United States District Court, D. Kansas
MEMORANDUM AND ORDER
SAM A. CROW, Senior District Judge.
This pro se civil rights complaint was filed pursuant to 42 U.S.C. § 1983 by an inmate of the Hutchinson Correctional Facility, Hutchinson, Kansas (HCF). Plaintiff claims that he is in danger at the HCF because it also houses a large group of rival "Suranos" and asserts that he is being subjected to cruel and unusual punishment as a result. He seeks injunctive relief and damages. Mr. Goodson is required to satisfy the statutory filing fee prerequisites. In addition, he is required to show cause why his complaint should not be dismissed for failure to state a claim.
The fees for filing a civil rights complaint in federal court total $400.00 and consist of the statutory fee of $350.00 plus an administrative fee of $50.00; or for one that is granted leave to proceed in forma pauperis, the fee is $350.00. Plaintiff has submitted a "Forma Pauperis Affidavit" (Doc. 2). However, neither the motion nor the financial information attached conforms to federal law. 28 U.S.C. § 1915 requires that a prisoner seeking to bring a civil action without prepayment of fees submit an affidavit described in subsection (a)(1), and a "certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-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 motions to proceed without prepayment of fees be upon court-approved forms. Plaintiff is given time to submit his motion upon proper forms. This action may not proceed until he has satisfied the filing fee prerequisites and may be dismissed without further notice if he fails to do so within the prescribed time.
Plaintiff is reminded that under 28 U.S.C. § 1915(b)(1), a prisoner granted such leave is not relieved of the obligation to pay the full fee of $350.00 for filing a civil action. Instead, it merely entitles him to pay the filing fee over time through payments deducted automatically from his inmate trust fund account as authorized by 28 U.S.C. § 1915(b)(2). Furthermore, § 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 filing of the civil action. The court will determine the partial fee once the requisite financial information is received.
ALLEGATIONS AND CLAIMS
Plaintiff alleges the following factual basis for his complaint. "[S]ince 2009 the Suranos have been assaulting their arch rivals the Nortenos." There have been "numerous altercations in this SMU program" at HCF in A-3 cell house between the Suranos and Nortenos and Nortenos allies. Defendants have continued to allow "the two groups to stay in the same program" despite the fights. The SMU program started as one class but was divided into two due to "various altercations between Nortenos and Suranos, " which shows that defendants Vieyra and Jackson "know about this volatile and harsh situation." About 50 to 80 Suranos are currently housed at the HCF, with only one, two or no Nortenos. Plaintiff is "labeled" as a member of LLC, a Mexican Group that is an "ally of the Nortenos, and rival to Suranos." Every time "KDOC classifications/RDU sends a Norteno or an ally... to HCF, " there is a "brief altercation with the Suranos, after which the Norteno is placed in segregation and then transferred. The "administration" has sent "a couple guys" that were jumped by the Surranos out of state and seems to be developing this as a policy, which puts a strain on the persons transferred and their personal relationships. "The staff" and defendants Vieyra and Jackson have ignored "the seriousness of the situation" and allowed it to exist.
In May 2013, plaintiff was transferred "from El Dorado's Super Max Unit to HCF to participate in the Special Management Unit (SMU)." He requested a transfer to Lansing's SMU program or El Dorado's population. His request was denied by defendant Vieyra, Deputy Warden of Programs over SMU, and defendant Joe Jackson, unit team manager in the SMU. Defendants Vieyra and Jackson have access to plaintiff's file and HCF records, and thus knew of plaintiff's "dealings" with the Surranos and yet allowed him to be moved to HCF and kept there until he was jumped. Defendants "were given a chance to examine (his) case and consider his charges against them through the grievance procedure."
On October 11, 2013, defendant Smith, a CO II in the SMU unit, opened "a rival Surano's door she wasn't supposed to" and plaintiff and the rival "fought when he ran out swinging at me." Smith "has done this before." Plaintiff received a "black eye and lumps" in this fight.
Submission of evidence with the complaint is to be discouraged. However, plaintiff attaches 28 pages of exhibits to his complaint, which now may be considered as part of the complaint. In his Inmate Grievance dated November 1, 2013, Goodson complained that defendant Smith opened an inmate's door "from the other half of class" that is kept separate, the inmate came at plaintiff, and they fought; and that since his arrival in May he had requested an immediate transfer as a preventive measure because "these altercations were a common occurrence, " but his requests were denied. Plaintiff sought release from the SMU program, transfer to population at EDCF, punitive damages, and "a change in HCF/SMU policy that keeps Nortenos and their affiliates" from being sent to HCF. G. Riemann CCII responded to his grievance, in part, as follows:
You have previously been told that your request to be moved will be considered at the appropriate time in accordance with the program guidelines and time frame. As for CO II Smith opening doors when she is not supposed to has been addressed and this action will not be addressed with you. Lastly, there is no policy at HCF that keeps Nortenos from being sent here.
Plaintiff appealed to the Warden, who responded that Goodson's request for transfer would be considered within the program guidelines and timeframe. Plaintiff appealed to the Secretary of Corrections who adopted the facility staff response. COII Brown informed plaintiff in response to another of his grievances:
Right now, Lansing is not taking anyone unless they are going to Phase 3 and ONLY if they have room and agree to it. Which is not often. We can request on your review (I have put in the request) and also when you are getting close to Phase 3. IF Lansing gets openings ...