United States District Court, D. Kansas
MEMORANDUM AND ORDER
SAM A. CROW, District Judge.
This pro se civil action was filed pursuant to 42 U.S.C. § 1983 by an inmate of the Hutchinson Correctional Facility, Hutchinson, Kansas (HCF). Having examined the materials filed, the court assesses an initial partial filing fee. In addition, the court finds that the complaint is deficient in several ways. Plaintiff is given time to pay the part fee and to cure the deficiencies. If he fails to comply within the prescribed time this action may be dismissed without further notice.
The fees for filing a civil action in federal court total $400.00 and consist of the statutory fee of $350.00 under 28 U.S.C. § 1914(a) plus an administrative fee of $50.00; or for one granted leave to proceed without prepayment of fees the fee is $350.00. Plaintiff has filed a Motion for Leave to Proceed without Prepayment of Fees (Doc. 3) and has attached an Inmate Account Statement in support as statutorily mandated. 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, being granted such leave merely entitles him to pay the filing fee over time through payments deducted automatically from his inmate 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. Having examined the records of plaintiff's account, the court finds the average monthly deposit during the relevant time period was $138.80, and the average monthly balance was $105.04. The court therefore assesses an initial partial filing fee of $27.50, twenty percent of the average monthly deposit rounded to the lower half dollar. Plaintiff is given time to submit the fee to the court, and warned that his failure to comply within the prescribed time may result in dismissal of this action without further notice.
ALLEGATIONS AND CLAIMS
As the factual background for this lawsuit, Mr. James alleges as follows. On February 27, 2013, he was charged with two "class II" disciplinary infractions at the HCF, one based on work performance and the other charging disrespect. The disciplinary reports were written 39 days after the incidents occurred. A disciplinary hearing was held on March 7, 2013, and Mr. James was found guilty. He was sanctioned with 15 days disciplinary segregation and 30 days restrictions on privileges for each infraction, loss of personal property, 100% loss of good time for the work performance infraction, and 25% loss of good time for the disrespect infraction. Mr. James appealed to the HCF Warden as well as to the Secretary of Corrections, and the hearing officer's decision was affirmed at both levels.
Mr. James then filed an action in Reno County District Court to challenge the disciplinary proceedings. The district court "affirmed" the hearing officer's decision, finding there was "no liberty interest plaintiff to argue the denial of due process." Plaintiff filed a Notice of Appeal, which was assigned Appellate Case No. 13-110412. He prepared his appellate brief and obtained 19 copies of it. On October 8, 2013, he sent one original and 17 copies of his brief to the Kansas Court of Appeals (KCA), and asked the court to return a file-stamped copy. Defendant Patti Keen, mail room manager at the HCF, charged Mr. James $5.49 for "Legal/Official Postage" to mail his package containing the original and 17 copies of his brief to the KCA. Plaintiff received a letter dated October 11, 2013, from Jason Oldham, Chief Deputy Clerk of the Kansas Appellate Courts, stating that the Clerk's office had received two copies of his brief on that day and that the case was on hold awaiting the 14 additional copies that were required in order for his brief to be filed. Days later, Mr. James sent the Clerk a letter with a picture of the package he had mailed attached. In this letter he stated that he sent the package with 18 briefs enclosed and did not know what had happened between the time he placed his legal mail "in the hands of (HCF) postal service" and the Clerk's receipt of the mail. He further stated that the letter was verification of his compliance with Rule 6.09(a). He then requested that the Clerk "make the needed copies since (he had) no more funds" and was "not at fault" for the Clerk having received "an incomplete package." The court takes judicial notice of the Kansas Appellate Courts docket for Case No. 110412, which shows "Order of Dismissal/by the Court (Aplnt did not file br)" entered on January 16, 2014. Plaintiff states that his appeal was dismissed due to "lack of copies." Plaintiff also exhibits the Order of dismissal entered by the KCA which provided:
On December 19, 2013, this court issued an order noting that the Appellant's brief was past due. The order directed the Appellant to file a brief by January 2, 2014, or the appeal would be dismissed.... The Appellant has filed no brief and has not responded to this court's order. The appeal is accordingly dismissed.
Complaint (Doc. 1-1) at 6.
As Count I in his complaint, Mr. James asserts, based upon the foregoing facts, that his right of access to the courts under the First Amendment was violated. As Count II, he claims "Mail Fraud" also based upon the foregoing facts. As Count III, he asserts a conspiracy to deny his right to equal protection of the law. As factual support for his third count, plaintiff alleges no facts and provides only very general phrases: "using canteen venders (sic)" as "the only way to obtain legal materials needed to follow" court rules; IMPPs and general orders of the Kansas Department of Corrections (KDOC) give conflicting information to inmates; the "HCF Facility makes it hard" on an inmate trying to file a complaint against the facility; and "facility rules violate" the inmate's right to court access.
Plaintiff seeks payment of 200 million dollars in punitive and "monitary (sic) damages" for "emotional distress" from the constitutional violations and the mental stress he has suffered over the course of the alleged events.
Because Mr. James is a prisoner suing government officials, 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, "when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, " dismissal is appropriate. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007). 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 on plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). ...