Jackson (ID 72711) v. Sauers et al

Filing 8

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE ENTERED: Plaintiff's Motion forAppointment of Counsel 7 is denied without prejudice. Plaintiff is granted until January 18, 2018, in which to show good cause, in writing, to the Honorable Sam A. C row, United States District Judge, why Plaintiff's Complaint should not be dismissed. Plaintiff is also granted until January 18, 2018, inwhich to file a complete and proper amended complaint to cure all the deficiencies. Signed by U.S. Senior District Judge Sam A. Crow on 12/18/18. Mailed to pro se party Dennis L. Jackson by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DENNIS L. JACKSON,
Plaintiff,
v.

CASE NO. 18-3149-SAC

MARTIN SAUERS, et al.,
Defendants.
MEMORANDUM AND ORDER
AND ORDER TO SHOW CAUSE
Plaintiff Dennis L. Jackson 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 that cures all the deficiencies discussed
herein.
I. Nature of the Matter before the Court
Plaintiff brings this pro se civil rights action under 42 U.S.C. § 1983. In Count I, Plaintiff
alleges a denial of access to the courts. Plaintiff alleges that since his transfer to D-Unit on May 18,
2018, he has made continuous requests to access the law library to obtain legal information for
filing civil claims regarding black mold. Plaintiff also sought information to file civil complaints
for prison officials removing his previously-approved attorney phone numbers. Plaintiff also
alleges that his “no stairs” restriction hindered his use of the law library. Plaintiff alleges that the
law library is inadequate because it contains only one computer terminal, and no legal journals,
reference books, administrative laws or rules. Plaintiff sent Form 9 communications to the UTMs
and was told he needed to sign a medical waiver regarding his “no stairs” restriction if he wanted
law library access.
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In Count II Plaintiff alleges retaliation, claiming that he received no written response to his
Form 9 communications, but rather only verbal responses from staff telling him they had no
authority to address his issues or giving him “indifferent responses.” (Doc. 1, at 6.) Plaintiff
sought a transfer due to the threat of black mold infections and the denial of protective custody.
Plaintiff alleges that since filing his grievances he has been “spoken to in a condescending manner
by medium custody Unit Team Manager Mr. Pfanstiel, with comments of ‘I believe your
conspiracy/paranoia issues are running amok’ and ‘Why do you think no one wants you at their
facility?’” Id. Plaintiff also alleges that his previously agreed to transfer was being denied “under
premises of [his] medical condition.” Plaintiff alleges that this is an invalid reason to deny his
transfer because his requested facility has an entire floor/wing for persons with physical
impairments or ambulatory issues. Plaintiff also alleges that staff warned him that he would be
given a disciplinary violation if he went upstairs to the law library against medical orders.1
Plaintiff names as Defendants Martin Sauers, Warden at Ellsworth Correctional Facility;
and Joel Hrabe, Warden at Norton Correctional Facility. Plaintiff seeks compensatory damages,
nominal damages in the amount of $2,500,000, punitive damages in the amount of $750,000, and
a “physical examination by ‘outside’ licensed physicians including chest x-rays, blood test, etc. . .
. to detect any infections of Black Mold or respiratory ailments or other related diseases.” Plaintiff
also requests that all responsible parties involved be reprimanded and ordered to refrain from
retaliating. Id. at 10.
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).

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 Plaintiff’s Complaint refers to an attached memorandum for Count III. However, there is no attachment
regarding a Count III.

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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 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

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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
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
1. Denial of Access to the Courts
Plaintiff claims that he was denied access to the courts due to his inability to use the law
library and due to the inadequacy of the law library. Plaintiff has failed to allege an actual injury.
See Proch v. Baker, Case No. 14-3021-CM, 2017 WL 2793922, at *7 (D. Kan. June 28, 2017)
(citing Lewis v. Casey, 518 U.S. 343, 349 (1996) (violations of the constitutional right of access to

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the courts require a showing of injury due to the deprivation); Sterling v. Edwards, 881 F. Supp.
488, 490 (D. Kan. 1995) (there must be prejudice)).
Although it is well-established that a prison inmate has a constitutional right of access to
the courts, it is equally well-settled that in order “[t]o present a viable claim for denial of access to
courts, . . . an inmate must allege and prove prejudice arising from the defendants’ actions.”
Peterson v. Shanks, 149 F.3d 1140, 1145 (10th Cir. 1998) (citations omitted); Lewis v. Casey, 518
U.S. 343, 349 (1996) (“The requirement that an inmate . . . show actual injury derives ultimately
from the doctrine of standing.”).
An inmate may satisfy the actual-injury requirement by demonstrating that the alleged acts
or shortcomings of defendants “hindered his efforts to pursue” a non-frivolous legal claim. Lewis,
518 U.S. at 351-53; see also Burnett v. Jones, 437 F. App’x 736, 744 (10th Cir. 2011) (“To state
a claim for violation of the constitutional right to access the courts, a prisoner ‘must demonstrate
actual injury . . .—that is, that the prisoner was frustrated or impeded in his efforts to pursue a
nonfrivolous legal claim concerning his conviction or his conditions of confinement.’”) (quoting
Gee v. Pacheco, 627 F.3d 1178, 1191 (10th Cir. 2010)).
The Supreme Court plainly held in Lewis that “the injury requirement is not satisfied by
just any type of frustrated legal claim.” Lewis, 518 at 354. Rather, the injury occurs only when
prisoners are prevented from attacking “their sentences, directly or collaterally” or challenging
“the conditions of their confinement.” Id. at 355. “Impairment of any other litigating capacity is
simply one of the incidental (and perfectly constitutional) consequences of conviction and
incarceration.” Id. (emphasis in original); see also Carper v. DeLand, 54 F.3d 613, 617 (10th Cir.
1995) (“[A]n inmate’s right of access does not require the state to supply legal assistance beyond

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the preparation of initial pleadings in a civil rights action regarding current confinement or a
petition for a writ of habeas corpus.”) (citations omitted).
A plaintiff 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)). Plaintiff has failed to allege an actual injury. “It is not enough for
[plaintiff] to state that he is unable to file motions or briefs.” Id. Plaintiff was able to file the
instant case and he has not alleged an injury resulting from his failure to file other actions.
2. Personal Participation
Plaintiff has failed to allege how either of the named Defendants personally participated in
the deprivation of his constitutional rights. 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, 165–66 (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) (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that
each Government-official defendant, through the official’s own individual actions, has violated
the Constitution.”). 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.
Mere supervisory status is insufficient to create personal liability. Duffield v. Jackson, 545
F.3d 1234, 1239 (10th Cir. 2008) (supervisor status is not sufficient to create § 1983 liability). An
official’s liability may not be predicated solely upon a theory of respondeat superior. Rizzo v.
Goode, 423 U.S. 362, 371 (1976); Gagan v. Norton, 35 F.3d 1473, 1476 FN4 (10th Cir. 1994),

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cert. denied, 513 U.S. 1183 (1995). A plaintiff alleging supervisory liability must show “(1) the
defendant promulgated, created, implemented or possessed responsibility for the continued
operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the
state of mind required to establish the alleged constitutional deprivation.” Dodds v. Richardson,
614 F.3d 1185, 1199 (10th Cir. 2010), cert. denied, 563 U.S. 960 (2011). “[T]he factors necessary
to establish a [supervisor’s] § 1983 violation depend upon the constitutional provision at issue,
including the state of mind required to establish a violation of that provision.” Id. at 1204 (citing
Iqbal, 129 S. Ct. at 1949).
Any amended complaint filed by Plaintiff should name each individual defendant as
directly involved in each scenario and describe the acts or inactions of that person which allegedly
violated his constitutional rights.
3. Retaliation
Plaintiff claims retaliation in Count II. However, none of the staff mentioned in that count
are named as defendants. Furthermore, Plaintiff fails to state a claim of retaliation. “[I]t is well
established that an act in retaliation for the exercise of a constitutionally protected right is
actionable under [42 U.S.C.] Section 1983 even if the act, when taken for a different reason, would
have been proper.” Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990) (citations omitted).
The Tenth Circuit has held that:
Government retaliation against a plaintiff for exercising his or her First Amendment
rights may be shown by proving the following elements: (1) that the plaintiff was
engaged in constitutionally protected activity; (2) that the defendant’s actions
caused the plaintiff to suffer an injury that would chill a person of ordinary firmness
from continuing to engage in that activity; and (3) that the defendant’s adverse
action was substantially motivated as a response to the plaintiff’s exercise of
constitutionally protected conduct.
Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007).

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However, an “inmate claiming retaliation must allege specific facts showing retaliation
because of the exercise of the prisoner’s constitutional rights.” Fogle v. Pierson, 435 F.3d 1252,
1264 (10th Cir. 2006) (quotations and citations omitted). Thus, for this type of claim, “it is
imperative that plaintiff’s pleading be factual and not conclusory.

Mere allegations of

constitutional retaliation will not suffice.” Frazier v. Dubois, 922 F.2d 560, 562 n. 1 (10th Cir.
1990). “To prevail, a prisoner must show that the challenged actions would not have occurred ‘but
for’ a retaliatory motive.” Baughman v. Saffle, 24 F. App’x 845, 848 (10th Cir. 2001) (citing Smith
v. Maschner, 899 F.2d 940, 949–50 (10th Cir. 1990); Peterson v. Shanks, 149 F.3d 1140, 1144
(10th Cir. 1998)).
Plaintiff’s claims of retaliation are subject to dismissal for failure to allege adequate facts
in support of the claims. Plaintiff fails to allege which defendants retaliated against him and his
allegations regarding retaliation are generally conclusory, lacking facts to demonstrate any
improper retaliatory motive.
4. Injunctive Relief
Plaintiff also seeks injunctive relief. Plaintiff was transferred to the Winfield Correctional
Facility in Winfield, Kansas. It is unclear whether this is the facility that Plaintiff was seeking to
be transferred to as set forth in his Complaint. Because Plaintiff is no longer incarcerated at Norton
Correctional Facility, his requests for injunctive relief are moot. Article III of the Constitution
extends the jurisdiction of federal courts only to “live, concrete” cases or controversies. Rio
Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1109 (10th Cir. 2010). “Article
III’s requirement that federal courts adjudicate only cases and controversies necessitates that courts
decline to exercise jurisdiction where the award of any requested relief would be moot—i.e. where
the controversy is no longer live and ongoing.” Cox v. Phelps Dodge Corp., 43 F.3d 1345, 1348

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(10th Cir. 1994), superseded by statute on other grounds. Consequently, “[m]ootness is a
threshold issue because the existence of a live case or controversy is a constitutional prerequisite
to federal court jurisdiction.” Rio Grande, 601 F.3d at 1109 (internal quotations and citations
omitted).
“Past exposure to illegal conduct does not in itself show a present case or controversy
regarding injunctive relief.” O’Shea v. Littleton, 414 U.S. 488, 495 1974). The Tenth Circuit has
applied this principle to § 1983 actions brought by inmates, and held that an inmate’s transfer from
one prison to another generally renders moot any request for injunctive relief against the
employees of the original prison concerning the conditions of confinement. See Green v. Branson,
108 F.3d 1296, 1299–1300 (10th Cir. 1997); see also Wirsching v. Colorado, 360 F.3d 1191, 1196
(10th Cir. 2004) (inmate’s release from prison moots his claims for declaratory and injunctive
relief); McAlpine v. Thompson, 187 F.3d 1213, 1215 (10th Cir. 1999) (recognizing prisoner’s
release from prison mooted his § 1983 claim for injunctive relief); Love v. Summit County, 776
F.2d 908, 910 n.4 (10th Cir. 1985) (noting transfer of inmate to different prison renders his § 1983
claim for injunctive relief moot); see also Pfeil v. Lampert, 603 F. App’x 665, 668 (10th Cir. 2015)
(unpublished) (holding that “RLUIPA claims regarding prison conditions become moot if the
inmate plaintiff is released from custody.”) (citations omitted).
The mootness doctrine is based on the reality that even if the inmate receives injunctive
relief, the defendants from the former prison would be unable to provide the relief to plaintiff.
Because Plaintiff is no longer incarcerated at the Norton Correctional Facility, his claims for
injunctive relief are moot and subject to dismissal.
5. Damages
Plaintiff’s request for compensatory damages is barred by 42 U.S.C. § 1997e(e), because

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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). Plaintiff also seeks nominal damages in the
amount of $2,500,000. However, nominal damages are awarded in a nominal amount, typically
in the total amount of $1.00. Beauclair v. Roberts, No. 14-3022-SAC, 2015 WL 197332, at *7 (D.
Kan. Jan. 14, 2015) (citing Corpus v. Bennett, 430 F.3d 912, 916 (8th Cir. 2005) (“One dollar is
recognized as an appropriate value for nominal damages.”)).
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, 251 F.3d at 879 (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.
IV. Motion for Appointment of Counsel
Plaintiff has filed a motion for appointment of counsel (Doc. 7). Plaintiff alleges that he
does not have knowledge of the law and has physical disabilities “obstructing [him] to obtain
gainful employment after [his] release from incarceration.” Plaintiff also sets forth his attempts to
obtain counsel.
The Court has considered Plaintiff’s motion for appointment of counsel. There is no
constitutional right to appointment of counsel in a civil case. Durre v. Dempsey, 869 F.2d 543,
547 (10th Cir. 1989); Carper v. DeLand, 54 F.3d 613, 616 (10th Cir. 1995). The decision whether

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to appoint counsel in a civil matter lies in the discretion of the district court. Williams v. Meese,
926 F.2d 994, 996 (10th Cir. 1991). “The burden is on the applicant to convince the court that
there is sufficient merit to his claim to warrant the appointment of counsel.” Steffey v. Orman, 461
F.3d 1218, 1223 (10th Cir. 2006) (quoting Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115
(10th Cir. 2004)). It is not enough “that having counsel appointed would have assisted [the
prisoner] in presenting his strongest possible case, [as] the same could be said in any case.” Steffey,
461 F.3d at 1223 (quoting Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)).
In deciding whether to appoint counsel, courts must evaluate “the merits of a prisoner’s
claims, the nature and complexity of the factual and legal issues, and the prisoner’s ability to
investigate the facts and present his claims.” Hill, 393 F.3d at 1115 (citing Rucks, 57 F.3d at 979).
The Court concludes in this case that (1) it is not clear at this juncture that Plaintiff has asserted a
colorable claim against a named defendant; (2) the issues are not complex; and (3) Plaintiff appears
capable of adequately presenting facts and arguments. The Court denies the motion without
prejudice to refiling the motion if Plaintiff’s Complaint survives screening.
V. 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.2 Plaintiff is

2

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 (18-3149-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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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’s Motion for
Appointment of Counsel (Doc. 7) is denied without prejudice.
IT IS FURTHER ORDERED that Plaintiff is granted until January 18, 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 January 18, 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 18th day of December, 2018.

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

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