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Kling v. Cline

United States District Court, D. Kansas

April 16, 2014

SAM CLINE, Warden, et al., Defendants.


SAM A. CROW, Senior 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. Having examined the materials filed, the court finds that the filing fee prerequisites have not been satisfied and the complaint is deficient in several ways. Plaintiff is given time to cure these 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, or for one granted leave to proceed without prepayment of fees it is $350.00. Plaintiff has submitted a Request for Leave to Proceed in forma pauperis (Doc. 2). However, this Request does not meet statutory and other requirements. 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), together with 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). Mr. Kling has not provided a certified account statement for the six-month period immediately preceding the filing of this complaint. He claims that he cannot provide this statement because in order to obtain it he must send a self-addressed, stamped envelope to accounting in Lansing; and he has no envelope, paper, or stamp. However, the court has not had any other KDOC inmate allege that he was prevented in this manner from obtaining his account statement. Mr. Kling is given thirty days to meet the statutory requirement of providing a certified account statement. If he still claims to be unable to obtain this statement, he must provide documentation showing that he requested the statement, from whom it was requested, the date of his request, and the response to his request. If plaintiff fails to comply within the prescribed time, this action may be dismissed without further notice.

In addition, local court rule requires that such motions be on court-approved forms. Mr. Kling's motion is not upon forms. The clerk shall be directed to send Mr. Kling the appropriate forms.

Plaintiff is reminded that under 28 U.S.C. § 1915(b)(1), being granted leave to proceed without prepayment of fees does not relieve him of the obligation to pay the full amount of the filing fee. Instead, it merely entitles him to pay the fee over time through payments automatically deducted from his inmate trust fund account as funds become available.[1]


As the factual background for this complaint, Mr. Kling alleges as follows. On March 26, 2014, he was in the infirmary and requested a grievance form from a nurse who relayed his request to the officer on duty at the clinic. When he did not receive a grievance form within a few minutes, plaintiff complained to the nurse and began yelling to get the officer's attention. The officer, defendant John Doe #1, arrived shortly without the form. Plaintiff and the defendant officer got into a verbal altercation. The officer, who was much heavier than plaintiff, violently pushed plaintiff across the cell where he fell onto his bed. Plaintiff saw the officer charging into the cell and "began defending himself" with punches, elbows, knees and any other means. During this physical altercation, the defendant officer and plaintiff hit each other. The altercation lasted several minutes until plaintiff could see that the officer was too tired to continue. Responding officers arrived after the altercations had ceased. Plaintiff immediately told Shift Supervisor Kipp about the incident and requested that footage from three cameras in the area be preserved.

On this same date, plaintiff was placed in segregation on "MRA status." All of plaintiff's property was taken except he is allowed to receive incoming mail. Defendants caused or allowed the following to be taken from plaintiff: all hygiene items purchased by him; all his phone privileges, all his legal materials including supplies, books, case law, copy tickets, and documents and materials from his closed and pending cases; all his stationary, envelopes, postage and addresses; and all his saved legal and personal letters and documents. Defendants knew these deprivations would prevent plaintiff from contacting his lawyer. Plaintiff was deprived of all avenues of contacting his family to have them contact his attorney and to inform them of the violent attack and his admission to the infirmary. Defendants knew these deprivations would prevent plaintiff from taking legal action after being attacked by a correctional officer.

"Multiple other inmates" in segregation on MRA status were immediately given "the minimum allowable properties" including purchased hygiene products and all other property listed by plaintiff. According to the Officer-in-Charge (OIC) Clune, defendant Nichols chose what property plaintiff could possess and is responsible for this unequal treatment. All defendants have been made aware of this unequal treatment and allowed it to continue.

Mr. Kling states that he has not exhausted the prison grievance procedures. He alleges that he has "made countless verbal request (sic)" to a number of officers, that he informed the segregation review board, and that he "sent 3 inmate request forms, none of which have (sic) been answered." Plaintiff alleges that he has state and federal statutes of limitation running that "will be exceeded" if he is forced to utilize the multi-tiered prison grievance process. He contends that he should not be required to exhaust or to obtain a certified copy of his inmate account statement because that "can take weeks and even months" and great harm could occur during this period "if the conditions persist or worsen."

Plaintiff names Sam Cline, Warden, HCF and Mr. Nichols, A-Cellhouse Unit Team Manager, HCF, as defendants. In the caption he also lists "John/Jane Does #1-50". Based on the foregoing allegations, plaintiff asserts (1) denial of access to courts and counsel; (2) denial of "familial association"; (3) violation of equal protection, (4) excessive force, and (5) retaliation. He seeks damages "from each responsible party." In addition, he seeks "an emergency injunction" ordering defendants to "immediately stop all retaliatory actions."


Because Mr. Kling 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, ...

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