Bohanon (ID 30993) v. Keen

Filing 5

NOTICE AND ORDER TO SHOW CAUSE ENTERED: Petitioner is granted until and including October 8, 2021, in which to file a complete and proper civil rights complaint in compliance with the directions in this order or to file a notice to the Court that he does not intend to do so. The failure to file at least one of these documents will result in the action being dismissed without further notice. Signed by U.S. Senior District Judge Sam A. Crow on 9/7/2021. Mailed to pro se party Cledith Bohanon by regular mail. (jal)

Case 5:21-cv-03203-SAC Document 5 Filed 09/07/21 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CLEDITH BOHANON,
Petitioner,
v.

CASE NO. 21-3203-SAC

PATTI J. KEEN,
Respondent.

NOTICE AND ORDER TO SHOW CAUSE

This matter comes before the Court on Petitioner’s petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.)
For the reasons stated below, the Court will direct Petitioner to
inform the Court whether he wishes to proceed with this action under
42 U.S.C. § 1983.
Background
Petitioner, an inmate at

Hutchinson Correctional Facility

(HCF) in Hutchinson, Kansas, proceeds pro se. In July 2017, HCF
mailroom staff opened Petitioner’s legal mail outside his presence.
See Bohanon v. Keen, 2020 WL 4378017, *1 (Kan. Ct. App. 2020)
(unpublished opinion), rev. denied March 12, 2021. In December 2017,
Petitioner sought monetary relief through prison administrative
remedies and received an apology but no further compensation. Id.
Approximately 10 months later, he filed a pro se petition in state
district court, naming as defendant the mailroom supervisor, Patti
Keen, who is the respondent in this action. See id. In his petition,
Petitioner “challeng[ed] the Department of Corrections’ response”
and “alleged the prison staff had violated his constitutional rights

Case 5:21-cv-03203-SAC Document 5 Filed 09/07/21 Page 2 of 6

by

opening

compensatory

the
and

letters

from

punitive

his

attorney.”

damages,

injunctive

Id.
and

He

sought

declaratory

relief, and recovery of his legal costs. Id.
The Department of Corrections moved to dismiss the petition,
characterizing the claims as claims for property loss and arguing
that

Petitioner

had

failed

to

exhaust

the

appropriate

administrative remedies. Id. at *2. The district court agreed and
dismissed the petition for lack of jurisdiction. Id. When Petitioner
appealed the dismissal, the Kansas Court of Appeals (KCOA) construed
the petition as one brought under K.S.A. 60-1501, which “is ‘a
procedural means through which a prisoner may challenge the mode or
conditions of his or her confinement, including administrative
actions of the penal institution.’” Id. (quoting Safarik v. Bruce,
20 Kan. App. 2d 61, 66-67 (Kan. Ct. App. 1994)). Although it held
that the district court had erred in dismissing for failure to
exhaust administrative remedies, the KCOA nevertheless affirmed the
dismissal because the petition was not filed within 30 days of the
final administrative action as required by K.S.A. 2019 Supp. 601501(b). Id. at *2.
The Kansas Supreme Court (KSC) denied Petitioner’s petition
for review. Petitioner then filed an original petition for writ of
habeas corpus in the KSC, which was dismissed on April 23, 2021;
the KSC denied Petitioner’s subsequent motion for reconsideration
on August 2, 2021. Kansas Clerk of the Appellate Courts Online Case
Search, Bohanon v. Keen, Case No. 123,800.
On September 1, 2021, Petitioner filed the petition for writ
of habeas corpus that is currently before this Court. (Doc. 1.) In
doing so, Petitioner used a form for filing a petition for writ of

Case 5:21-cv-03203-SAC Document 5 Filed 09/07/21 Page 3 of 6

habeas corpus under 28 U.S.C. § 2241. As his grounds for relief, he
asserts that the Kansas courts—the district court, the KCOA, and
the KSC—misconstrued his pleading as one arising under K.S.A. 601507, when it was intended to bring a claim under the Kansas Tort
Claims Act (KTCA) pursuant to K.S.A. 75-5103. Because the KTCA has
a two-year statute of limitations, he claims his state-court action
was

timely.

(Doc.

1,

p.

4-5.)

Petitioner

seeks

“declaratory,

monetary, and injunctive relief,” including $15,000.00 in damages.
Id. at 6.
In addition to the petition, Petitioner filed a memorandum of
law in which he asserts “that the defendant, Patti J. Keen, mailroom
clerk, . . . violated his civil rights by unlawfully opening his
legal mail.” (Doc. 2, p. 1.) He alleges that opening his legal mail
outside

his

presence

violated

his

First

Amendment

right

to

confidential communications. Id. at 1-2. See also Ramos v. Lamm,
639 F.2d 559, 582 (10th Cir. 1980) (holding that unjustified opening
of

prisoners’

presence

mail

violated

memorandum

of

to

their

attorneys

the

First

and

law

also

outside

Fourteenth

reflects

the

prisoners’

Amendments).

Petitioner’s

desire

The
for

declaratory, injunctive, and monetary relief. Id. at 2.
Because Petitioner did not pay a filing fee, the Court issued
a notice instructing him to either pay the statutory filing fee of
$5.00 or submit a motion to proceed in forma pauperis. (Doc. 4.)
28 U.S.C. § 2241 Petition
To

obtain

federal

habeas

corpus

relief,

a

prisoner

must

demonstrate that he or she “is in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2241(c)(3). A petition for writ of habeas corpus pursuant to 28

Case 5:21-cv-03203-SAC Document 5 Filed 09/07/21 Page 4 of 6

U.S.C. § 2241 “‘[is] used to attack the execution of a sentence .
. . .” Sandusky v. Goetz, 944 F.3d 1240, 1246 (10th Cir. 2019); see
also Mayes v. Dowling, 780 Fed. Appx. 599, 601 (10th Cir. 2019)
(unpublished) (“In this circuit, a state prisoner may challenge the
execution of his state sentence via a § 2241 petition.”). In other
words, a petition properly brought under § 2241 challenges “the
fact or duration of a prisoner’s confinement and seeks the remedy
of immediate release or a shortened period of confinement.” McIntosh
v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997).
The information currently before the Court does not indicate
that Petitioner challenges the execution of his state sentence.
Rather, he seeks monetary, declaratory, and injunctive relief due
to the alleged violation of his civil rights in the HCF mailroom.
Thus, it appears that despite his characterization of this action
as one under 28 U.S.C. § 2241, the relief Petitioner seeks is not
available in a federal habeas action.
42 U.S.C. § 1983
A civil rights action under 42 U.S.C. § 1983 is the proper
avenue

by

which

a

prisoner

may

challenge

unconstitutional

conditions of confinement. “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, 48-49 (1988)(citations
omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir.
1992). Under Local Rule 9.1(a), however, a prisoner’s civil rights
complaint seeking relief under 42 U.S.C. § 1983 must be filed on an
official form. See D. Kan. Rule 9.1(a). The Court will direct the

Case 5:21-cv-03203-SAC Document 5 Filed 09/07/21 Page 5 of 6

clerk to send Petitioner the appropriate form and, if Petitioner
wishes to do so, he may submit a complete and proper complaint under
this case number (21-3203) containing the claims for which relief
may be sought under 42 U.S.C. § 1983.
The Court advises Petitioner that if he chooses to file a civil
rights complaint and pursue his claims under § 1983, he must either
pay the full related filing fee of $402.00 or file a request to
proceed

in

forma

pauperis

with

the

accompanying

required

documentation. Even if Petitioner is granted in forma pauperis
status, he will nevertheless be required to pay the full amount of
the filing fee, in installments. See 28 U.S.C. § 1915(a), (b).
Conclusion
The petition filed in this case, which is brought pursuant to
28 U.S.C. § 2241, seeks relief not available under that statute.
Because the petition appears to allege civil rights violations,
Petitioner will be allowed to submit a complaint pursuant to 42
U.S.C. § 1983, on the proper forms, under this case number. If
Petitioner does not wish to pursue claims under 42 U.S.C. § 1983 in
this

action,

he

shall

inform

the

Court,

in

writing,

of

that

decision. A failure to comply with this order will result in the
matter being dismissed without further prior notice to Petitioner.
IT IS THEREFORE ORDERED that Petitioner is granted until and
including October 8, 2021, in which to file a complete and proper
civil rights complaint in compliance with the directions in this
order or to file a notice to the Court that he does not intend to
do so. The failure to file at least one of these documents will
result in the action being dismissed without further notice. The
clerk of court shall transmit a form 1983 complaint to Petitioner.

Case 5:21-cv-03203-SAC Document 5 Filed 09/07/21 Page 6 of 6

IT IS SO ORDERED.
DATED:

This 7th day of September, 2021, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge