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Jones v. Biltoff

United States District Court, D. Kansas

March 26, 2014

JOSEPH LEE JONES, Plaintiff,
v.
OFFICER BILTOFF, et al., Defendants.

MEMORANDUM AND ORDER

SAM A. CROW, Senior District Judge.

This pro se complaint was filed pursuant to 42 U.S.C. § 1983 by Mr. Jones while he was an inmate of the Hutchinson Correctional Facility (HCF). He has since notified the court that he has been transferred to the Larned Mental Health Correctional Facility.

Having reviewed the materials filed, the court finds that Mr. Jones has not complied with the statutory filing fee prerequisites and that the complaint fails to state a claim and is frivolous. Plaintiff is given time to satisfy the filing fee and to show cause why this action should not be dismissed.

FILING FEE

The fees for filing a civil rights complaint in federal court total $400.00, or for one granted leave to proceed without prepayment of fees, the fee is $350.00. Mr. Jones has neither paid the fee nor submitted a motion to proceed without prepayment of fees (IFP motion). This action may not advance until plaintiff has satisfied the statutory filing fee in one of these two ways. Mr. Jones is reminded that 28 U.S.C. § 1915 requires a prisoner seeking to proceed without prepayment of the fee to submit a motion together with 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 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."[1] 28 U.S.C. § 1915(a)(2).

In addition Mr. Jones is required to utilize the proper forms for an IFP motion. Plaintiff is forewarned that if he fails to satisfy the fee within the time prescribed by the court, this action may be dismissed without prejudice and without further notice. The clerk shall be directed to provide plaintiff with forms for filing a proper IFP motion.

ALLEGATIONS AND REQUESTS FOR RELIEF

In the caption of the complaint, plaintiff names as defendants County Counselor Rich Eckhart, Shawnee County, Kansas; Officer Biltoff, employee of the Shawnee County Department of Corrections (SCDOC); and "Unit Team Hoepner, " employee of El Dorado Correctional Facility (EDCF). Elsewhere in his complaint, he also refers to "KDOC I-N-I Blacksuit Officer" employed at the EDCF as a defendant.

Plaintiff's allegations under "Nature of the Case" mainly concern a prior lawsuit filed by him in this court and his pursuit of administrative remedies in connection with his claims in that action. That prior lawsuit was dismissed by this court: Jones v. State of Kansas, Case No. 12-3229 (D.Kan. August 21, 2013). Plaintiff sets forth five counts in the instant complaint: (1) violation of his First Amendment right to communicate; (2) violation of his First Amendment right to court access; (3) violation of his Sixth Amendment right to due process, (4) denial of his right to confidential correspondence with lawyers or their assistants, and (5) denial of his right to medical treatment and to be free from injury.

In support of Count (1), plaintiff alleges that Shawnee County failed to return his seized outgoing letters so that he could remove the words "legal mail" and mail them out again. He further alleges that defendant Eckhart told him to "utilize the proper procedure to get his letters back, " that he "did this, " but his letters were not returned until he left the jail six months later. In support of Count (2), plaintiff alleges that his letters were to "people who are responsible class action administration" and that "under K.A.R. XX-XX-XXX(1)(A) that is legal mail." He also describes an incident which he suggests impeded his access in Case No. 12-3229. In support of Count (3), plaintiff alleges that his ability to grieve and exhaust administrative remedies was impeded by his being "moved around so much" and "being mentally ill." Plaintiff's allegations in support of Count (4)[2] are not clear. He appears to argue that if he claims his outgoing mail is "legal mail to a legal service" and it is not opened to review the content, then determining the nature of that mail from the address rather than the content is improper. Plaintiff also alleges that his "letters to a claims administrator are confidential" because those persons handle his legal affairs.

Plaintiff's requests for relief are: the filing fee assessed in his prior lawsuit plus litigation expenses for that lawsuit of $150; "a million dollars' worth of civil penalties (he) could have recovered had he been able to respond to the class actions and opt-out and bring (his) own lawsuit;" for the court to "fix administrative remedies injunctively"; "punitively $100, 000"; "compensatory 100, 000.00".

SCREENING

Because Mr. Jones 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 on 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). 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). Nevertheless, 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 court "will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory ...


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