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Jones v. State

United States District Court, Tenth Circuit

August 21, 2013

JOSEPH LEE JONES, Plaintiff,
v.
STATE OF KANSAS, et al., Defendants

MEMORANDUM AND ORDER

Sam A. Crow U.S. Senior District Judge

The court previously screened the original complaint filed herein and ordered plaintiff to cure the deficiencies set forth in its screening order as well as provide the financial information required by federal law to support his motion to proceed without prepayment of fees. The matter is now before the court for consideration of plaintiff’s compliance with the screening order, screening of plaintiff’s Amended Complaint, and determination of plaintiff’s numerous motions. Having considered all materials submitted by Mr. Jones, the court concludes that the Amended Complaint fails to state a federal constitutional claim because plaintiff’s own allegations and exhibits show that the letters in question were not “legal mail” and fail to show that he was denied access to the courts. Furthermore, plaintiff again fails to name proper defendants. Accordingly, this action is dismissed for failure to state a claim and as frivolous pursuant to 28 U.S.C. § 1915A(a) and (b) and 28 U.S.C. § 1915(e)(2)(B).

I. FEES ASSESSED

28 U.S.C. § 1915(b)(1) requires the court to assess an initial partial filing fee of twenty percent of the greater of the average monthly deposits or average monthly balance in the prisoner’s account for the six months immediately preceding the date of the filing of a civil action. Having examined the records of plaintiff’s account, the court finds the average monthly deposit to his account was $99.00. Information on monthly balances is not provided. The court therefore assesses an initial partial fee of $19.50, which is twenty percent of the average monthly deposit rounded to the lower half dollar. Plaintiff must immediately submit this initial partial fee to the court. Plaintiff’s motions to proceed without prepayment of the entire fee are granted, and he is assessed the remainder of the $350.00 filing fee. He is thus allowed to pay that remainder in installments automatically deducted from his account pursuant to 28 U.S.C. § 1915(b)(2).

II. PLAINTIFF’S COMPLIANCE WITH SCREENING ORDER

Mr. Jones complied with part of the court’s screening order by providing requisite financial information (Doc. 12). In order to have properly responded to the remainder of that order, he should have filed either a single response in which he addressed each deficiency found by the court or a complete Amended Complaint. Instead, during the response period and for two months thereafter Mr. Jones filed 28 motions and other papers, none of which was a proper response or Amended Complaint.[1] Finally, three months after the court’s screening order, plaintiff filed his First Amended Complaint (Doc. 40).

III. SCREENING FIRST AMENDED COMPLAINT

Before plaintiff filed his Amended Complaint, he was informed in the screening order that:

An amended complaint completely supersedes the original complaint. Consequently, any claims in the original complaint that are not included in the Amended Complaint are no longer before the court.

The legal standards to be applied during screening were set forth in the court’s prior order.

A. Allegations and Claims

In the caption of his First Amended Complaint, plaintiff names two defendants: “Shawnee Co. Jail” and “Shawnee Co. Court Clerk” (name unknown). Elsewhere, he refers to Richard Eckhart, Shawnee County Counselor, as a third defendant.[2] As the factual basis for Count I in his Amended Complaint, plaintiff alleges that defendant unnamed Clerk of the Shawnee County District Court (hereinafter Clerk) failed to file his petitions including a complaint regarding the seizure of his four out-going letters. In the factual background section, he alleges that from September to December 2012, he tried to file “several writs of habeas corpus 60-1501-07 at Shawnee Courthouse, ” but was told he had to pay the filing fee and the Clerk once responded, “previous filing restriction.”[3] The Clerk did not inform him how to resolve the matter and would never respond to his requests. Plaintiff asserts denial of his “guaranteed right to the writ, ” access to the courts, and his First Amendment “right to communicate with outside world.” Counts II and III in the Amended Complaint are based upon plaintiff’s allegations that four letters he attempted to mail as “legal mail” were improperly seized and withheld. Plaintiff’s own pleadings and exhibits indicate the following factual background for this claim. In September or October 2012, plaintiff marked “legal mail” on the envelopes of four letters and attempted to mail them out of the Shawnee County Jail. These four letters were addressed to four businesses: Kansas Fiber Optic Cable, LCD Class, Equip Bankruptcy Solutions, and Gilardi and Company (a class action management company). Plaintiff has described these letters as concerning his “civil affairs.” Plaintiff alleges that K.A.R. 44-12-601 defines legal mail for Kansas prisons, that the jail “crafts its rules after the prisons, ” and that in the jail’s inmate rule book legal mail is defined as “mail to court, officials, or lawyer.” On page 14 of the Inmate Handbook of the Shawnee County Department of Corrections “legal mail” was defined as “mail sent to or received from an attorney, judge, or other federal, state, or local government official.”

Mail Assistant Ms. Sipp returned the four letters to Mr. Jones with directions to remove the words “legal mail.” Sipp and Angie Ross directed Mr. Jones not to write the words “legal mail” on these letters because they were not to courts, governments, or law firms. Thereafter, Mr. Jones wrapped the letters with “legal mail” still marked upon the envelopes in a piece of paper on which he wrote “legal mail is special” and “it is not my fault that its (sic) baffling, ” and again placed them in the mail box. Ms. Sipp wrote a disciplinary report against plaintiff based upon this incident. The four letters were confiscated and held as evidence in the disciplinary proceedings. Officer Chuck noted on the disciplinary hearing record that plaintiff requested his letters back. Plaintiff was informed that after the hearing the letters were placed in his property. He requested them from the property officer, who apparently refused his request. Plaintiff was advised in a “Response” from the Director of the Shawnee County Department of Corrections that his “simply placing the words ‘Legal Mail’ on letters” did not make them fall within the definition for legal mail.

Based on these allegations, plaintiff asserts that his First Amendment rights to court access, to “communicate with outside world, ” and “lawyer-client privilege” were violated. He seeks millions of dollars in punitive damages “because they all know (he is) right yet don’t fix it.” He also seeks “compensatory damages” for his “losses of being able to opt-out of class action lawsuit and sue in the state for civil penalties for consumer protection violations” allegedly resulting from his letters being “seized past the opt-out or due date.” In addition, he seeks ten million dollars “for (his) mail, ” ten “for habeas writs, ” and one million for pain and suffering.

B. Legal Standards

Prison inmates have a constitutional right to “meaningful access to the courts.” Bounds v. Smith, 430 U.S. 817, 823 (1977). “[T]he right of access to the courts is an aspect of the First Amendment right to petition the Government for redress.” Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 741 (1983); see also Al–Amin v. Smith, 511 F.3d 1317, 1331 (11th Cir.), cert. denied, 555 U.S. 820 (2008); Wolff v. McDonnell, 418 U.S. 539, 576 (1974). The Supreme Court has held that “in order to assert a claim arising from the denial of meaningful access to the courts, an inmate must first establish an actual injury.” Lewis v. Casey, 518 U.S. 343, 349, 351-53 (1996)(an inmate asserting denial of access to the courts must satisfy the standing requirement of “actual injury.”); Simkins v. Bruce, 406 F.3d 1239, 1243–44 (10th Cir. 2005); Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990)(An inmate alleging interference with legal access must allege specific facts showing that a “distinct and palpable” injury resulted from defendants’ conduct.). “In order to satisfy the actual injury requirement, the plaintiff must show that prison officials frustrated or impeded the plaintiff’s ability to file non- frivolous direct appeals from his conviction, a habeas corpus petition or a civil rights claim pursuant to § 1983 ‘to vindicate basic constitutional rights.’” Redmon v. Zavaras, 2011 WL 2728466 (D.Colo. June 16, 2011)(citing Lewis, 518 U.S. at 351, 354–55 (internal quotation marks and citation omitted); Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th Cir. 1996)(“an inmate must satisfy the standing requirement of ‘actual injury’ by showing” that defendant “hindered the prisoner’s efforts to pursue a nonfrivolous claim”); Simkins, 406 F.3d at 1243;[4] see also Peterson v. Shanks, 149 F.3d 1140, 1145 (10th Cir. 1998)(“To present a viable claim for denial of access to courts . . . an inmate must allege and prove prejudice arising from Defendants’ actions.”).

In addition, “prisoners retain the right to send and receive mail, see Thornburgh v. Abbott, 490 U.S. 401 (1989), and repeated violations of a prison mail policy may implicate First Amendment concerns if the prison employee acts in an ‘arbitrary’ or ‘capricious’ fashion.” Cotner v. Knight, 61 F.3d 915, *5 ...


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