Dudley (ID 91359) v. Simon et al

Filing 5

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE ENTERED: The Court provisionally grants Plaintiff's motion for leave to proceed in forma pauperis at Doc. #2 . Plaintiff's motion for temporary restraining order and/or preliminary injunction (Doc. #4 ) is denied. Plaintiff is granted until August 13, 2021, 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. Signed by Senior U.S. District Judge Sam A. Crow on 07/16/21. Mailed to pro se party James Richard Dudley by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JAMES RICHARD DUDLEY,
Plaintiff,
v.

CASE NO. 21-3127-SAC

(FNU) SIMON, et al.,
Defendants.
MEMORANDUM AND ORDER
AND ORDER TO SHOW CAUSE
Plaintiff James Richard Dudley 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.
1. Nature of the Matter before the Court
Plaintiff brings this pro se civil rights complaint under 42 U.S.C. § 1983. Plaintiff is in
custody at the Hutchinson Correctional Facility in Hutchinson, Kansas (“HCF”). The Court
provisionally grants Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 2).
Plaintiff alleges in his Complaint (Doc. 1) that he is being denied due process in his
disciplinary proceedings. Plaintiff alleges that Defendant Simon was conducting Plaintiff’s
disciplinary hearing on May 14, 2021. Plaintiff alleges that because the reporting officer could
not be present at the hearing, Simon called the reporting officer on the phone but refused to put
the call on speaker phone. Plaintiff alleges that his right to due process was and is still being
violated. Plaintiff states that he has not sought administrative relief yet, because he must wait until
he receives his DR disposition. (Doc. 1, at 5.)
Plaintiff names as defendants: Disciplinary Hearing Officer (fnu) Simon; and HCF

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Warden Dan Schnurr.

Plaintiff seeks a temporary restraining order and/or a preliminary

injunction, compensatory damages, punitive damages and nominal damages. Id. at 6.
Plaintiff has also filed a motion for temporary restraining order or preliminary injunction
(Doc. 4). In the motion, Plaintiff alleges that at his disciplinary hearing he was found guilty of
various offenses and received ten days of disciplinary segregation (which was suspended), thirty
days of restriction of privileges, and a $10.00 fine. Id. at 2. Plaintiff states that he has not
exhausted his administrative remedies yet. Id.
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
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

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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 ‘entitle[ment] 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

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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
“The Fourteenth Amendment prohibits states from depriving citizens of liberty without due
process of law.” Wilson v. Jones, 430 F.3d 1113, 1117 (10th Cir. 2005). This guarantee applies
to prison inmates, but “[p]rison disciplinary proceedings are not part of a criminal prosecution,
and the full panoply of rights due a defendant in such proceedings does not apply.” Wolff v.
McDonnell, 418 U.S. 539, 556 (1974). The Supreme Court has established that protected liberty
interests are at issue in the prison setting only when an inmate is subjected to (1) conditions that
“impose[ ] atypical and significant hardship on the inmate in relation to the ordinary incidents of
prison life” or (2) disciplinary actions that “inevitably affect the duration of his sentence.”
Harrison v. Morton, 490 F. App’x. 988, 992 (10th Cir. 2012) (quoting Sandin v. Conner, 515 U.S.
472, 484, 487 (1995)).
Plaintiff does not allege the loss of good conduct time and acknowledges that his
disciplinary proceeding has not been completed through administrative exhaustion. See Doc. 1, at
5. Challenges to prison disciplinary proceedings affecting the duration of a sentence must be raised
in a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Abdulhaseeb v. Ward,
173 F. App’x 658, 659 n.1 (10th Cir. 2006) (citing McIntosh v. United States Parole Comm’n, 115
F.3d 809, 811 (10th Cir. 1997) (petitions under § 2241 are used to attack the execution of a
sentence, including the deprivation of good-time credits and other prison disciplinary matters);
Brown v. Smith, 828 F.2d 1493, 1495 (10th Cir. 1987) (“If [the petitioner] can show that his due

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process rights were violated in the subject disciplinary proceedings, then § 2241 would be the
appropriate remedy to use to restore his good time credits.”).
Section 1983 is not applicable to “challenges to punishments imposed as a result of prison
disciplinary infractions,” unless the disciplinary conviction has already been invalidated. Cardoso
v. Calbone, 490 F.3d 1194, 1199 (10th Cir. 2007). The Supreme Court has made clear that “a state
prisoner’s claim for damages is not cognizable under 42 U.S.C. § 1983 if ‘a judgment in favor of
the plaintiff would necessarily imply the invalidity of his conviction or sentence,’ unless the
prisoner can demonstrate that the conviction or sentence has previously been invalidated.”
Edwards v. Balisok, 520 U.S. 641, 643 (1997) (quoting Heck v. Humphrey, 512 U.S. 477, 487
(1994)). This rule applies not only when the prisoner challenges his conviction but also when he
challenges findings of guilt of prison disciplinary infractions. Balisok, 520 U.S. at 648.
Plaintiff has not alleged that his disciplinary conviction affected the duration of his
sentence. Plaintiff has not asserted that he was subjected to conditions that imposed atypical and
significant hardship on him in relation to the ordinary incidents of prison life. Thus, even if his
§ 1983 claim for damages arising from the denial of due process is not barred by Heck, dismissal
of it is appropriate for failure to state a claim.
IV. Motion for TRO/Preliminary Injunction
Plaintiff has filed a motion for a temporary restraining order and preliminary injunction,
seeking a Court order restraining Defendants from punishing Plaintiff pending the outcome of his
disciplinary appeal of his prison disciplinary hearing or his § 1983 action. (Doc. 4, at 1.) Plaintiff
also seeks to restore all of his privileges, remove his restrictions, and to receive a new disciplinary
hearing. Id. at 10.

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To obtain a preliminary injunction, the moving party must demonstrate four things: (1) a
likelihood of success on the merits; (2) a likelihood that the movant will suffer irreparable harm in
the absence of preliminary relief; (3) that the balance of the equities tip in the movant’s favor; and
(4) that the injunction is in the public interest. Little v. Jones, 607 F.3d 1245, 1251 (10th Cir.
2010). “[A] showing of probable irreparable harm is the single most important prerequisite for the
issuance of a preliminary injunction.” Dominion Video Satellite, Inc. v. Echostar Satellite Corp.,
356 F.3d 1256, 1260 (10th Cir. 2004).
A preliminary injunction is “an extraordinary remedy that may only be awarded upon a
clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 22 (2008). A preliminary injunction is appropriate only when the movant’s right
to relief is clear and unequivocal. Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005).
Moreover, a federal court considering a motion for preliminary injunctive relief affecting the
conditions of a prisoner’s confinement must give “substantial weight to any adverse impact on
public safety” and on prison operation. 18 U.S.C. § 3626(a)(2). Finally, a mandatory preliminary
injunction, such as the one sought by Plaintiff, which requires the non-moving party to take
affirmative action, is disfavored and therefore requires the moving party to make a heightened
showing of the four factors above. Little, 607 F.3d at 1251. Because preliminary injunctions and
TRO’s are drastic remedies—“the exception rather than the rule—plaintiffs must show that they
are clearly and unequivocally entitled to relief.” Adrian v. Westar Energy, Inc., No. 11-1265-KHV,
2011 WL 6026148, at *3 (D. Kan. 2011) (citations omitted).
The Court finds that Plaintiff has not met his burden to make a heightened showing that
entry of a preliminary injunction is warranted; he has not demonstrated a likelihood of success on
the merits such that his right to relief is clear and unequivocal. The motion is denied.

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V. Response Required
Plaintiff is required to show good cause why his Complaint should not be dismissed for the
reasons stated herein. Failure to respond by the deadline may result in dismissal of this case
without further notice for failure to state a claim.
IT IS THEREFORE ORDERED THAT the Court provisionally grants Plaintiff’s
motion for leave to proceed in forma pauperis at Doc. 2.
IT IS FURTHER ORDERED that Plaintiff’s motion for temporary restraining order
and/or preliminary injunction (Doc. 4) is denied.
IT IS FURTHER ORDERED that Plaintiff is granted until August 13, 2021, 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 SO ORDERED.
Dated July 16, 2021, in Topeka, Kansas.
S/ Sam A. Crow
SAM A. CROW
SENIOR U. S. DISTRICT JUDGE

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