United States District Court, D. Kansas
JEFFREY J. SPERRY, Plaintiff,
LINDSEY WILDERMUTH, et al., Defendants.
MEMORANDUM & ORDER
J. WAXSE, U.S. MAGISTRATE JUDGE
a state prisoner appearing pro se, brings this 42 U.S.C.
§ 1983 civil rights complaint. Plaintiff also filed an
application for leave to proceed in forma pauperis and has
submitted the initial filing fee as directed. The Court
grants leave to proceed in forma pauperis. For the reasons
discussed below, Plaintiff is directed to file an amended
Screening of Prisoner Complaints
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
employee of such entity to determine whether summary
dismissal is appropriate. 28 U.S.C. § 1915A(a).
Additionally, with any litigant, such as Plaintiff, who is
proceeding in forma pauperis, the Court has a duty to screen
the complaint to determine its sufficiency. See 28
U.S.C. § 1915(e)(2). Upon completion of this screening,
the Court must dismiss any claim that is frivolous or
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary damages from a defendant who is
immune from such relief. 28 U.S.C. §§ 1915A(b),
survive this review, the plaintiff must plead “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). In applying the Twombly standard,
the Court must assume the truth of all well-pleaded factual
allegations in the complaint and construe them in the light
most favorable to the plaintiff. See Leverington v. City
of Colo. Springs, 643 F.3d 719, 723 (10thCir.
pro se plaintiff's complaint must be liberally construed,
Erickson v. Pardus, 551 U.S. 89, 94 (2007), pro se
status does not relieve the plaintiff of “the burden of
alleging sufficient facts on which a recognized legal claim
could be based.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). The Court need not
accept “mere conclusions characterizing pleaded
facts.” Bryson v. City of Edmond, 905 F.2d
1386, 1390 (10th Cir. 1990). “[A]
plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550
U.S. at 555 (internal quotation marks omitted).
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);
Northington v. Jackson, 973 F.2d 1518, 1523 (10th
Cir. 1992). In addressing a claim brought under § 1983,
the analysis begins by identifying the specific
constitutional right allegedly infringed. Graham v.
Connor, 490 U.S. 386, 393-94 (1989). The validity of the
claim then must be judged by reference to the specific
constitutional standard which governs that right.
is an inmate at the El Dorado Correctional Facility
(“EDCF”) in El Dorado, Kansas. He has been
incarcerated since 1997 and was previously housed at the
Lansing Correctional Facility (“LCF”) in Lansing,
Kansas. Plaintiff was transferred to EDCF on January 22,
2016, as a result of his placement in administrative
segregation. He has been held in administrative segregation
continuously since October of 2015. Mr. Sperry has studied
law throughout his incarceration and has helped many inmates
pursue grievances and legal claims, as well as pursuing
numerous grievances and claims of his own.
complaint includes fourteen (14) counts bringing at least
ninety-four (94) claims against twenty-four (24) defendants.
The Court finds the complaint is deficient in several
main claim Mr. Sperry seems to be making is one he never
specifically makes: retaliation. Construing his complaint
liberally, he appears to allege his assignment to and
continued confinement in administrative segregation (with the
resulting hardships inherent in such placement), interference
with his access to courts, interference with his mail, and
deprivation of his property are all the result of a
retaliatory motive on the part of primarily two defendants.
Plaintiff claims the retaliation is in response to his
actions in pursuing legal claims on his own behalf and on
behalf of other inmates.
Tenth Circuit has found “[i]t is well-settled that
prison officials may not retaliate against or harass an
inmate because of the inmate's exercise of his right of
access to the courts.” Gee v. Pacheco, 627
F.3d 1178, 1189 (10th Cir. 2010)(internal
quotation marks omitted), quoting Smith v. Maschner,
899 F.2d 940, 947 (10th Cir. 1990). In
Gee, the plaintiff had filed grievances against the
defendants and a habeas corpus petition. He alleged he was
subsequently transferred to an out-of-state supermax prison
in retaliation. The court found Mr. Gee had stated a claim
for retaliation because he identified a constitutionally
protected activity in which he had engaged, described a
responsive action that would chill a person of ordinary
firmness from continuing to engage in that activity, and
recited facts indicating the action was substantially
motivated as a response to his constitutionally protected
conduct (that the defendants were aware of his protected
activity, that his protected activity complained of the
defendants' actions, and that the transfer was in close
temporal proximity to the protected activity). Id.
The Tenth Circuit found this was sufficient for him to
proceed beyond the pleading stage. Id.
courts afford prison officials great discretion in the
management of prisoners and will typically find their actions
valid if they are reasonably related to legitimate
penological interests, prison officials do not have the
discretion to punish or retaliate against a prisoner for
exercising his constitutional rights. Prison officials may
not retaliate or harass an inmate under the guise of a
pretextual motive. See Gee, 627 F.3d at 1188.
Plaintiff's complaint must be construed liberally, the
Court will not construct legal arguments for a pro se
litigant. See Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 840 (10th Cir. 2005). If
Plaintiff decides to pursue a retaliation claim in an amended
complaint, he must adequately allege plausible facts
supporting all elements of the claim.
Improper Joinder of Claims
several of Plaintiff's fourteen (14) counts relate to his
placement and continued confinement in administrative
segregation and other allegedly retaliatory actions on the
part of some of the defendants, several counts are completely
unrelated and are improperly joined.
Federal Rules of Civil Procedure (FRCP) apply to suits
brought by prisoners. FRCP Rule 20(a)(2) governs permissive