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Milo v. Suro

United States District Court, Tenth Circuit

August 14, 2013

STEFANY SURO, et al., Defendants.


Sam A. Crow, U.S. Senior District Judge

This pro se civil complaint was filed pursuant to 42 U.S.C. § 1983 by an inmate of the Hutchinson Correctional Facility (HCF), Hutchinson, Kansas. Plaintiff seeks millions of dollars in damages based upon two counts in his complaint: (1) sexual misconduct and (2) defamation of character. Having examined the materials filed, the court finds that plaintiff has made no attempt to satisfy the filing fee prerequisites and that there are other threshold deficiencies in the complaint. Mr. Milo is given time to satisfy the filing fee and cure the deficiencies.


The fee for filing a civil complaint is $400.00, which includes the statutory fee of $350.00 and an administrative fee of $50.00; or for one granted leave to proceed in forma pauperis the fee is $350.00. Mr. Milo has neither paid the fee nor submitted a motion to proceed without Prepayment of Fees. This action may not proceed until the filing fee is satisfied in one of these two ways. 28 U.S.C. § 1915 requires that a prisoner seeking to bring an action without prepayment of fees submit a motion on court-approved forms that contains an affidavit described in subsection (a)(1), together with a “certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the six-month period immediately preceding the filing” of the action “obtained from the appropriate official of each prison at which the prisoner is or was confined.” 28 U.S.C. § 1915(a)(2). Local court rule requires that this motion be submitted upon court-approved forms. The clerk shall be directed to provide plaintiff with forms for filing a proper motion under 28 U.S.C. § 1915(a).

Plaintiff is reminded that under 28 U.S.C. § 1915(b)(1), being granted leave to proceed without prepayment of fees does not relieve him of the obligation to pay the full filing fee. Instead, it entitles him to pay the fee over time through payments automatically deducted from his inmate trust fund account as funds become available pursuant to 28 U.S.C. § 1915(b)(2).[1] If Mr. Milo does not satisfy the filing fee within the time prescribed by the court, this action may be dismissed without prejudice and without further notice.


Plaintiff names as defendants Stefany Suro, Unit Team/CC II, HCF and “Hutchinson Correctional Facility (Sam Cline).” As the factual background for his complaint, Mr. Milo alleges as follows. For up to a month he had a “mutual relationship” with defendant Suro, while she was an employee at the HCF. This relationship involved fondling and kissing, and plaintiff received “sexual material” from defendant Suro. After Suro told plaintiff that they had to end their relationship, Mr. Milo wrote a complaint to the Warden, the Secretary of Corrections, and to Mental Health at HCF revealing the details of their relationship. He was placed under investigation. The investigation favored defendant Suro. It was determined that plaintiff was “lying and just blowing smoke” because he did not “keep a log” and know exact dates.

Plaintiff received a disciplinary report (DR) for “Sexually Explicit Materials” and pled guilty to this charge. The Kansas Department of Corrections (KDOC) maintains a website, “KASPER, ” which lists the DRs of each KDOC offender. The Disciplinary Board at the HCF “posted” plaintiff’s DR on KASPER as “Sex Explicit Mtrl, n/SexOfndr.” The entry is dated May 27, 2013. Plaintiff is not a sex offender. He asked “them” in May and on June 24, 2013, to change the KASPER entry, to no avail. The entry can be read by anyone, and his family believes he has been having sex with men at the HCF.

Plaintiff asserts that he has “a right for sexual misconduct not to happen” to him and a right to be protected. He seeks damages of 3.1 million dollars “and punitive damages” for sexual misconduct, pain and suffering, depression, and defamation of character.


Because Mr. Milo is a prisoner, the court is required by statute to screen his complaint and to dismiss the complaint or any portion thereof that is frivolous, fails to state a claim upon which relief may be granted, or seeks relief from a defendant immune from such relief. 28 U.S.C. § 1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(B). “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). 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). However, 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). 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). The complaint must offer “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To avoid dismissal, the complaint’s “factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Put another way, there must be “enough facts to state a claim to relief that is plausible on its face.” Id. at 570.


The court has screened the complaint and finds the following deficiencies. First, plaintiff does not assert the violation of a constitutional right. Instead, he claims “sexual misconduct” by defendant Suro and defamation of character by unnamed HCF officials, which is not a constitutional violation. As noted, in order 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.” The court is not free to supply a constitutional theory for plaintiff’s claim. Plaintiff implies that he was not protected from sexual misconduct. However, he does not allege facts showing that he made his need for protection known to no avail.

Second, it appears from the face of the complaint that Mr. Milo has not exhausted administrative remedies on at least one and possibly both of his claims. Under 42 U.S.C. § 1997e(a), “a prisoner must exhaust his administrative remedies prior to filing a lawsuit regarding prison ...

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