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Beauclair v. High

United States District Court, D. Kansas

January 7, 2015

DANNY E. BEAUCLAIR, Plaintiff,
v.
DENNIS HIGH, et al., Defendants.

MEMORANDUM AND ORDER

SAM A. CROW, District Judge.

This pro se civil rights complaint was filed pursuant to 42 U.S.C. § 1983 by an inmate of the El Dorado Correctional Facility-Oswego (OCF). Plaintiff claims that a disciplinary report charging him with forgery was false and written by a correctional officer in retaliation for a grievance he wrote against her. The court finds that this action is subject to dismissal as frivolous and for failure to state a claim. Plaintiff is given the opportunity to show good cause why this action should not be dismissed.

Mr. Beauclair was previously given time to satisfy filing fee prerequisites and has done so by paying the fees in full.

ALLEGATIONS AND CLAIMS

Plaintiff names as defendants: Staff Sgt. Dennis High, OCF; Lt. Chrise Zenk, OCF; and Nancy Kemp, Nurse/RN, OCF. As the factual background for this complaint, he alleges as follows. On December 9, 2013, Mr. Beauclair submitted a "grievance against defendant Nancy Kemp for violating IMPP 02-118" and other misconduct.[1] In this grievance, he claimed that at the Informal Resolution stage[2] Kemp "lied to cover-up the fact" that plaintiff "was being denied adequate medical care" that was causing him "needless pain and suffering" in violation of the Eighth Amendment. A KDOC inmate is required to attach his Informal Resolution (IR) to his form-9 grievance in order to verify that he attempted informal resolution.[3] However, plaintiff did not want to part with his original IR, which apparently had been signed by Kemp, and instead attached a copy that he had handwritten with "hand copy" at the top.[4] See Complaint, Doc. 1-1 at 14. On this copy he handwrote Kemp's signature.

Defendant Kemp saw plaintiff's Form 9 grievance and wrote a Disciplinary Report (DR) on December 10, 2013, charging Mr. Beauclair with a "Class One Offense." Plaintiff exhibits this DR (Doc. 1-1 at 23) in which Kemp described the "Alleged Violation of Law or Rule" as:

XX-XX-XXXX Attempt, conspiracy, accessory, solicitation, liability for offenses of another.[5] To Wit 21-5823(a)(1)(2), [6] forgery Class 1 Offence (sic).

Kemp reported in the DR that on December 10 she "received a grievance with a form 9 and a letter attached" and that "[u]pon reviewing the form 9" she "noticed signature and handwriting at the bottom of the form 9 as not my hand writing nor my signature." She noted that the papers were from Beauclair and that the form 9 had "hand copy" written on it.

Kemp's DR contained no evidence of the elements of forgery and no evidence of plaintiff's intent to defraud anyone. Id. at 15. Defendant Zenk, the shift supervisor, "read and approved"[7] the DR and thus agreed that submitting a handwritten "copy" of Kemp's signature was forgery. Zenk served plaintiff with the DR on December 11, 2013. On December 18 and 19, 2013, defendant High listened to, then disregarded, plaintiff's motion to dismiss based upon a lack of intent to defraud and conducted a disciplinary hearing on the DR. Plaintiff presented evidence, and Kemp testified but presented no evidence of forgery.[8] Hearing Officer High agreed with Kemp and Zenk that plaintiff's copying of Kemp's signature amounted to forgery and found plaintiff guilty. High sanctioned Beauclair with 45 days disciplinary segregation but suspended this punishment for 180 days. High immediately imposed additional sanctions of 60 days restrictions, a $20.00 fine, and 90 days loss of good time. Plaintiff began "serving the punishment" on December 19, 2013. He appealed the hearing officer's decision; and on January 7, 2014, the Warden overturned plaintiff's disciplinary conviction finding that: "does not meet criteria."

In Count II of his complaint, Mr. Beauclair claims that defendant High violated due process in that High failed to provide a full and fair hearing, was not "an impartial decision maker, " found plaintiff guilty "with no evidence at all of forgery, "[9] and provided no "written disposition" stating the evidence relied upon.

As Count I, plaintiff claims that defendant Kemp violated his First and Fourteenth Amendment rights "to Free Speech of Retaliation" and acted in an "arbitrary and capricious" manner. As Count III, he claims that defendants Zenk and High violated his First and Fourteenth Amendment rights "under supervisory liability'"... "of retaliation' of Free Speech' with defendant Nancy Kemp." In support, he alleges that defendants Zenk and High were personally involved in the constitutional violation by Kemp, knew of her violations but failed to act to prevent them, and unreasonably approved the DR finding that plaintiff's handwritten copy of Kemp's signature constituted forgery when plaintiff had no intent to defraud. He further claims that the acts of defendants Zenk and High were "arbitrary and capricious" and violated K.A.R. XX-XX-XXX and XX-XX-XXX and that defendant Zenk violated his duty under K.A.R. XX-XX-XXX(c)(3) and (4).[10]

Plaintiff seeks relief in the form of "an injunction to not be transferred, " as well as nominal damages "in the maximum amount" and punitive damages in the amount of $50, 000.

SCREENING

Because Mr. Beauclair is a prisoner suing state 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). "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, 48-49 (1988)(citations omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). 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). In addition, the court accepts all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006). 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 complaint must offer "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555. Its "factual allegations must be enough to raise a right to relief above the speculative level" and "to state a claim to relief that is plausible on its face." Id. at 555, 570. The Tenth Circuit Court of Appeals has explained "that, to state a claim in federal court, a complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant did it; how the defendant's action harmed (the plaintiff); and, what specific legal right the plaintiff believes the defendant violated." Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th Cir. 2007). 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).

OTHER APPLICABLE LEGAL STANDARDS

1. Due Process Challenges to Prison Disciplinary Proceedings

In Sandin v. Conner, 515 U.S. 472 (1995), the United States Supreme Court made clear that discipline in the form of segregated confinement ordinarily does not present the sort of "atypical, significant deprivation" that gives rise to a liberty interest protected by the Due Process Clause. See Sandin, 515 U.S. at 486; Talley v. Hesse, 91 F.3d 1411, 1412 (10th Cir. 1996); see McDiffert v. Stotts, 902 F.Supp. 1419, 1426 (D. Kan. 1995). In Sandin, the Court reasoned that:

[S]tates may under certain circumstances create liberty interests which are protected by the Due Process Clause (cites omitted). But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, (cites omitted), nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

Sandin, 515 U.S. at 483-84. Likewise, punishments of fines and disciplinary segregation for a limited number of days generally "fail to implicate a protected liberty interest." Hornsby v. Jones, 392 Fed.Appx. 653, 655 (10th Cir. 2010)(citing Sandin, 515 U.S. at 483-84, 487). Consequently, the due process requirements set forth in Wolff v. McDonnell simply do not apply.

On the other hand, "[i]t is well settled that an inmate's liberty interest in his earned good time credits cannot be denied without the minimal safeguards afforded by the Due Process Clause of the Fourteenth Amendment." Howard v. U.S. Bureau of Prisons, 487 F.3d 808, 811 (10th Cir. 2007)(quoting Mitchell v. Maynard, 80 F.3d 1433, 1444 (10th Cir. 1996))(internal quotation marks omitted); Taylor v. Wallace, 931 F.2d 698, 700 (10th Cir. 1991)( quoting Ponte v. Real, 471 U.S. 491, 495 (1985)). The United States Supreme Court has held, however, that "[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Instead, the Supreme Court has held that when a liberty interest is implicated in prison disciplinary proceedings, the charged inmate is entitled at a minimum to: (1) advance written notice of the charges; (2) an opportunity to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied upon and the reasons for the disciplinary action. Wolff v. McDonnell, 418 U.S. 539, 563-69 (1974); Superintendent, Mass. Correctional Inst. v. Hill, 472 U.S. 445, 454 (1985). "Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses or weighing of the evidence. The "relevant inquiry is what process (the inmate) received, not whether the [hearing officer] decided [his] case correctly." Swarthout v. Cooke, ___ U.S. ___, 131 S.Ct. 859, 863 (2011)(per curiam).

2. Retaliation

An "inmate claiming retaliation must allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights." Fogle v. Pierson, 435 F.3d 1252, 1264 (10th Cir. 2006)(quoting Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998)); Nielander v. Bd. of Cnty. Comm'rs of Cnty. of Republic, Kan., 582 F.3d 1155, 1165 (10th Cir. 2009)("To establish a First Amendment retaliation claim, a plaintiff must show that (1) he was engaged in constitutionally protected activity, (2) the government's actions caused him injury that would chill a person of ordinary firmness from continuing to engage in that activity, and (3) the government's actions were substantially motivated as a response to his constitutionally protected conduct."). Thus, "it is imperative that plaintiff's pleading be factual and not conclusory, " and "[m]ere allegations of constitutional retaliation will not suffice." Frazier v. Dubois, 922 F.2d 560, 562 n. 1 (10th Cir. 1990). In addition, in order to prevail a prisoner must show that the challenged actions would not have occurred "but for" a retaliatory motive. Baughman v. Saffle, 24 Fed.Appx. 845, 848 (10th Cir. 2001)(citing Smith v. Maschner, 899 F.2d 940, 949-50 (10th Cir. 1990); Peterson, 149 F.3d at 1144)).

3. Exhaustion of Administrative Remedies

"42 U.S.C. § 1997e(a)... requires that available' administrative remedies be exhausted prior to filing an action with respect to prison conditions under § 1983." Brown v. Chandler, 111 Fed.Appx. 972, 977 (10th Cir. 2004)(citing Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002)).

4. State Law Violations

The allegation that a state law or regulation was violated is a matter of state law only and does not present a federal constitutional violation so as to state a claim for relief under § 1983.

DISCUSSION

Applying the foregoing standards, the court finds that the complaint is subject to dismissal for the following reasons.

1. Complaint not upon Court-Approved Forms

In its prior Order, plaintiff was directed to submit his complaint upon court-approved forms. He failed or refused to comply with this direction. Mr. Beauclair is no stranger to this court and is well aware of this local court rule.[11] This action may be dismissed on this basis alone.

2. Claim of Denial of Due Process

Plaintiff's allegations that he was sanctioned with a fine, placed in administrative segregation, [12] and his privileges were restricted for a number of days, taken as true, simply fail to evince a federal constitutional deprivation. As noted, these particular punishments generally "fail to implicate a protected liberty interest" and, as a consequence, the due process requirements set forth in Wolff v. McDonnell are simply not required.

On the other hand, forfeiture of good time as a disciplinary sanction generally implicates a protected liberty interest and thus requires the due process protections afforded by Wolff. However, the Tenth Circuit has held that the revocation of good time credits does not violate the Due Process Clause where "those credits were returned" and "the temporary taking of those credits did not have any impact on Plaintiff's sentence." Hudson v. Ward, 124 Fed.Appx. 599, 601 (10th Cir. 2004)(citing see Morgan v. McCotter, 365 F.3d 882, 889 (10th Cir. 2004), cert. denied, 546 U.S. 946 (2005)(no due process violation resulted where good time credits were restored)); see also Young v. Hoffman, 970 F.2d 1154 (2nd Cir. 1992)(no need to decide due process violation because prisoner ultimately afforded due process by administrative reversal and expungement of disciplinary proceeding), cert. denied, 510 U.S. 837 (1993); In re Hancock, 192 F.3d 1083, 1086 (7th Cir. 1999)(rehearing cured any deprivation of due process suffered in first prison disciplinary hearing).

Mr. Beauclair challenged the validity of the disciplinary sanctions imposed upon him by way of administrative appeal and was successful. His appeal was decided in less than three weeks after the sanction was imposed. He makes no claim that his 90-days of good time remain forfeited, and the court assumes that this sanction was overturned by the Warden's decision.[13] Plaintiff alleges no facts suggesting any lasting impact upon his sentence. Thus, under Hudson plaintiff fails to state a claim of denial of due process. Furthermore, if plaintiff's good time credits have been restored, his due process claims arising from their revocation are moot. Brown, 111 Fed.Appx. at 977.

Given that plaintiff successfully overturned his disciplinary conviction prior to bringing this action, he seeks damages in federal court based only upon acts taken by defendants during the initial charge and disciplinary hearing that were negated and cured on administrative appeal. Even if plaintiff could plausibly argue that a "live controversy" exists under these circumstances, his own allegations and exhibits show that he was afforded adequate due process in the challenged proceedings. Plaintiff alleges that defendant High violated due process in that High failed to provide a full and fair disciplinary hearing, was not "an impartial decision maker, " found plaintiff guilty "with no evidence at all of forgery, " and provided no "written disposition" stating the evidence relied upon. All these allegations are refuted by plaintiff's own allegations and Exhibit of "Disposition of Disciplinary Case." Petition (Doc. 1-1) at 3-4. In the latter document, defendant High set forth all the evidence presented at the hearing including Beauclair's statements and Kemp's testimony. Nurse Kemp testified that her name was signed upon Beauclair's hand-copied form 9 grievance but was not written by her. After continuing the hearing to consult with other prison officials, High found Beauclair guilty reasoning that "no inmate should be able to sign another person's signature to any paperwork, and the courts never stated the signature could be copied." Id. at 4.

Plaintiff's claim that defendant Kemp filed a "false" disciplinary report does not entitle him to relief. A prisoner's allegations of false disciplinary reports do not give rise to a due process claim, provided the disciplinary proceedings otherwise are adequate. See, e.g., Smith v. Messinger, 293 F.3d 641, 654 (3rd Cir. 2002)(prisoner that had a hearing and could challenge prison official's alleged perjury in a disciplinary proceeding received adequate due process); Freeman v. Rideout, 808 F.2d 949, 951-2 (2nd Cir. 1986)("The prison inmate has no constitutionally guaranteed immunity from being falsely or wrongly accused of conduct which may result in the deprivation of a protected liberty interest;" and false disciplinary charge does not give rise to per se constitutional violation, provided the inmate is given an adequate hearing and opportunity to rebut the false charges pursuant to Wolff. ). In this case, it is apparent from plaintiff's vindication on administrative appeal that adequate due process was provided.

In sum, plaintiff's allegations that he was charged with an offense, initially found guilty, and the guilty finding was overturned on administrative appeal evince no federal constitutional violation. His civil rights complaint based upon this utterly ordinary and harmless incident that has already been remedied is frivolous.

3. Retaliation Claim

"[I]f in fact DOC officials retaliated against [plaintiff] based on his filing administrative grievances, they may be liable for a violation of his constitutional rights." Fogle, 435 F.3d at 1264. However, Mr. Beauclair's claim of retaliation is subject to dismissal for two main reasons. First, before such a claim may be litigated in federal court, 42 U.S.C. § 1997e(a) requires that administrative remedies were fully exhausted. Griffin, 65 Fed.Appx. at 661. It appears from plaintiff's own exhibits that he has not exhausted his claim that Kemp's act of writing a DR was retaliatory. Id. The grievances provided by Mr. Beauclair do not include a claim of retaliation against Kemp or the other defendants. Instead, plaintiff asserted the lack of substantial evidence to establish his guilt. The Tenth Circuit addressed a similar situation and determined that the prisoner's appeal of his misconduct conviction did not satisfy the exhaustion requirement as to the prisoner's claim that the misconduct was brought against him as a form of retaliation. Carr v. Brill, 187 Fed.Appx. 902, 905 (10th Cir. 2006). Here, Mr. Beauclair provides exhibits regarding his efforts to exhaust his due process claims, but makes no attempt to show that he exhausted his retaliation claims. Plaintiff is barred by § 1997e(a) from pursuing his retaliation claim in federal court until he has fully and properly exhausted the available prison administrative remedies.[14]

Even if plaintiff can prove that he exhausted his retaliation claim, it is subject to dismissal because the facts alleged in support are not specific. As noted, an "inmate claiming retaliation must allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights." Courts have recognized that in retaliation claims the presentation of circumstantial evidence such as temporal proximity, a chronology of events, or suspicious timing may be sufficient to support allegations of retaliation. See Maschner, 899 F.2d at 949 (holding that the inmate sufficiently supported retaliation claim with "only means available to him-circumstantial evidence of the suspicious timing of his discipline, coincidental transfers of his witnesses and assistants"). Plaintiff alleges that defendant Kemp wrote the DR charging him with forgery in retaliation for a prior grievance he had written against her. However, as noted, Mr. Beauclair does not include the prior grievance that he allegedly wrote against defendant Kemp among his many exhibits. Nor does he adequately summarize the facts upon which his grievance against Kemp was based or provide the administrative response. "A plaintiff's subjective beliefs about why the government took action, without facts to back up those beliefs, are not sufficient." Nielander, 582 F.3d at 1165; see also Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999)("[T]he inmate must allege more than his personal belief that he is the victim of retaliation."). Plaintiff's bald allegation that defendant Kemp acted in retaliation because of his prior grievance is not supported by sufficient facts.

In addition, plaintiff alleges no facts whatsoever showing that the alleged retaliatory act by Kemp, that is the writing of the DR against him, would not have occurred "but for" defendant Kemp's retaliatory motive. See Murray v. Albany County Board of County Commissioners, 211 F.3d 1278 (10th Cir. Apr. 20, 2000)(Table)(inmate's claim of retaliation under § 1983 should have been dismissed without prejudice for failure to state a valid claim in the absence of allegations involving retaliatory motive, causation, and personal participation). Plaintiff does not describe circumstantial or other evidence in his possession from which the court could plausibly conclude that Kemp wrote the DR against him due to his engagement in protected activities or that she would not have written the DR "but for" those activities. The record shows that Kemp wrote the DR against Mr. Beauclair after she became aware that he had written her name as a signature upon his hand-copied form 9 grievance and she recognized that this signature was not her writing.[15] Plaintiff never denied that he wrote Kemp's name as a signature on his document.[16]

In any event, the record discloses that Kemp's DR has not chilled plaintiff's pursuit of legal claims. A review of this court's records reveals to the contrary that subsequent to Kemp's DR, Mr. Beauclair filed six new civil lawsuits in this court. Nor does plaintiff allege facts showing that his grievance filing was "chilled" by Kemp's DR. His own allegations and exhibits describe other circumstances[17] that are the likely source of any "chilling effect" upon plaintiff's apparent abuse of the prison grievance process. Plaintiff does not allege that these limitations upon his grievances were imposed by defendants, were motivated by retaliation, or amount to arbitrary or unreasonable action on the part of defendants.

Plaintiff's allegations that defendants Zenk and High were personally involved in the constitutional violation by Kemp, knew of her violations but failed to act to prevent them, and unreasonably approved the DR finding that plaintiff's handwritten copy of the IR constituted forgery when plaintiff had no intent to defraud are likewise without merit for the foregoing reasons.[18]

4. Other Claims

Plaintiff's claims that Kemp acted in an "arbitrary and capricious" manner and that the acts of defendants Zenk and High were "arbitrary and capricious" are conclusory statements that are not supported by the facts alleged in the complaint. The same is true of plaintiff's claims that the acts of defendants Zenk and High violated K.A.R. XX-XX-XXX and XX-XX-XXX and that defendant Zenk violated his duty under K.A.R. XX-XX-XXX(c)(3) and (4). Moreover, the latter claims are allegations of state law violations, which are not grounds for relief under § 1983.

REQUESTS FOR RELIEF

Plaintiff's specific request for injunctive relief is for an order against future prison transfers. This request is not supported by sufficient factual allegations or legal authority. The court does not have general authority to override decisions of the KDOC as to the placement and transfer of state inmates. Plaintiff does not even allege that any named defendant caused his past transfers and does not allege facts showing that his federal constitutional rights would be violated by a future transfer. Thus, plaintiff is not entitled to the specific injunctive relief that he requests.

Nor has plaintiff alleged facts showing his entitlement to damages. As noted, his allegations and exhibits show that his disciplinary conviction was quickly overturned on administrative appeal and thus indicate that he suffered no actual injury that might entitle him to damages under § 1983. He does not suggest that he suffered any physical injury as a result of defendants' acts. 42 U.S.C. § 1997e(e) provides, in pertinent part:

No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act....

42 U.S.C. § 1997e(e). It follows that plaintiff's claim for damages based on an alleged injury to his liberty interest or of retaliation is also barred by § 1997e(e). Furthermore, Mr. Beauclair presents no plausible basis for a claim of punitive damages in the amount of $50, 000 or any other amount because he alleges no facts whatsoever showing that any defendant acted with a sufficiently culpable state of mind.

OTHER FILINGS

Plaintiff submitted two documents among his "exhibits" that are entitled "Declaration." The first (Exh. B, Doc. 1-1 at 20) is not dated, signed, or sworn to under penalty of perjury. This "declaration" is not a proper amendment or supplement to plaintiff's complaint, and although its content has been considered by the court, it is an improper filing.

Plaintiff's second "Declaration" (Exh. G, Doc. 1-1 at 31) is not dated. Therein, plaintiff complains about prison transfers since his incarceration in 2002 and baldly claims they were "all due to retaliation." He further alleges that he has filed "many grievances at each prison facility" mainly dealing with the denial of adequate medical treatment and complains that he been denied adequate care and that his grievances have been mishandled. This is not a proper amendment or supplement to the complaint.[19] At the end of his complaint, plaintiff claims that this declaration (Exh. G) is "of retaliation in the past for the injunction relief." The grounds for plaintiff's claim for injunctive relief must have been stated in his form complaint. The court finds that this declaration is improper and, in any event, finds that the allegations therein are nothing more than conclusory statements. If plaintiff submits additional improper "declarations" in this or other cases, they may be disregarded by the court.

Plaintiff's "Request" for "Service of Summons" (Doc. 6) has been considered and is denied. Summons shall not be ordered by the court until a complaint has survived screening.

DIRECTIONS TO PLAINTIFF

Mr. Beauclair is ordered to show cause why the complaint filed herein should not be dismissed as frivolous and for failure to state a claim for relief. See 28 U.S.C. § 1915(e)(2)(B)(ii) ("Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that... the action... fails to state a claim on which relief may be granted"). Plaintiff is warned that his failure to file a timely response may result in the complaint being dismissed for the reasons stated herein without further notice.

Mr. Beauclair is notified that evidence of his exhaustion of administrative remedies, like evidence of his claims, is not to be submitted with the complaint as exhibits. Instead, proof of either exhaustion or claims is generally not required until later stages in judicial proceedings. Nevertheless, when such exhibits are provided with the complaint, their content may be considered by the court during screening.

Mr. Beauclair has been designated a three-strikes litigant as a result of his abusive litigation practices. The court finds that plaintiff's pleadings, the averments in his declarations, and his exhibited administrative records along with filings in his other pending and closed cases reflect that he consistently exaggerates complaints of being mistreated or retaliated against. His filings further reflect his consistent inability or refusal to comply with prison and court rules and directives and to accept that he is subject to the authority of correctional officials. Mr. Beauclair has continuously filed prison grievances and civil rights actions in this court in which he aims to manipulate or personally attack correctional officials. The instant action appears to be a personal attack upon and attempt to manipulate defendants that is subject to dismissal as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).

Plaintiff is advised that this Memorandum and Order is not a final judgment in this case and thus a motion for relief from judgment would not be appropriate.

IT IS THEREFORE BY THE COURT ORDERED that plaintiff is granted thirty (30) days in which to show cause why this action should not be dismissed for the reasons set forth herein.

IT IS FURTHER ORDERED that plaintiff's Request for Service of Summons (Doc. 6) is denied.

IT IS SO ORDERED.


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