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Holt v. Patty

United States District Court, D. Kansas

September 29, 2017

WILLIAM R. HOLT, Plaintiff,
v.
KRISTEN PATTY, et al., Defendants.

          MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE

          SAM A. CROW, U.S. SENIOR DISTRICT JUDGE.

         Order Plaintiff William Holt is hereby required to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why this case should not be dismissed due to the deficiencies in Plaintiff's Complaint that are discussed herein. The Court also denies Plaintiff's requests for a preliminary injunction and for appointment of counsel.

         I. Nature of the Matter before the Court

         Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. The Court granted Plaintiff leave to proceed in forma pauperis. Plaintiff is incarcerated at the El Dorado Correctional Facility in El Dorado, Kansas (“EDCF”). Plaintiff filed a complaint on court-approved forms (Doc. 4), and attached his original non-compliant complaint (Doc. 1). The Court has considered Plaintiff's allegations as set forth in both complaints (together referred to as the “Complaint”).

         Plaintiff names as defendants: Kristen Patty, Attorney for Board of Indigent Defense; Patricia Scalia Director of the State Board of Indigent Defense Services; Jacob Fishman, Wyandotte County Prosecutor; Dan Schnurr, EDCF Warden; and Joe Norwood, KDOC Secretary of Corrections. Plaintiff alleges that all defendants conspired to violate his First, Sixth and Fourteenth Amendment rights.

         Defendant Fishman is the Wyandotte County Prosecutor that Plaintiff alleges illegally convicted him in his state criminal proceedings. Plaintiff alleges that he was illegally convicted in Wyandotte County District Court because: 1) the court lacked a factual basis upon which to accept Plaintiff's plea of no contest; and 2) the plea was the result of coercion.

         Plaintiff alleges that he was provided with ineffective assistance of counsel in his state criminal case. Plaintiff alleges that Defendant Patty, who was appointed to represent him on his criminal appeal in state court, provided ineffective assistance of counsel, and Defendant Scalia assigned him ineffective counsel by appointing Patty to Plaintiff's case.

         Plaintiff filed a motion for substitution of counsel in his criminal appeal on July 10, 2017, asking the court to remove Patty from his case and appoint substitute counsel. (Doc. 1-1, at 4.) The court denied the motion on July 17, 2017, finding that a criminal defendant is not guaranteed the right to counsel of choice and that “[i]f Appellant cannot work with Ms. Patty, Appellant will be allowed to proceed pro se or to retain counsel at his own expense.” Id. at 12. On August 23, 2017, the Kansas Court of Appeals granted Plaintiff's motion to remove counsel, interpreted Plaintiff's motion as a request to proceed pro se, and granted that request. (Doc. 4-1, at 3.) The court reminded Plaintiff “that pro se litigants are required to follow all Supreme Court rules, ” and that his “brief is due by September 13, 2017.” Id.

         Plaintiff alleges that after Plaintiff was ordered to proceed pro se in his criminal appeal, Defendant Schnurr, Warden at EDCF, and Defendant Norwood, Secretary of KDOC, refused to allow Plaintiff to debit the cost of indigent legal mail and copies to his account, thereby preventing Plaintiff from copying and mailing pleadings in the state court action and depriving him access to the courts. Plaintiff alleges that Defendants Schnurr and Norwood “will periodically allow Plaintiff copies or legal mail, and then shut him down, without warning [and] delaying filings.” (Doc. 4, at 13). Plaintiff claims he has been forced to sell food or other meaningful items to obtain postage or legal copy tickets. Id.

         Plaintiff attaches an EDCF Request for Legal Postage Credit dated May 15, 2017. (Doc. 1-1, at 49.) On May 16, 2017, the warden's designee recommended denial of the request because Plaintiff's postage credit was “in excess of $100.00 limit, ” and the warden disapproved the credit on May 18, 2017. Id. Plaintiff also attaches a KDOC Account Withdrawal Request dated August 17, seeking $10.00 payable to the EDCF Law Library for Indigent Legal Copies, which was approved by the unit team. Id. at 50. Plaintiff attaches a Form 9 Inmate Request to Staff Member dated August 28, 2017, in which he notifies staff that he is proceeding pro se in his direct appeal from his criminal conviction. (Doc. 4-1, at 1.) In the form, Plaintiff requests an extension of his credit for legal copies to allow him to comply with court orders in his appeal. Staff responds on September 6, 2017, that “[i]n accordance with IMPP 12-102 copy services are limited to $50.00, as your legal copies total is at $296.75 this does not allow you copies at this time.” Id.

         The Chief Deputy Clerk of the Kansas Court of Appeals notified Plaintiff by letter dated August 14, 2017, that her office had received a letter from Plaintiff postmarked August 7, 2017, with an enclosed document titled “Request for Remand and Rehearing.” (Doc. 1-1, at 24.) The clerk notified Plaintiff that the clerk's office could not file the document because Plaintiff was represented by counsel in his appeal, and under Kansas Supreme Court Rule 5.01(d) “[a] party represented by counsel may file a motion on the party's own behalf only to remove counsel or to file a supplemental brief.” Id.

         Plaintiff's request for relief includes a request for a temporary restraining order preventing defendants from denying him access to the courts; and the appointment of legal counsel “to aid in the preparation of a Petition for Writ of Mandamus pursuant to Supreme Court Rule 901 and to aid him in filing meaningful legal document to the Kansas Appellate Courts.” Plaintiff also asks the Court to exercise supplement jurisdiction over his tort claim against Defendant Patty “for legal malpractice and breach of contract to a third party beneficiary (Plaintiff).” (Doc. 4, at 7.)

         II. Statutory Screening of Prisoner Complaints

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)- (2).

         “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) (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). “[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.” Twombly, 550 U.S. at 555 (citations omitted). The complaint's “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, 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 a plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citation omitted).

         The Tenth Circuit has pointed out that the Supreme Court's decisions in Twombly and Erickson gave rise to a new standard of review for § 1915(e)(2)(B)(ii) dismissals. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (citations omitted); see also Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). As a result, courts “look to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief.” Kay, 500 F.3d at 1218 (citation omitted). Under this new standard, “a plaintiff must ‘nudge his claims across the line from conceivable to plausible.'” Smith, 561 F.3d at 1098 (citation omitted). “Plausible” in this context does not mean “likely to be true, ” but rather refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, ” then the plaintiff has not “nudged [his] claims across the line from conceivable to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S.Ct. at 1974).

         III. DISCUSSION

         1. Defendants Patty, ...


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