Kling v. Louie et al
Filing
5
OPINION AND ORDER granting 2 Motion for Leave to Proceed in forma pauperis and Dismissing Case. Signed by U.S. District Judge Roberto A. Lange on 6/19/18. (SLW)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
KARY GENE KLING,
4:I8-CV-04027-RAL
Plaintiff,
OPINION AND ORDER GRANTING
vs.
MOTION TO PROCEED IN FORMA
ED LOUIE,LIEUTENANT AT MIKE DURFEE
STATE PRISON, OFFICIAL CAPACITY;
ROBERT DOOLEY, CHIEF WARDEN AT
MIKE DURFEE STATE PRISON, OFFICIAL
CAPACITY; JEREMY BAKER, CORPORAL
AT MIKE DURFEE STATE PRISON,
OFFICIAL CAPACITY; JOSH KLIMEK,UNIT
MANAGER
AT
MIKE
DURFEE
STATE
PRISON, OFFICIAL CAPACITY; TIFFANY
VOIGT, UNIT COORDINATOR AT MIKE
DURFEE
STATE
PRISON, OFFICIAL
CAPACITY; TAMMY DEJONG, CASE
MANAGER
AT
MIKE
DURFEE
STATE
PRISON, OFFICIAL CAPACITY; TAMMY
DOYLE, UNIT MANAGER AT MIKE
DURFEE
STATE
PRISON, OFFICIAL
CAPACITY; KIM LIPPENCOTT, CASE
MANAGER
AT
MIKE
DURFEE
STATE
PRISON, OFFICIAL CAPACITY; BRIAN
FOLEY, COORDINATOR AT MIKE DURFEE
STATE PRISON, OFFICIAL CAPACITY;
DENNIS DAUGAARD, GOVENOR AT
STATE OF SOUTH DAKOTA, OFFICIAL
CAPACITY;
DENNIS
KAEMINGK,
SECRETARY OF CORRECTIONS AT STATE
OF SOUTH DAKOTA,OFFICIAL CAPACITY;
AND MARTY JACKLEY, ATTORNEY
GENERAL AT STATE OF SOUTH DAKOTA,
OFFICIAL CAPACITY;
Defendants.
PAUPERIS AND DISMISSING CASE
Plaintiff Kary Gene Kling is an inmate at the Mike Durfee State Prison in Springfield,
South Dakota. On March 7, 2018, Kling filed a pro se civil rights lawsuit under 42 U.S.C. § 1983
and requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Doc. 1; Doc. 2.
This Court now has screened his complaint pursuant to 28 U.S.C. § 1915A. For the following
reasons, Kling's motion for leave to proceed in forma pauperis is granted, but his complaint is
dismissed.
I.
FACTS ALLEGED IN THE COMPLAINT^
On November 11, 2017, between 12:00 p.m. and 5:00 p.m., Kling, who apparently was on
parole or a work release program at the time, waited in a holding cell at the Yankton Community
Work Center to take a drug test. Doc. 1 at 9. While waiting, Kling witnessed the drug test of
another inmate administered by Defendant Ed Louie. While conducting that test, Louie allegedly
did not wear gloves,collect an adequate urine sample,or test the sample before directing the inmate
to dump the sample.Id. at 9-10. Kling believed the other inmate's results could have been recorded
as clean or dirty. Id. at 10. After witnessing this incident, Kling became scared to do a urine test
for Louie and refused to submit to his drug test. Id. Kling then received a write-up, was moved to
the special housing unit(SHU)at Mike Durfee State Prison(MDSP),and lost his parole. Id.
While housed in the SHU, Kling confronted Louie. Id. at 10. Kling observed that Louie
was nervous, lying, and stuttering. Id. Louie then visited Kling the next day and tried to explain
that what happened was not criminal. Id. at 11. Louie inquired why Kling was at MDSP and
offered to help Kling get his parole back. Id. at 12. Nothing came ofthe offer. Id.
^ This Court makes no findings offact at this point in the case. The matters set forth in this section
are taken from the factual allegations pleaded in Kling's Complaint, which this Court must take as
true on initial screening. Beck v. Fleur, 257 F.3d 764, 765 (8th Cir. 2001)(citation omitted).
Once released from the SHU,Kling attempted to have the situation investigated. He wrote
more than forty kites to Defendants Josh Klimek, Tiffany Voigt, Tammy Dejong, Tammy Doyle,
Kim Lippencott, Brian Foley, Ed Louie, Robert Dooley, Deputy Warden, and the Associate
Warden. Id. at 10-11. The recipients did not respond to the kites or otherwise speak with Kling
M. at 11. An unknown person, however, asked Kling what he saw. Id. at 10. Kling wrote letters to
the Secretary of Corrections, the Governor, the Attorney General, Prison Central Records, the
Warden, and the Division of Criminal Investigations (DCI). Id. at 12. The recipients did not
respond. Id.
Kling asked Officer Jeremy Baker to speak to the Officer in Charge at MDSP. Id. at 12.
Baker asked why Kling needed to speak to the Officer in Charge and Kling told Baker it was about
Louie. Id. Baker then threatened Kling and called him at rat. Id. Finally, a DCI agent interviewed
Kling and answered Kling's questions about the criminality of altering results of a drug test. Id.
at 13. Kling claims that he remains fearful of urine testing, and the experience has caused him to
huff, starve himself at times and other physical and mental issues. Id. at 14-15.
II.
LEGAL STANDARD
At this stage of the case, this Court must accept the well-pleaded allegations in the
complaint as true and draw all reasonable inferences in favor of the non-moving party,Schriener
V. Quicken Loans, Inc., 11A F.3d 442,444(8th Cir. 2014). Civil rights and pro se complaints must
be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94(2007)(citation omitted); Bediako v.
Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir. 2004). Even with this construction, "a pro se
complaint must contain specific facts supporting its conclusions." Martin v. Sargent, 780 F.2d
1334, 1337(8th Cir. 1985); Ellis v. City ofMinneapolis, 518 F. App'x 502, 504 (8th Cir. 2013).
Civil rights complaints cannot be merely conclusory. Davis v. Hall, 992 F.2d 151, 152(8th Cir.
1993); Parker v. Porter, 221 F. App'x 481,482(8th Cir. 2007).
A complaint"does not need detailed factual allegations ...[but] requires more than labels
and eonclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell
All. Corp. V. Twombly,550 U.S. 544,555(2007)."Ifa plaintiff cannot make the requisite showing,
dismissal is appropriate." Beavers v. Lockhart,755 F.2d 657,663(8th Cir. 1985). Under 28 U.S.C.
§ 1915A, this Court must screen prisoner claims filed in forma pauperis and determine whether
they are(1)"frivolous, malicious, or fail[]to state a claim on which relief may be granted; or(2)
seek[ ]monetary relief from a defendant who is immune from such relief." See also Onstad v.
Wilkinson, 534 F. App'x 581, 582(8th Cir. 2013).
III.
DISCUSSION
A. Motion to Proceed In Forma Pauperis
Under the Prison Litigation Reform Act(PLRA), a prisoner who "brings a civil action or
files an appeal in forma pauperis ... shall be required to pay the full amount of a filing fee."
28 U.S.C.§ 1915(b)(1). The court may, however, accept partial payment ofthe initial filing fee
where appropriate. Therefore,"'[w]hen an inmate seeks pauper status, the only issue is whether
the inmate pays the entire fee at the initiation ofthe proceedings or over a period of time under
an installment plan.'" Henderson v. Morris, 129 F.3d 481, 483 (8th Cir. 1997)(quoting McGore
V. Wrigglesworth, 114 F.3d 601,604(6th Cir. 1997)).
The initial partial filing fee that accompanies an installment plan is calculated according
to 28 U.S.C.§ 1915(b)(1), which requires a payment of20 pereent of the greater of:
(A)
(B)
the average monthly deposits to the prisoner's account; or
the average monthly balanee in the prisoner's account for the 6-month
period immediately preceding the filing ofthe complaint or notice of
appeal.
Plaintiff has reported average monthly deposits to his prisoner trust aceount of$5.67 and an
average monthly balance of negative $51.55. Doc. 3. Based on this information, the court finds
plaintiff is indigent and grants him leave to proceed in forma pauperis.
Plaintiff must "make monthly payments of20 percent of the preceding month's income
credited to the prisoner's account." 28 U.S.C.§ 1915(b)(2). The statute places the burden on the
prisoner's institution to collect the additional monthly payments and forward them to the court
as follows:
After payment ofthe initial partial filing fee, the prisoner shall be required to make
monthly payments of 20 percent of the preceding month's income credited to the
prisoner's account. The agency having custody of the prisoner shall forward
payments from the prisoner's account to the clerk ofthe court each time the amount
in the account exceeds $10 until the filing fees are paid.
28 U.S.C.§ 1915(b)(2). Therefore, after payment in full of the initial partial filing fee, the
remaining installments will be collected pursuant to this procedure.
The clerk ofthe court will send a copy ofthis order to the appropriate financial official
at plaintiffs institution. Plaintiff will remain responsible for the entire filing fee, as long as he is
a prisoner, even if the case is dismissed at some later time. See In re Tyler, 110 F.3d 528,
529-30(8th Cir. 1997).
B. Screening Under § 1915A
Kling raised a single count against defendants in his complaint and labeled the claim "threat
to safety." Doe. 1 at 8. The United States Supreme Court has interpreted the Constitution to require
prisons to provide "reasonable safety"for prisoners. Farmer v. Brennan,511 U.S. 825,844(1994).
To prevail on a failure to protect claim, a prisoner must demonstrate two things. First, he must
show that he is incarcerated under conditions posing a substantial risk of serious harm. Spruce v.
Sargent, 149 F.3d 783, 785 (8th Cir.1998). Second, an inmate must demonstrate that prison
officials were deliberately indifferent to that risk. Id. "Deliberate indifference requires a showing
that the official knew the risk existed, but disregarded it." Farmer, 511 U.S. at 837.
Kling fails to demonstrate that he is incarcerated under conditions posing a substantial risk
of serious harm. Kling alleges he jeceived verbal threats from Baker and talked with Louie. Doc.
1 at 3. Verbal threats made by a state-actor generally are not sufficient to state a § 1983 claim.
Martin v. Sargent,780 F.2d 1334,1338(8th Cir. 1985)."'Mere threatening language and gestures'
ofa state actor'do not, even iftme,amount to constitutional violations.'"Hopson v. Fredericksen,
961 F.2d 1374, 1378 (8th Cir. 1992)(quoting McFadden v. Lucus, 713 F.2d 143, 146 (5th Cir.
1983)). The United States Court of Appeals for the Eighth Circuit has recognized a narrow
exception for conduct that amounts to "wanton act[s] of cruelty" that can be categorized as
"brutal." Burton v. Livingston, 791 F.2d 97(8th Cir. 1986). In Burton, the Eighth Circuit held that
a guard who pointed a pistol at a prisoner and stated "nigger run so I can blow your Goddamn
brains out, I want you to run so I'll be justified" could be held accountable under § 1983. Id. at 99.
But Kling's allegations do not even come close to that level. He has not alleged that Louie or Baker
had a weapon or even specified the nWre of the threat. Kling alleges that Baker said "You know
you can't win against us,""you know what happens to rats," "don't make yourself a target," and
"ain't nobody going to do shit for you." Doc. 1 at 12. The statements attributed to Louie in the
complaint are not even threatening. All Kling has alleged is that Baker threatened him and certain
defendants discouraged him fiom reporting what Louie had done. Id. at 2. Meanwhile, Kling was
filing intemal "kites" reporting the incident and related matters over 40 times. Id. at 12. These are
r
insufficient allegations to maintain a § 1983 claim against any ofthe defendants.
Kling complains that the defendants failed to respond to his grievances and letters or
otherwise properly investigate the incident. In Buckley v. Barlow, 997 F.2d 494 (8th Cir. 1993),
Buckley,a prisoner, alleged that defendants violated his constitutional rights because they "refused
to pick up his completed grievance forms,"and supervisors"condoned"this"by refusing to answer
Buckley's letters or investigate his grievances." at 495. The Eighth Circuit concluded that Buckley
failed to state a claim "because no constitutional right was violated by the defendants' failure, if
any, to process all ofthe grievances he submitted for consideration." Id. (citing Flick v. Alba, 932
F.2d 728, 729 (8th Cir. 1991) (per curiam) (federal grievance regulations providing for
administrative remedy procedure do not create liberty interest in access to that procedure)).
"[DJefendants' failure to process any of Buckley's grievances, without more," was "not actionable
under section 1983." Id. Similarly, in Moore v. Thurber, 105 F.3d 663 (8th Cir. 1997), the Eighth
Circuit dismissed allegations that defendantjail officials continuously denied a prisoner's requests
for grievance forms, that the jail director knew about this interference and did nothing, and that
the investigating officer covered up the issue by "failing to investigate thoroughly." at * 1. The
court affirmed the district court's dismissal of these claims as frivolous. Id. (citing Buckley, 997
F.2d at 495). Relatedly, the Eighth Circuit has held that prisoners fail to state a claim by alleging
prison officials failed to process their grievances, see e.g. Hodgson v. Fabian, 378 F. App'x 592,
594 (8th Cir. 2010); Day v. Corr. Med. Servs., 281 F. App'x 624 (8th Cir. 2008), and that the
failure to investigate grievances does not rise to a constitutional violation. King v. Houston,556 F.
App'x 561, 563 (8th Cir. 2014). Other district courts within the Eighth Circuit have dismissed
similar claims. E.g. Townsend v. Singleton, No. 4:12-CV-04072, 2013 WL 501441, at *3(W.D.
Ark. Jan. 3,2013),report and recommendation adopted. No. 12-CV-4072,2013 WL 501112(W.D.
Ark. Feb. 11, 2013); Webb v. Smartwood, No. 07-4017-CV-C-NKL, 2009 WL 2606237, at *5
(W.D. Mo. Aug.21, 2009). Even ifthe defendants failed to investigate Kling's "kites," they would
not be liable under § 1983, because failure to investigate the grievance alone is not a sufficient
basis for liability. King, 556 F. App'x at 563.
Finally, to the extent that Kling claims his safety is threatened by Louie's alleged
tampering with another inmate's urine sample, Kling fails to state a claim upon which relief may
be granted. Though what Louie allegedly did with the other inmate's urine sample clearly was
wrong, Kling does not have standing to bring such a claim. One essential aspect of the "Cases"
or "Controversies" requirement of Article III ofthe Constitution "is that any person invoking the
power ofa federal court must demonstrate standing to do so."Hollingsworth v. Perry, 133 S. Ct.
2652, 2661 (2013). "This requires the litigant to prove that he has suffered a concrete and
particularized injury. . . ." Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992)). "In other words, for a federal court to have authority under the Constitution to settle a
dispute,the party before it must seek a remedy for a personal and tangible harm." Id. Kling carmot
prove he suffered "personal" harm when Louie discarded another inmate's urine sample, because
it was not Kling's drug test that was tampered with. Indeed, Kling refused to participate in any
urine test at that time. Doc. 1 at 10. Kling lacks standing to maintain a lawsuit alleging that Louie
violated another inmate's rights or violated procedures ofthe prison when handling a urine sample
of another inmate. See Hodak v. City of St. Peters, 535 F.3d 899, 904 (8th Cir. 2008)("As a
general rule, a plaintiff may only assert his own injury in fact and cannot rest his claim to relief
on the legal rights or interests ofthird parties.")(internal quotation marks omitted). Accordingly,
Kling's single count of threat to safety is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)
and 1915A(b)(l)for failure to state a claim on which relief may be granted.
C. Strike Under 28 U.S.C.§ 1915(g)
Section 1915(g) states:
8
In no event shall a prisoner bring a civil action or appeal ajudgment in a civil action
or proceeding under this section if the prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any facility, brought an action or appeal in a court
ofthe United States that was dismissed on the grounds that it is frivolous, malicious,
or fails to state a claim upon which relief may be granted, unless the prisoner is
under imminent danger of serious physical injury.
The court finds that Kling fails to state a claim upon which relief may be granted, and his claim
is dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l). Therefore, Kling is
assessed a strike under § 1915(g)for filing this complaint. Accordingly, it is
ORDERED that Kling's motion for leave to proceed in forma pauperis(Doe. 2)is
granted. It is further
ORDERED that Kling's institution will collect the additional monthly payments in the
manner set forth in 28 U.S.C.§ 1915(b)(2), quoted above, and will forward those installments to
the court until the $350 filing fee is paid in full. It is further
ORDERED that the clerk ofthe court is directed to send a copy ofthis order to the
appropriate official at plaintiffs institution. It is further
ORDERED that Kling's complaint is dismissed without prejudice. It is further
ORDERED that this action constitutes a strike against Kling for the purposes ofthe
three-strike rule under 28 U.S.C. § 1915(g).
DATED this
day of June, 2018.
BY THE COURT:
ROBERTO A. LANGI
UNITED STATES DISTRICT JUDGE
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