United States District Court, D. Kansas
MEMORANDUM AND ORDER
SAM A. CROW, Senior District Judge.
Upon screening the original complaint filed herein, the court entered an Order (Doc. 6) requiring plaintiff to show cause why this action should not be summarily dismissed as stating no claim for relief. Thereafter, Mr. Chambers responded by filing an Amended Complaint (Doc. 9) and a "Motion to Show Cause as Ordered, " which was docketed as his response (Doc. 11). The court is required to screen plaintiff's Amended 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). Having considered all the materials in the file, the court concludes that this action must be dismissed for failure to state facts sufficient to support a federal constitutional claim.
FACTUAL BACKGROUND AND CLAIMS
In his Amended Complaint, Mr. Chambers sets forth the following background facts. On February 25, 2013, during his confinement at the Decatur County Jail in Oberlin, Kansas, he received mail from attorney Steven Sherwood of Legal Services for Prisoners that was properly marked as legal mail. This mail was opened and read outside his presence by defendant Ken Badsky, Sheriff of Decatur County. When Undersheriff Marcum handed plaintiff the mail, plaintiff asked why it was opened, and Marcus responded that defendant Badsky "had opened and read it not him." Three fellow inmates witnessed Marcum's delivery of the opened mail and Marcum's statement.
As factual support for his assertions of First Amendment violations in particular, plaintiff makes the following additional allegations. The letter from attorney Sherwood "was about specific actions" under the Kansas habeas statutes "for (his) case in Decatur County" and "his perusal to appeal" that case, and came with an appeal form attached. Attorney Sherwood asked plaintiff "to provide more information as to the nature of the action (plaintiff) was going to take." Plaintiff could not provide the information requested by attorney Sherwood "because of (his) fear that the defendant would read it." The prosecutor in his criminal case, Decatur County Attorney Steve Hirsh, stated to plaintiff's appointed attorney Mark Whitney that "if (plaintiff) planned to file a habeas corpus case or pursue" an appeal, Hirsh "would give (plaintiff) all the time" he could. The only way for Hirsh "to know about that subject matter" would be from defendant Badsky opening and reading plaintiff's legal mail and "reporting it" to Hirsh. Plaintiff's fear of "getting more prison or jail time" rendered him unable to "properly raise a defense in (his) case" and pursue an appeal or habeas corpus action. Defendant acted "with an evil intent and motive" and "with very improper motive."
As Count I in his Amended Complaint, plaintiff asserts that defendant Badsky violated his First Amendment rights to freedom of speech, to be free of censorship, to petition the Government for redress of grievances, and of access to the courts. As Count II, he asserts that defendant violated his Sixth Amendment right to assistance of counsel. As Count III, plaintiff asserts violation of due process, privileges and immunities, liberty and property.
In his response (Doc. 11), plaintiff mainly cites several legal opinions with no discussion as to how they relate to the facts of his case. His only fact allegations therein are that he filed an Amended Complaint "to state more facts, " and hopes for the court to "construct the Original Complaint with the Amended Complaint."
Plaintiff seeks a declaration that "the acts and omissions described" in his complaint violated his federal constitutional rights. He also seeks injunctive relief in the form of an order requiring defendant to set standard rules and grievance procedures at the Decatur County Jail. In addition, he seeks nominal and punitive damages.
"To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). 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). On the other hand, "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).
Plaintiff claims a violation of due process. The Tenth Circuit Court of Appeals has plainly held that prison inmates have no federal constitutional right to a grievance procedure while incarcerated. See Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009); Walters v. Corrections Corp. of America, 119 Fed.Appx. 190, 191 (10th Cir. 2004), cert. denied, 546 U.S. 865 (2005); Sims v. Miller, 5 Fed.Appx. 825, 828 (10th Cir. 2001)([I]nsofar as plaintiff contended that CDOC officials failed to comply with the prison grievance procedures, he failed to allege the violation of a federal constitutional right.").
Plaintiff also asserts that defendant violated his Sixth Amendment right to "proper assistance of counsel." The Sixth and Fourteenth Amendments to the U.S. Constitution guarantee the right of an indigent defendant to counsel at the trial stage of a criminal proceeding. Murray v. Giarratano, 492 U.S. 1, 7 (1989)(citing Gideon v. Wainwright, 372 U.S. 335 (1963)); McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970)(The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence.")). "[A]n indigent defendant is similarly entitled as a matter of right to counsel for an initial appeal from the judgment and sentence of the trial court." Id. at 7 (citing Douglas v. California, 372 U.S. 353, (1963); Griffin v. Illinois, 351 U.S. 12 (1956)). On the other hand, in Pennsylvania v. Finley, 481 U.S. 551, 556-57 (1987), the Court held that there is no federal constitutional right to counsel for indigent prisoners seeking state post-conviction relief. See Murray, 492 U.S. at 8 ("Post-conviction relief is even further removed from the criminal trial" and "is not part of the criminal proceeding itself, " but "is in fact considered to be civil in nature."). Thus, with respect to the reading of an inmate's mail as well, the Sixth Amendment's "reach is only to protect the attorney-client relationship from intrusion in the criminal setting." Wolff, 418 U.S. at 576.
In considering plaintiff's claim of violation of his right to free speech, the following standards apply. Generally, "prisoners retain the right to send and receive mail." See Thornburgh v. Abbott, 490 U.S. 401 (1989). However, that right does not preclude prison officials from examining mail for security and other legitimate penological purposes. Wolff v. McDonnell, 418 U.S. 539, 576 (1974); Rowe v. Shake, 196 F.3d 778, 782 (7th Cir. 1999). Furthermore, courts have long held that the inadvertent, negligent mishandling of an inmate's mail does not violate the Constitution. Simkins v. Bruce, 406 F.3d 1239, 1242 (10th Cir. 2005)(When access to the courts is impeded by mere negligence, as when legal mail is inadvertently lost or misdirected, no constitutional violation occurs.); Bruscino v. Carlson, 654 F.Supp. 609 (S.D.Ill. 1987), aff'd, 854 F.2d 162 (7th Cir. 1988), cert. denied, 491 U.S. 907 (1989). On the other hand, courts have "not hesitated to find a violation" where a policy of opening mail outside inmates' presence has been shown. See e.g. Kalka v. Megathlin, 10 F.Supp.2d 1117, 1123 (D.Ariz. 1998), aff'd 188 F.3d 513 (9th Cir. 1999)("[A]n occasional opening of legal mail outside the inmate's presence does not rise to the level of a violation, though a policy of doing so is a violation."); Jones v. Brown, 461 F.3d 353, 359 (3rd Cir. 2006)(a prison's practice of opening attorney mail "interferes with protected communications, strips those protected communications of their confidentiality, and accordingly impinges upon the inmate's right to freedom of speech.").
Plaintiff's main claim is that he was denied access to the courts. Prison inmates have a constitutional right to "meaningful access to the courts." See Bounds v. Smith, 430 U.S. 817, 823 (1977). "[T]he right of access to the courts is an aspect of the First Amendment right to petition the Government for redress." Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 741 (1983); see also Wolff, 418 U.S. at 576; Al- Amin, 511 F.3d at 1331. The Supreme Court has held that "in order to assert a claim arising from the denial of meaningful access to the courts, an inmate must first establish an actual injury." Lewis v. Casey, 518 U.S. 343, 349, 351-53 (1996)(an inmate claiming denial of access to the courts must satisfy the standing requirement of "actual injury."); Simkins v. Bruce, 406 F.3d 1239, 1243-44 (10th Cir. 2005); Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990)(An inmate alleging interference with legal access must allege specific facts showing that a "distinct and palpable" injury resulted from defendants' conduct."); Peterson v. Shanks, 149 F.3d 1140, 1145 (10th Cir. 1998)("To present a viable claim for denial of access to courts... an inmate must allege and prove prejudice arising from Defendants' actions."). Plaintiff may show injury by alleging actual prejudice to contemplated or existing litigation such as the inability to meet a filing deadline or to present a claim, or that a nonfrivolous legal claim has been dismissed or impeded. Simkins, 406 F.3d at 1242 (citing Lewis, 518 U.S. at 351-53 & n. 3); Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th Cir. 1996)("an inmate must satisfy the standing requirement of actual injury' by showing" that defendant "hindered the prisoner's efforts to pursue a nonfrivolous claim"). Conclusory allegations of injury will not suffice. Wardell v. Duncan, 470 F.3d 954, 959 (10th Cir. 2006)(citing Cosco v. Uphoff, 195 F.3d 1221, 1224 (10th Cir. 1999)); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). Furthermore, the Tenth Circuit and other Circuit Courts have specifically held that an isolated incident of opening legal mail outside of the inmate's presence ...