Payton (ID 66352) v. Kelly et al

Filing 5

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE ENTERED: The Court provisionally grants Plaintiff leave to proceed in forma pauperis. Plaintiff's motion (Doc. #4 ) is denied. Plaintiff is granted until December 18, 2020, 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. Plaintiff is also granted until December 18, 2020, in which to file a complete and proper amended complaint to cure all the deficiencies discussed herein. Signed by U.S. Senior District Judge Sam A. Crow on 11/20/2020. Mailed to pro se party Walter Payton by regular mail. (jal)

Case 5:20-cv-03257-SAC Document 5 Filed 11/20/20 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WALTER PAYTON,
Plaintiff,
v.

CASE NO. 20-3257-SAC

LAURA KELLY, et al.,
Defendants.

MEMORANDUM AND ORDER
AND ORDER TO SHOW CAUSE
Plaintiff Walter Payton 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 upon court-approved forms that
cures all the deficiencies discussed herein.
I. Nature of the Matter before the Court
Plaintiff filed this pro se civil rights case under 42 U.S.C. § 1983.

Plaintiff is

incarcerated at the Hutchinson Correctional Facility in Hutchinson, Kansas (“HCF”). Plaintiff
filed this case on October 14, 2020, and on that same date sent a letter to the Clerk asking if his
filing fee could be paid out of his forced savings account. On October 15, 2020, the Court
entered a Notice of Deficiency (Doc. 3) advising Plaintiff that he has not paid the filing fee or
filed a motion for leave to proceed in forma pauperis, and set a compliance deadline of
November 16, 2020. On November 12, 2020, Plaintiff filed a motion (Doc. 4) again asking the

1

Case 5:20-cv-03257-SAC Document 5 Filed 11/20/20 Page 2 of 10

Court to order HCF to pay the filing fee out of Plaintiff’s forced savings account. The Court
denies the motion, but will provisionally grant Plaintiff leave to proceed in forma pauperis.
Plaintiff alleges in his Complaint that in April 2018, he asked his brother to forward
Plaintiff’s stored legal materials to Plaintiff at HCF. Plaintiff’s brother mailed two large priority
envelopes to Plaintiff around April 12, 2018. Plaintiff received one, but the second envelope was
returned to Plaintiff’s brother because it lacked the sender’s full name and address. Plaintiff’s
brother remailed the envelope on April 28, 2018, with the correct information. Plaintiff did not
receive the remailed envelope, and on June 14, 2018, Plaintiff’s brother informed Plaintiff that
an online check revealed that the envelope was received and signed for at the prison on April 30,
2018. Plaintiff met with prison staff in July 2018 to attempt to resolve the situation, but the
missing envelope was not located.
Plaintiff also alleges that on April 17, 2020, he was asked to sign a waiver because threats
were allegedly made against staff at HCF. Plaintiff signed the waiver and was subsequently
moved to a “max” facility for administrative segregation. Plaintiff received a disciplinary report
alleging that Plaintiff had coughed and sneezed on people. Plaintiff denied the allegations.
Plaintiff’s first eight counts deal with his lost envelope.

Count nine alleges that

Defendants violated Plaintiff’s Eighth Amendment rights when they moved him to segregation
and lost some of his property.

Counts ten through thirteen allege various constitutional

violations for failure to follow “policy, procedure, rule, regulations and statutes.” (Doc. 1, at 11–
12.)
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.

2

Case 5:20-cv-03257-SAC Document 5 Filed 11/20/20 Page 3 of 10

§ 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
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

3

Case 5:20-cv-03257-SAC Document 5 Filed 11/20/20 Page 4 of 10

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
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. Statute of Limitations
The statute of limitations applicable to § 1983 actions is determined from looking at the
appropriate state statute of limitations and tolling principles. See Hardin v. Straub, 490 U.S.
536, 539 (1989). “The forum state’s statute of limitations for personal injury actions governs
civil rights claims under both 42 U.S.C. § 1981 and § 1983. . . . In Kansas, that is the two-year

4

Case 5:20-cv-03257-SAC Document 5 Filed 11/20/20 Page 5 of 10

statute of limitations in Kan. Stat. Ann. § 60–513(a).” Brown v. Unified Sch. Dist. 501, Topeka
Pub. Sch., 465 F.3d 1184, 1188 (10th Cir. 2006) (citations omitted). The same two-year statute
of limitations governs actions under 42 U.S.C. § 1985. See Alexander v. Oklahoma, 382 F.3d
1206, 1212 (10th Cir.), rehearing denied, 391 F.3d 1155 (10th Cir. 2004), cert. denied, 544 U.S.
1044 (2005).
While state law governs the length of the limitations period and tolling issues, “the
accrual date of a § 1983 cause of action is a question of federal law.” Wallace v. Kato, 549 U.S.
384, 388 (2007). Under federal law, the claim accrues “when the plaintiff has a complete and
present cause of action.” Id. (internal quotation marks and citation omitted). In other words, “[a]
§ 1983 action accrues when facts that would support a cause of action are or should be apparent.”
Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006) (internal quotation marks and citation
omitted), cert. denied 549 U.S. 1059 (2006). A district court may dismiss a complaint filed by
an indigent plaintiff if it is patently clear from the allegations as tendered that the action is barred
by the statute of limitations. Id. at 1258–59; see also Jones v. Bock, 549 U.S. 199, 214 (2007);
Hawkins v. Lemons, No. 09-3116-SAC, 2009 WL 2475130, at *2 (D. Kan. Aug. 12, 2009).
It plainly appears from the face of the Complaint that Plaintiff’s claims regarding his lost
mail are subject to dismissal as barred by the applicable two-year statute of limitations. Plaintiff
filed his Complaint on October 14, 2020. Plaintiff’s alleged violations occurred around April of
2018. It thus appears that any events or acts of Defendant taken in connection with Plaintiff’s
claims took place more than two years prior to the filing of Plaintiff’s Complaint and are timebarred. See Fratus v. Deland, 49 F.3d 673, 674-75 (10th Cir. 1995) (district court may consider
affirmative defenses sua sponte when the defense is obvious from the face of the complaint and
no further factual record is required to be developed). Plaintiff has not alleged facts suggesting

5

Case 5:20-cv-03257-SAC Document 5 Filed 11/20/20 Page 6 of 10

that he would be entitled to statutory or equitable tolling. Plaintiff should show cause why his
claims are not barred by the statute of limitations.
2. Property Claims
Even if Plaintiff’s claims regarding his lost mail were not barred by the statute of
limitations, they would fail to state a due process violation. Deprivations of property do not deny
due process as long as there is an adequate post-deprivation remedy. A due process claim will
arise only if there is no such procedure or it is inadequate. See Hudson v. Palmer, 468 U.S. 517,
533 (1984); see also Smith v. Colorado Dept. of Corr., 23 F.3d 339, 340 (10th Cir. 1994)
(“Fourteenth Amendment due process guarantees pertaining to property are satisfied when an
adequate, state postdeprivation remedy exists for deprivations occasioned by state employees.”).
Kansas prisoners have an adequate state post-deprivation remedy. See generally, Sawyer
v. Green, 316 F. App’x 715, 717, 2008 WL 2470915, at *2 (10th Cir. 2008) (finding Kansas
county prisoner could seek relief in state courts to redress alleged deprivation of property).
Plaintiff has failed to allege that an adequate post-deprivation remedy was unavailable. Because
an adequate, state post-deprivation remedy exists, Plaintiff must show cause why his property
claims should not be dismissed for failure to state a claim.
3. Transfer to Max Facility/Administrative Segregation
The Due Process Clause protects against “deprivations of life, liberty, or property; and
those who seek to invoke its procedural protection must establish that one of these interests is at
stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). “A liberty interest may arise from the
Constitution itself, by reason of guarantees implicit in the word ‘liberty,’ . . . or it may arise from
an expectation or interest created by state laws or policies.” Id. (citing Vitek v. Jones, 445 U.S.
480, 493–94 (1980) (liberty interest in avoiding involuntary psychiatric treatment and transfer to

6

Case 5:20-cv-03257-SAC Document 5 Filed 11/20/20 Page 7 of 10

mental institution); Wolff v. McDonnell, 418 U.S. 539, 556–58 (1974) (liberty interest in
avoiding withdrawal of state-created system of good-time credits)).
Liberty interests which are protected by the Due Process Clause are “generally limited to
freedom from restraint which, while not exceeding the sentence in such an unexpected manner as
to give rise to protection by the Due Process Clause of its own force . . . nonetheless imposes
atypical and significant hardship on the inmate in relation to the ordinary incidents of prison
life.” Sandin v. Conner, 515 U.S. 472, 484 (1995) (internal citations omitted). Plaintiff does not
have a constitutional right to a particular security classification or to be housed in a particular
yard. Meachum v. Fano, 427 U.S. 215, 224 (1976); Harbin-Bey v. Rutter, 420 F.3d 571, 577
(6th Cir. 2005) (increase in security classification does not constitute an atypical and significant
hardship because “a prisoner has no constitutional right to remain incarcerated in a particular
prison or to be held in a specific security classification”)).
The Supreme Court has held that “the Constitution itself does not give rise to a liberty
interest in avoiding transfer to more adverse conditions of confinement.” Wilkinson, 545 U.S. at
221–22 (citing Meachum, 427 U.S. at 225 (no liberty interest arising from Due Process Clause
itself in transfer from low-to maximum-security prison because “[c]onfinement in any of the
State’s institutions is within the normal limits or range of custody which the conviction has
authorized the State to impose”)). “Changing an inmate’s prison classification . . . ordinarily
does not deprive him of liberty, because he is not entitled to a particular degree of liberty in
prison.” Sawyer v. Jefferies, 315 F. App’x 31, 34 (10th Cir. 2008) (citing Templeman v. Gunter,
16 F.3d 367, 369 (10th Cir. 1994) (citing Meachum, 427 U.S. at 225)). Plaintiff has not alleged
that his assignment imposed any atypical and significant hardship in relation to the ordinary
incidents of prison life. Cf. Wilkinson, 545 U.S. at 223–24 (finding atypical and significant

7

Case 5:20-cv-03257-SAC Document 5 Filed 11/20/20 Page 8 of 10

hardship in assignment to supermax facility where all human contact prohibited, conversation
not permitted, lights on 24-hours-a-day, exercise allowed for only one hour per day in small
indoor room, indefinite placement with annual review, and disqualification of otherwise eligible
inmate for parole consideration).
Plaintiff does not have a constitutional right to dictate where he is housed, whether it is
which facility or which classification within a facility. See Schell v. Evans, 550 F. App’x 553,
557 (10th Cir. 2013) (citing Meachum, 427 U.S. at 228–29; Cardoso v. Calbone, 490 F.3d 1194,
1197–98 (10th Cir. 2007)). Moreover, jail officials are entitled to great deference in the internal
operation and administration of the facility. See Bell v. Wolfish, 441 U.S. 520, 547–48 (1979).
Plaintiff’s claims regarding his security classification are subject to dismissal for failure to state a
claim.
4. Violations of Policy, Procedure, Rules, Regulations and Statutes
Plaintiff alleges that Defendants violated policies, rules, regulations and statutes.
Plaintiff’s allegations are vague, and he provides no details or factual support for his allegations.
The violation of internal prison rules and regulations does not rise to the level of a constitutional
violation. As the Tenth Circuit has stated:

[N]o reasonable jurist could conclude that [a plaintiff’s] claim that
prison officials deprived him of due process by violating internal
prison regulations rises to the level of a due process violation.
Prison regulations are “primarily designed to guide correctional
officials in the administration of a prison [They are] not designed
to confer rights on inmates….” Sandin v. Conner, 515 U.S. 472,
481-82, 115 S. Ct. 2293, 132 L.Ed.2d 418 (1995).
Brown v. Wyoming Dep’t. of Corrections, 234 F. App’x 874, 878 (10th Cir. 2007); see also,
Brown v. Rios, 196 F. App’x 681, 683 (10th Cir. 2006) (“Where a liberty or property interest has
been infringed, the process which is due under the United States Constitution is that measure by
8

Case 5:20-cv-03257-SAC Document 5 Filed 11/20/20 Page 9 of 10

the due process clause, not prison regulations.”). The violation of a prison regulation does not
state a constitutional violation unless the prison official’s conduct “failed to conform to the
constitutional standard.” Porro v. Barnes, 624 F.3d 1322, 1329 (10th Cir. 2010) (internal
quotation marks omitted) (holding prisoner must establish that violation of a prison policy
necessarily stated a constitutional violation). Plaintiff should show good cause why his claims
should not be dismissed for failure to state a claim.
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) raises
only properly joined claims and defendants; (2) alleges sufficient facts to state a claim for a
federal constitutional violation and show a cause of action in federal court; and (3) 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 and may be dismissed without further notice for failure to state a claim.

1

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 (20-3257-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.

9

Case 5:20-cv-03257-SAC Document 5 Filed 11/20/20 Page 10 of 10

IT IS THEREFORE ORDERED THAT the Court provisionally grants Plaintiff leave
to proceed in forma pauperis. Plaintiff’s motion (Doc. 4) is denied.
IT IS FURTHER ORDERED that Plaintiff is granted until December 18, 2020, 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 December 18, 2020, 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 November 20, 2020, in Topeka, Kansas.

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

10