United States District Court, D. Kansas
JAMES D. BAZZOON, Plaintiff,
CLAUDE MAYE, et al., Defendants.
MEMORANDUM AND ORDER AND ORDER TO SHOW
J. Waxse U.S. Magistrate Judge
Plaintiff is an inmate at the United States Penitentiary
Coleman II (USP Coleman II), in Coleman, Florida. He filed
this pro se civil rights complaint under Bivens v. Six
Unknown Agents of Fed. Bureau of Narcotics, 403 U.S.
388, 91 S.Ct. 1999 (1971). Pursuant to plaintiff’s
motion for leave to proceed in forma pauperis under 28 U.S.C.
§ 1915, the court directed an initial partial filing fee
of $45.00. (Doc. 6). Based on plaintiff’s failure to
pay this assessed fee, the court entered an order and
judgment on September 13, 2016, dismissing this case without
prejudice pursuant to Fed. R. Civ. P. 41(b). (Docs. 7 &
matter is before the court on a letter from plaintiff, which
the court construes as a motion to reopen the case. (Doc. 9).
In the motion, plaintiff contends that he submitted to USP
Coleman II a request for withdrawal of fees which was
rejected, that his prisoner account is or was
“frozen”, and that because he is housed in the
special housing unit, he has limited access to his prisoner
account and to mail, which is sometimes delayed up to a week.
He encloses with his motion copies of two letters he sent to
the court regarding the delay, as well as a copy of the form
for withdrawal of fees. On November 7, 2016, the court received
$10.00 from plaintiff’s prisoner account and to date,
he has paid at least $261.40 of the required $350.00 fee.
Accordingly, the court grants plaintiff’s motion and
vacates the order and judgment dated September 13, 2016.
UNDER 28 U.S.C. § 1915
brings two Bivens claims arising out of an assault
that occurred on or about February 23, 2015, while he was
confined at the United States Penitentiary Leavenworth (USP
Leavenworth). In the first count, plaintiff brings claims
that defendants (all of whom are various employees at USP
Leavenworth) knew he was a former “Tango Blast”
gang member but placed plaintiff in the
“mainline” prison population anyway, and
therefore violated the Eighth Amendment when seven Tango
Blast members assaulted him. In the second count, plaintiff
claims defendant Maye violated the Eighth Amendment by
accepting plaintiff at USP Leavenworth knowing
plaintiff’s status as a former member of Tango Blast,
and by adopting an unwritten policy allowing ex-gang members
into the active yard where he was assaulted.
plaintiff is a prisoner, the court is required to screen the
complaint and dismiss it 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). The 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). But, a pro se
litigant’s conclusory allegations without supporting
facts “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 [pro se]
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).
considered plaintiff’s allegations, the court finds the
complaint is subject to summary dismissal because it fails to
state a claim upon which relief can be granted. To state an
Eight Amendment Bivens claim for denying humane
conditions of confinement, plaintiff must allege that each
defendant both knew of and disregarded an excessive risk to
plaintiff’s health or safety. Smith v. U.S.,
561 F.3d 1090, 1104-5 (10th Cir. 2009). Negligent
failure to protect inmates from assaults by other inmates is
not actionable under the Eighth Amendment. Farmer v.
Brennan, 511 U.S. 825, 835 (1994). The failure of a
prison official to protect an inmate from an attack by other
inmates rises to the level of an Eighth Amendment violation
only when the defendant prison official acted with
“wanton or obdurate disregard for or deliberate
indifference to” the protection of the life of a
prisoner. Rider v. Werholtz, 548 F.Supp.2d 1188,
1195 (D. Kan. 2008) (quoting Harris v. Maynard, 843
F.2d 414, 416 (10th Cir. 1988). In other words,
plaintiff must allege that each defendant official both knew
of facts from which the inference could be drawn that a
substantial risk of harm existed, and also that each such
official actually drew the inference. Smith at 1105
(quoting Robbins v. Oklahoma, 519 F.3d 1242, 1249-50
(10thCir. 2008)). Finally, in cases such as this
which involve claims against multiple government actors, the
complaint must make clear “exactly who is alleged to
have done what to whom, to provide each individual defendant
with fair notice” of the basis of the claims against
him or her. Id.
respect to Count I, plaintiff alleges that he told each
defendant about his status as an ex-gang member. Plaintiff
further alleges that at least two “John Doe”
defendants told him he would have no problems on the
“mainline”. Plaintiff alleges that he was later
assaulted. With respect to Count II, plaintiff alleges that
defendant Maye acted with deliberate indifference when he
accepted plaintiff at USP Leavenworth and when he adopted an
unwritten policy of placing ex-gang members into active
population. He alleges that pursuant to this policy, one of
the John Doe defendants was absent from his assigned post
when the assault occurred.
construing the complaint, plaintiff seems to allege that
defendants should have known that placing plaintiff –
as an ex-member of “Tango Blast” – on the
“mainline” was an excessive risk to his safety.
Similarly, plaintiff seems to allege that defendant Maye
should have known that accepting plaintiff at USP Leavenworth
and that having a policy of placing ex-gang members on the
“mainline” were excessive risks to his safety.
Plaintiff must do more, however, than allege that defendants
should have known of the risk of harm. See Verdecia v.
Adams, 327 F.3d 1171, 1175-6 (10th Cir.
2003). The complaint contains no allegation that any
defendant drew any inference that plaintiff faced a
substantial risk of harm. In fact, plaintiff presents
evidence to the contrary – at least two defendants told
plaintiff he would have “no problems on the
mainline”. Accordingly, plaintiff fails to meet the
deliberate indifference pleading requirements and therefore
fails to state a claim upon which relief may be granted.
IS THEREFORE BY THE COURT ORDERED that
plaintiff’s motion to reopen case (Doc. 9) be and
hereby is granted.
IS FURTHER ORDERED that the court’s order
(Doc. 7) and judgment (Doc. 8) of September 13, 2016, be and
hereby are vacated.
IS FURTHER ORDERED that plaintiff is given
twenty-one (21) days to show good cause in writing to the
Honorable Sam A. Crow, United States Senior District Judge,
why plaintiff’s complaint should not be dismissed for
failing to state a claim upon which relief may be granted.