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Balderes v. State

United States District Court, Tenth Circuit

November 19, 2013

STATE OF KANSAS, et al., Defendants.


SAM A. CROW, U.S. Senior District Judge

Plaintiff initiated this action on March 27, 2013, with a pro se pleading titled as an “ORDER TO INVESTIGATE FOR DEPRIVATION/Motion for Petition under 28 U.S.C. § 636, ” submitted while he was confined in the Sedgwick County jail. The court liberally construed the pleading as once seeking relief under 42 U.S.C. § 1983, and directed plaintiff to submit a form complaint that named appropriate defendants, and that provided a factual basis for establishing each defendant’s “direct personal responsibility for the claimed deprivation of a constitutional right.” Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir.2006). The court also directed plaintiff to pay the district court filing fee, or to submit a motion for leave to proceed in forma pauperis under 28 U.S.C. § 1915.

In response plaintiff submitted a “revised complaint” on court approved form complaint, and a motion for leave to proceed in forma pauperis. Having reviewed those documents, the court enters the following order.

Motion for Leave to Proceed In Forma Pauperis, 28 U.S.C. § 1915

The court grants plaintiff leave to proceed in forma pauperis under 28 U.S.C. § 1915, subject to plaintiff’s timely payment of an initial partial filing fee of $11.00 which is twenty percent of plaintiff’s average deposit for the two month period he was confined before filing the instant action. See 28 U.S.C. § 1915(b)(1)(prisoner granted in forma pauperis status must pay the full district court filing fee; court assessment of the initial partial filing fee that must be paid). Plaintiff remains obligated to pay the remainder of the $350.00 district court filing fee through automatic payments from his inmate trust fund account, as authorized by 28 U.S.C. §1915(b)(2).

Screening of the Revised Complaint, 28 U.S.C. § 1915A

Because plaintiff is a prisoner, the court must conduct an initial screening of any action in which a prisoner seeks relief from a governmental entity or an officer or employee of such an entity. See 28 U.S.C. § 1915A(a). In conducting the screening, the court must identify any viable claim and must dismiss any part of the action which is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b).

A pro se party's complaint must be given a liberal construction. Erickson v. Pardus, 551 U.S. 89 (2007). However, a party proceeding pro se has “the burden of alleging sufficient facts on which a recognized legal claim could be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).

To state a claim for relief, the complaint must present allegations of fact, assumed to be true, that “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint must present “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. At this stage, the court accepts all well-leaded allegations as true and views them in the light most favorable to the plaintiff. Id. at 555.

In the present case, plaintiff seeks relief for the alleged violation of his rights under the Eighth Amendment. Three defendants are named: the State of Kansas and two Sedgwick County Sheriff employees at the Sedgwick County Detention Facility, identified as Sgt. Freeman and Sheriff Deputy Berry. Plaintiff claims these two individual defendants acted with deliberate indifference to plaintiff’s plaintiff’s personal safety by telling other inmates that plaintiff is a snitch and/or federal informant, and by instigating other inmates to kill plaintiff. Plaintiff seeks damages from all defendants, and for defendants Freeman and Berry to be fired and criminally prosecuted.

It appears plaintiff was arrested on criminal drug charges in two Sedgwick County cases on February 13, 2013. He states that in the first week in March 2013, defendants Berry and Freeman disclosed to other inmates that plaintiff was an informant, and offered to pay money and release any inmate that killed plaintiff. Plaintiff also cites his belief that “a major Sheriff campaign contribution was made by the cartel to have me killed.” (Doc. 4, p.2).

Plaintiff specifically states he was placed in a cell in a living pod that put him within arm’s reach of a person against whom plaintiff had provided information in that person’s murder trial, and states his request for protective custody was denied. He also cites being placed on suicide watch several times, in violation of his right due process because he was not provided a fair grievance procedure. Plaintiff further claims that “during this whole time” he was unconstitutionally denied showers, hygiene products, access to his mail, and communication with his family. Plaintiff states he sought administrative relief by attempting to go through the proper chain of command without success because “it seems as if a major sheriff campaign contribution was made to have me killed.” (Doc. 4, p. 5)

Plaintiff also provides a copy of the pro se Motion to Relocate he filed March 14, 2013, in his pending Sedgwick County criminal cases. In that motion plaintiff states he fears for his life. No information is provided ...

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