Thomas v. United States of America et al

Filing 10

MEMORANDUM AND ORDER ENTERED: This action is dismissed without prejudice due to improper venue. The Order (ECF No. 7 ) granting Plaintiff leave to proceed in forma pauperis and assessing an initial partial filing fee is rescinded. Plaintiff's pending motions (ECF Nos. #4 , #8 , and #9 ) are denied as moot. Signed by U.S. Senior District Judge Sam A. Crow on 03/31/21. Mailed to pro se party Terence L. Thomas by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TERENCE L. THOMAS,
Plaintiff,
v.

CASE NO. 21-3059-SAC

UNITED STATES OF AMERICA, et al.,
Defendants.

MEMORANDUM AND ORDER
Plaintiff, an inmate at Devens-FMC, Federal Medical Center, in Ayer, Massachusetts, has
filed a pro se civil rights complaint. Plaintiff names as defendants the United States of America;
A. Boncher, Warden of Devens-FMC; and FNU Arpano, Unit Manager. Devens-FMC is located
in the District of Massachusetts. 28 U.S.C. §101.
28 U.S.C. § 1391(b) provides that a civil action may be brought in a judicial district where
any defendant resides or a district where a substantial part of the events giving rise to the claim
occurred. Based on a review of the complaint, the District of Kansas is not a proper venue for this
action because no defendant resides in the District of Kansas, nor did any of the events giving rise
to the claim occur in the District of Kansas.
28 U.S.C. § 1406(a) provides that a district court in which is filed a case laying venue in
the wrong district shall dismiss, or if it be in the interest of justice, transfer such case to any district
or division in which it could have been brought.

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Because it appears from the Complaint that Plaintiff fails to state a claim for violation of
his constitutional rights as discussed below, the matter is dismissed without prejudice rather than
transferred.
Plaintiff resides on a mental health unit at Devens-FMC. He alleges he has been denied
the use of the law library except for one to two hours on Fridays. He further complains that the
microwave on his unit broke in November of 2020 and has not been replaced, while other general
population units have had microwaves replaced repeatedly.

Plaintiff does not state which

constitutional right he alleges has been violated.
It is well-established that a prison inmate has a constitutional right of access to the courts.
However, it is equally well-settled that in order “to present a viable claim for denial of access, the
inmate must allege and prove prejudice arising from 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.
To state a denial of access claim due to lack of legal resources, the inmate must allege
something more than that the prison’s or jail’s law library or legal assistance program is
inadequate. He must “go one step further and demonstrate that the alleged shortcomings in the
library or legal assistance program hindered his efforts to pursue a legal claim,” causing him
“actual injury.” Lewis, 518 U.S. at 348, 350. In order to satisfy the actual injury requirement, the
plaintiff must show that, by denying plaintiff access to the law library, prison officials frustrated
or impeded the plaintiff’s ability to file or litigate a non-frivolous action. Id. at 351, 354–55; see

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Faircloth v. Schwartz, 2014 WL 446663 (D. Colo. Sept. 10, 2014); Peterson v. Shanks, 149 F.3d
1140, 1145 (10th Cir. 1998)(“To present a viable claim for denial of access to courts, however, an
inmate must allege and prove prejudice arising from Defendants’ actions.”). He may allege actual
prejudice to contemplated or existing litigation, such as the inability to meet a filing deadline or to
present a claim, or that a nonfrivolous legal claim has been dismissed, frustrated or impeded. Id.
at 350, 353.
Plaintiff has not stated a claim for violation of his right of access to the courts because he
has not alleged any actual prejudice resulting from his limited law library time.
As for Plaintiff’s complaint about the unit microwave, the Eighth Amendment requires
prison and jail officials to provide humane conditions of confinement guided by “contemporary
standards of decency.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). The Supreme Court has
acknowledged that the Constitution “‘does not mandate comfortable prisons,’ and only those
deprivations denying ‘the minimal civilized measure of life’s necessities’ are sufficiently grave to
form the basis of an Eighth Amendment violation.” Wilson v. Seiter, 501 U.S. 294, 298 (1991).
Indeed, prison conditions may be “restrictive and even harsh.” Rhodes v. Chapman, 452 U.S. 337,
349 (1981). “Under the Eighth Amendment, (prison) officials must provide humane conditions of
confinement by ensuring inmates receive the basic necessities of adequate food, clothing, shelter,
and medical care and by taking reasonable measures to guarantee the inmates’ safety.” McBride
v. Deer, 240 F.3d 1287, 1291 (10th Cir. 2001); Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th
Cir. 1998); Shannon v. Graves, 257 F.3d 1164, 1168 (10th Cir. 2001). The lack of a microwave
is simply not a deprivation of constitutional dimension.

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IT IS THEREFORE ORDERED that this action is dismissed without prejudice due to
improper venue.
IT IS FURTHER ORDERED that the Order (ECF No. 7) granting Plaintiff leave to
proceed in forma pauperis and assessing an initial partial filing fee is rescinded.
IT IS FURTHER ORDERED that Plaintiff’s pending motions (ECF Nos. 4, 8, and 9) are
denied as moot.
IT IS SO ORDERED.
DATED: This 31st day of March, 2021, at Topeka, Kansas.

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

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