Coleman v. Johnston

Filing 3

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted to and including March 18, 2021, in which to show good cause, in writing, why his Complaint should not be dismissed. Plaintiff's Motion to Appoint Counsel (ECF No. 2 ) is denied. Signed by U.S. Senior District Judge Sam A. Crow on 02/18/21.Mailed to pro se party Deontray D. Coleman by regular mail. (smnd)

Case 5:20-cv-03236-SAC Document 3 Filed 02/18/21 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DEONTRAY D. COLEMAN,
Plaintiff,
v.

CASE NO. 20-3236-SAC

MIKE JOHNSTON,
Defendant.

MEMORANDUM AND ORDER
AND ORDER TO SHOW CAUSE
Plaintiff Deontray D. Coleman, a prisoner at the United States Disciplinary Barracks, Fort
Leavenworth, Kansas, brings this pro se civil rights action. 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’s Complaint (ECF No. 1) alleges violation of his right to freedom of religion. He
states that he began practicing the Rastafarian faith in 2018 and officially changed his religious
preference with the U.S. Disciplinary Barracks (USDB) from Christian to Rastafarian in January
2020. Plaintiff states he is choosing to take the Nazarite vow, which provides no razor shall touch
his head and he shall let his hair grown long. On July 7, 2020, he submitted two MCC Form 510s
to the Commandant for exceptions to AR 670-1 “Wear and Appearance of Army Uniform and
Insignia,” which the USDB requires inmates to follow. One request was for a beard and the other
was for dreadlocks. Plaintiff’s request for an exception for a beard was answered, but his request
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for dreadlocks was not answered within the timeframe outlined by regulations. When he pointed
out that the regulations provide a 30-day response time, he was told his request was being
processed. Plaintiff also requested on July 25, 2020 to be able to speak with a Rastafarian minister
in accordance with DoDI 1325.07 and received another “it’s being processed” response. As of the
date Plaintiff filed his Complaint (September 16, 2020), he had still not received a response to his
requests. Plaintiff alleges he has been told he has to cut his hair or face disciplinary charges.
Plaintiff names as defendant Mike Johnston, Commandant of the USDB. Mr. Coleman
alleges violation of his rights under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §
2000bb. He seeks an exception to the grooming policy and $1,000 for court costs, materials, and
suffering.
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 employee of such entity to determine whether summary
dismissal is appropriate. 28 U.S.C. § 1915A(a). Upon completion of this screening, the Court
must dismiss any claim that is frivolous or malicious, fails to state a claim upon which relief may
be granted, or seeks monetary damages from a defendant who is immune from such relief. 28
U.S.C. §§ 1915A(b).
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).

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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
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

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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. Claim for Damages
Insofar as Plaintiff is attempting to recover damages in his lawsuit, that claim is barred. In
Feres v. United States, 340 U.S. 135 (1950), the United States Supreme Court determined that the
Federal Tort Claims Act did not operate as a waiver of sovereign immunity in an action brought
by active-duty military personnel. The Court held that the federal government “is not liable under
the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the
course of activity incident to service.” Id. at 146.
Federal courts have extended the “incident to service” test to bar other damages actions
against military personnel. In Chappell v. Wallace, 462 U.S. 296 (1983), the Court applied the
Feres doctrine to bar constitutional claims brought pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), holding “that enlisted military
personnel may not maintain a suit to recover damages from a superior officer for alleged
constitutional violations.” Chappell, 462 U.S. at 305; see also United States v. Stanley, 483 U.S.
669, 681 (1987) (“Today, no more than when we wrote Chappell, do we see any reason why our
judgment in the Bivens context should be any less protective of military concerns than it has been
with respect to FTCA suits, where we adopted an ‘incident to service’ rule.”).
Plaintiff’s status as a military prisoner dictates that his claims concerning violation of his
constitutional right to freedom of religion arise incident to military service. In Ricks v. Nickels,
295 F.3d 1124 (10th Cir. 2002), the Tenth Circuit noted that:

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At the time he filed the original complaint, Ricks was serving his sentence at the
USDB in Fort Leavenworth, Kansas. The USDB is the Army Corrections System
maximum custody facility and provides long-term incarceration for enlisted and
officer personnel of the armed forces. No civilians are confined at the USDB. The
USDB is run by the Commandant, a United States Army military police officer.
Military police serve as correctional officers at the USDB, which does not employ
civilian guards.
Id. at 1126 (rejecting military prisoner’s Bivens claim under the Feres doctrine; plaintiff, although
discharged, remained subject to the Uniform Code of Military Justice (UCMJ)). The Court held
that Ricks’ alleged injuries stemmed from his military relationship such that it is incident to his
military service, where he was convicted in a military court for offenses committed during active
duty; was confined in a military institution commanded and operated by military personnel, subject
to the USDB’s rules and regulations; and was subject to the UCMJ and could be tried by courtmartial for offenses during incarceration. Likewise, any claim Plaintiff may be making for
monetary damages is “incident to military service” and therefore barred by the Feres doctrine.
Moreover, to the extent Plaintiff seeks damages under RFRA, such claim is also barred by
sovereign immunity. The congressional waiver of sovereign immunity under RFRA is limited to
RFRA claims seeking injunctive relief. Crocker v. Durkin, 159 F. Supp. 2d 1258, 1269 (D. Kan.
2001), aff’d, 53 F. App’x 503 (10th Cir. 2002).
B. Exhaustion of Administrative Remedies
Under 42 U.S.C. § 1997e(a), a prisoner must exhaust his administrative remedies prior to
filing a lawsuit in federal court regarding prison conditions. Id. Section 1997e(a) expressly
provides:
No action shall be brought with respect to prison conditions under section 1983
of this title, or any other Federal law, by a prisoner confined in any jail, prison,
or other correctional facility until such administrative remedies as are available
are exhausted.

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Id. 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 v. Jones, 607 F.3d 1245, 1249 (10th Cir. 2010).1 While
failure to exhaust is an affirmative defense and a plaintiff is generally not required to plead it in
the Complaint, when that failure is clear from materials filed by the plaintiff, the Court may sua
sponte inquire into the issue of exhaustion. See Aquilar-Avellaveda v. Terrell, 478 F.3d 1223,
1225 (10th Cir. 2007) (acknowledging district courts may raise exhaustion question sua sponte,
consistent with 42 U.S.C. § 1997e(c)(1) and 28 U.S.C. §§ 1915 and 1915A).
As summarized above, Plaintiff stated in his Complaint that he had not yet received an
official response to his request for a religious exception. It appears there was a change in
Department of Defense policy regarding accommodation of religious practices at approximately
the same time as Plaintiff filed his Complaint. Therefore, before the Court proceeds with screening
this case, Plaintiff is directed to inform the Court whether he subsequently received a response to
his exception request and whether he administratively appealed that response, if necessary.
IV. Response Required
For the reasons stated herein, it appears that Plaintiff’s Complaint may be subject to
dismissal under 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted
and for failure to exhaust. Plaintiff is therefore required to show good cause why his Complaint
should not be dismissed. Plaintiff is warned that his failure to file a timely response may result in
the Complaint being dismissed for the reasons stated herein without further notice.

To satisfy this requirement, a prisoner must fully comply with the institution’s grievance procedures. Jones
v. Bock, 549 U.S. 199, 218 (2007); Woodford v. Ngo, 548 U.S. 81, 90 (2006); Little, 607 F.3d at 1249 (The “inmate
may only exhaust by properly following all the steps laid out in the prison system’s grievance procedures.”)(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. . . .” Id. (citing Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002)).
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V. Motion to Appoint Counsel (ECF No. 2)
Also before the Court is Plaintiff’s Motion to Appoint Counsel. The Court has considered
Plaintiff’s motion. 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 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; (2) the issues are not overly complex; and (3) Plaintiff appears capable of
adequately presenting facts and arguments. Consequently, the Court denies the motion.
IT IS THEREFORE ORDERED that Plaintiff is granted to and including March 18,
2021, in which to show good cause, in writing, why his Complaint should not be dismissed for the
reasons stated herein.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Appoint Counsel (ECF No. 2) is
denied.

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IT IS SO ORDERED.
DATED: This 18th day of February, 2021, at Topeka, Kansas.

s/_Sam A. Crow_____
SAM A. CROW
U.S. Senior District Judge

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