Blake (ID 96323) v. JPay et al

Filing 6

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted until February 11, 2019, 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 d ismissed. Plaintiff is also granted until February 11, 2019, 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 01/15/19.Mailed to pro se party Shaidon Blake by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SHAIDON BLAKE,
Plaintiff,
v.

CASE NO. 18-3146-SAC

JPAY, et al.,
Defendants.

MEMORANDUM AND ORDER
AND ORDER TO SHOW CAUSE
Plaintiff Shaidon Blake 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
the opportunity to file a complete and proper amended complaint that cures all the deficiencies
discussed herein.
I. Nature of the Matter before the Court
Plaintiff proceeds pro se and in forma pauperis in this prisoner civil rights action under
42 U.S.C. § 1983. At the time of filing, Plaintiff was in custody at El Dorado Correctional
Facility in El Dorado, Kansas (“EDCF”). Plaintiff’s single-count Complaint alleges violations of
his First Amendment rights. Plaintiff names as Defendants: JPay, the communications provider
for the Kansas Department of Corrections; Paul Snyder, Warden at EDCF; and Joe Norwood,
Secretary of Corrections.
Plaintiff alleges that his authored book was ordered censored and banned without good
cause. Plaintiff alleges that his agent sent a picture of the cover of Plaintiff’s authored book over
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JPay and JPay censored it in its entirety, claiming it was sexually explicit. Defendant Snyder,
Warden at EDCF, concurred and upheld the ban.

Plaintiff appealed to the Secretary of

Corrections and Defendant Norwood also concurred. The censorship was allegedly based on
sexually explicit material contained in the book. Plaintiff alleges that the book contained no
“sexually explicit gestures, no penetration or anything considered vulgar in nature.” (Doc. 1, at
2.)
Plaintiff seeks injunctive relief by way of an order allowing Plaintiff’s authored books
into the KDOC. Plaintiff also seeks $5,000,000 in compensatory damages and $50,000,000 in
punitive damages.
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
“Inmates have a First Amendment right to receive information while in prison to the
extent the right is not inconsistent with prisoner status or the legitimate penological objectives of
the prison.” Jacklovich v. Simmons, 392 F.3d 420, 426 (10th Cir. 2004) (citations omitted).
“[W]hen a prison regulation impinges on inmates’ [First Amendment rights], the regulation is
valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S.
78, 89 (1987). This requires an examination of the following factors: (1) whether a valid and
rational connection exists between the regulation and the asserted legitimate governmental
interest; (2) whether alternative means of exercising the constitutional right remain available to
inmates; (3) any effect accommodating the right would have on guards, inmates, and the
allocation of prison resources; and (4) the absence of ready alternatives. Id. at 89–90. “The
burden, moreover, is not on the State to prove the validity of prison regulations but on the
prisoner to disprove it.” Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (citations omitted).
The governmental objectives underlying K.A.R. § 44-12-313 have been found to be
legitimate and neutral and the regulation has been found to rationally relate to those objectives.
See Sperry v. Werholtz, 413 F. App’x 31, 40 (10th Cir. 2011) (unpublished). The Kansas
Administrative Regulations were amended in 2004 to provide that:

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(a) No inmate shall have in possession or under control any
sexually explicit materials, including drawings, paintings, writing,
pictures, items, and devices.
(b) The material shall be considered sexually explicit if the purpose
of the material is sexual arousal or gratification and the material
meets either of the following conditions:
(1) Contains nudity, which shall be defined as the depiction
or display of any state of undress in which the human
genitals, pubic region, buttock, or female breast at a point
below the top of the aerola is less than completely and
opaquely covered; or
(2) contains any display, actual or simulated, or description
of any of the following:
(A) Sexual intercourse or sodomy, including genitalgenital, oral-genital, anal-genital, and anal-oral contact,
whether between persons of the same or differing gender;
(B) masturbation;
(C) bestiality; or
(D) sadomasochistic abuse.
K.A.R. § 44-12-313(a) and (b). The reasons for the promulgation of the amended regulation
were set forth in Sperry. The Secretary of the KDOC at that time “decided to prohibit sexually
explicit publications and items from correctional facilities to help with institutional security,
facilitate rehabilitation of sex offenders, and prevent sexual harassment.” Sperry, 413 F. App’x
at 34. The Secretary testified that he made the decision for the following reasons:
Sexually explicit materials are a general impediment to the
preservation of security at KDOC facilities. They can reasonably
be expected to lead to the open performance of lewd acts, which
disrupts overall security and order. The possession of sexually
explicit materials can openly identify an inmate as homosexual and
create an immediate security concern, as such inmates are often
targeted for exploitation or violent attack. Sexually explicit
materials disrupt and interfere with the treatment and management
of sex offenders. The blanket ban prevents sex offenders from
having access to such materials directly or by illicit dealing and
trading of sexually explicit materials with non-sex offenders. The
materials may also be used to sexually harass staff members. There
was a potential for staff to file sexual harassment complaints due to
exposure to the materials in the workplace environment. Prior to
the amendments to Kan. Admin. Regs. § 44–12–313, KDOC had
received complaints from prison staff about being required to view
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these materials while performing their duties. Inmates had also
made comments referencing comparisons between prison staff and
individuals in the publications or other materials.
Id. at 34–35. The Secretary also testified that prior to the amendment “KDOC staff spent
excessive amounts of time: (1) reviewing publications to determine what was allowable and what
was not; (2) processing and deciding appeals from the initial decision; and (3) processing
notifications and other information related to ordering, receiving, or failing to receive such
materials.” Id. at 35. He further testified that “(1) there was not an easier alternative in dealing
with sexually explicit materials; (2) redacting the prohibited material was not a workable
alternative because KDOC receives mail for thousands of inmates; and (3) it would be costly and
cumbersome for staff members to redact the sexually explicit material from each publication.”
Id.
Plaintiff alleges that his authored book or book cover were withheld as sexually explicit
and that the book contained no “sexually explicit gestures, no penetration or anything considered
vulgar in nature.” However, the regulation prohibits more than these categories, and Plaintiff
fails to even identify or describe what was contained on the book cover. Plaintiff does not state
a federal constitutional violation by alleging that his materials were withheld as sexually explicit
without more. See Meredith v. Roberts, No. 12-3027-SAC, 2012 WL 1380330, at *5 (D. Kan.
April 20, 2012). As the Tenth Circuit has noted:
[S]uch restrictions are sufficiently commonplace in the prison
setting, see, e.g., Thornburgh, 490 U.S. at 415–19, 109 S. Ct. 1874
(upholding restrictions on prisoners’ incoming mail); Smith, 899
F.2d at 944 (complaint about undelivered catalogues did not raise a
constitutional issue), that his claim is not plausible absent
allegations showing that the restrictions were imposed in violation
of prison regulations or that the regulations invoked were
unconstitutional in the circumstances.
Id. (quoting Gee v. Pacheco, 627 F.3d 1178, 1190 (10th Cir. 2010)).
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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.
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 BY THE COURT that Plaintiff is granted until
February 11, 2019, 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.

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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 (18-3146-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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IT IS FURTHER ORDERED that Plaintiff is also granted until February 11, 2019, 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 January, 2019.

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

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