. 8) (“MOSC”), granting Plaintiff
an opportunity to show good cause why his Complaint should not be dismissed or to file a proper
amended complaint. Plaintiff filed an Amended Complaint (Doc. 9). On July 2, 2019, the Court
entered another Memorandum and Order and Order to Show Cause (“MOSC 2”), finding that
Plaintiff’s Amended Complaint fails to state a claim for relief and granting Plaintiff until July 22,
2019, in which to show good cause why his Amended Complaint should not be dismissed for the
reasons set forth in the MOSC 2.
In the Court’s MOSC, the Court found that: Plaintiff fails to allege personal participation by
any of the defendants in any purported constitutional violations; Plaintiff’s First Amendment claim
of denial of the right to freely practice his religion is subject to dismissal for failure to allege
adequate facts in support; and Plaintiff has failed to allege an actual injury and he must first allege
facts in his complaint suggesting an actual injury, “an essential requirement of a denial of access
claim.” Harrison, 24 F. App’x at 967 (citing Lewis v. Casey, 518 U.S. 343, 351–52 (1996)). The
court also found that Plaintiff’s request for compensatory damages is barred by 42 U.S.C.

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§ 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). In addition, 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.
In the MOSC 2, the Court found that although Plaintiff’s Amended Complaint adds facts to
support his First Amendment claim, he fails to cure the remaining deficiencies set forth in the
MOSC. The Court found that to the extent Plaintiff added factual support regarding his religious
diet at the Ford County Detention Center in Dodge City, Kansas (“FCDC”), those claims are now
moot. Plaintiff seeks injunctive relief regarding those claims, and he is no longer housed at the
FCDC.
Plaintiff has failed to respond to the Court’s MOSC 2 by the deadline. The Court finds that
this case should be dismissed for failure to state a claim as set forth in the MOSC and MOSC 2.
IT IS THEREFORE ORDERED this case is dismissed for failure to state a claim.
IT IS SO ORDERED.
Dated in Topeka, Kansas, on this 26th day of July, 2019.
s/ Sam A. Crow
Sam A. Crow
U.S. Senior District Judge

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