United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW
CROW, U.S. SENIOR DISTRICT JUDGE.
Dale, an inmate confined in the El Dorado Correctional
Facility in El Dorado, Kansas, filed a pro se civil rights
complaint pursuant to 42 U.S.C. § 1983. He proceeds in
forma pauperis. Plaintiff's complaint rambles and
appears to have been filed with a page missing. From a
careful review, however, the court has gleaned that in 2013
and 2014 Mr. Dale was assaulted by gang members at the
correctional facilities in Lansing and Hutchinson because he
is a jailhouse informant. As relief, he seeks (1) a
declaratory judgment stating that he has the right to be free
from assault by other inmates and that defendants have
violated his Eighth Amendment rights; (2) injunctive relief
that prevents defendants from transferring him to the
correctional facilities in Lansing or Hutchinson or keeping
him at El Dorado, and which requires defendants to transfer
plaintiff to a facility in Norton, Oswego, or somewhere else
safe; and (3) $75, 000 in compensatory damages, $10, 000 per
defendant in punitive damages, and costs and fees.
UNDER 28 U.S.C. § 1915A
court is required by statute to screen the 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 pro se party's complaint must be given a liberal
construction. Haines v. Kerner, 404 U.S. 519, 520
(1972). However, a party proceeding pro se has “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).
considered plaintiff's allegations, the court finds the
complaint is subject to summary dismissal for several
reasons. First, any claims related to the alleged assaults,
which occurred in 2013 and 2014, are time-barred. The Supreme
Court directs courts to look to state law for the appropriate
period of limitations in cases filed under 42 U.S.C. §
1983. Wilson v. Garcia, 471 U.S. 261, 266-67 (1985).
In Kansas, that period is two years. See Baker v. Board
of Regents of State of Kan., 991 F.2d 628, 630-31 (10th
Cir. 1993) (two-year statute of limitations in K.S.A. 60-513
applies to civil rights actions brought pursuant to 42 U.S.C.
§ 1983). Plaintiff also presents no argument or
allegation that he has exhausted administrative remedies with
respect to the alleged assaults. Under 42 U.S.C. §
1997e(a), “a prisoner must exhaust his administrative
remedies prior to filing a lawsuit regarding prison
conditions in federal court.” Id. This
exhaustion requirement “is mandatory, and the district
court [is] not authorized to dispense with it.”
Beaudry v. Corrections Corp. of Am., 331 F.3d 1164,
1167 n. 5 (10th Cir. 2003), cert. denied, 540 U.S. 1118
(2004); Little v. Jones, 607 F.3d 1245, 1249 (10th
Cir. 2010). The court may dismiss sua sponte a prisoner
complaint when it is clear on the face of the complaint that
the prisoner has not exhausted administrative remedies.
See Aquilar-Avellaveda v. Terrell, 478 F.3d 1223,
1225 (10th Cir. 2007). Accordingly, to the extent plaintiff
attempts to bring claims arising out of the alleged assaults,
those claims are subject to dismissal as time-barred and for
failure to exhaust available administrative remedies before
filing this action.
with regard to his housing assignment request, plaintiff
fails to state a constitutional claim because prisoners have
no constitutional right to choose their housing assignment -
either in any particular prison or portion of a prison.
See Montez v. McKinna, 208 F.3d 862, 866
(10th Cir. 2000). Moreover, since the inception of
this lawsuit, plaintiff has notified this court of his
transfer to Norton Correctional Facility, which appears to
moot this issue. Accordingly, plaintiff's claims
regarding his housing assignment are also subject to
pending before the court are plaintiff's motion to file
under seal and gag order all defendants (Doc. 2), motion for
preliminary injunction (Doc. 4), motion to appoint counsel
(Doc. 9), and two emergency motions requesting a ruling on
plaintiff's motion for preliminary injunction (Doc. 11)
and a telephone hearing on his motion (Doc. 12).
support of his motion to seal this case and place a gag order
on all defendants, plaintiff conclusorily alleges that
correctional facility staff commonly engage in unspecified
“inappropriate and often illegal acts” and often
disseminate critical information causing unspecified
“serious injuries and risks” to other inmates and
staff. Plaintiff alleges that he fears for his personal
safety if staff are permitted disclose information about the
suit to other staff or inmates. It is within the court's
discretion whether, or the extent to which, judicial records
and other case-related information should be sealed or
otherwise withheld from the public. Mann v.
Boatright, 477 F.3d 1140, 1149 (10th Cir.
2007) (internal quotations omitted). The longstanding
common-law right of access to judicial records can be limited
only if “countervailing interests heavily outweigh the
public interest in access.” Id. The party
seeking to limit access bears the burden to show a
significant interest that outweighs the presumption of
access. Id. In this case, plaintiff seeks not to
shield specific sensitive information, but rather to hide the
existence of his case from public view. The court finds
plaintiff's vague concerns about possible retaliation
insufficient, however, to outweigh the presumption of access.
The motion to seal is therefore denied.
the court denies plaintiff's motions for preliminary
injunction, appointment of counsel, and emergency motions.
There is no constitutional right to appointment of counsel in
a civil action. Durre v. Dempsey, 869 F.2d 543, 547
(10th Cir. 1989); Carper v. Deland, 54 F.3d 613, 616
(10th Cir. 1995). The decision whether to appoint counsel in
a civil matter lies in the discretion of the district court.
Williams v. Meese, 926 F.2d 994, 996 (10th Cir.
1991). The burden is on the applicant to convince the court
that there is sufficient merit to his claim to warrant
appointment of counsel. Steffey v. Orman, 461 F.3d
1218, 1223 (10th Cir. 2006) (citing Hill v. SmithKline
Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004)).
The court has considered the potential merit of
plaintiff's claims along with other pertinent factors,
and finds that appointment of counsel is not warranted at
respect to plaintiff's requests for a preliminary
injunction and telephone hearing, plaintiff alleges that he
believes he will be transferred to another facility soon and
seeks an injunction that prevents defendants from
transferring him to the correctional facilities in Lansing or
Hutchinson or keeping him at El Dorado, and which requires
defendants to transfer plaintiff to a safer facility. To
obtain a preliminary injunction, the movant must show: (1) a
substantial likelihood of success on the merits; (2)
irreparable harm to the movant if the injunction is denied;
(3) the threatened injury outweighs the harm that the
preliminary injunction may cause the opposing party; and (4)
the injunction, if issued, will not adversely affect the
public interest. Schrier v. University of Colo., 427
F.3d 1253, 1258 (10th Cir. 2005); Kikumura v.
Hurley, 242 F.3d 950, 955 (10th Cir. 2001).
“Because a preliminary injunction is an extraordinary
remedy, the right to relief must be clear and
unequivocal.” Greater Yellowstone Coalition v.
Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003). And, the
Tenth Circuit disfavors preliminary injunctions (such as
this) which (1) alter the status quo, (2) are mandatory as
opposed to prohibitory, or (3) afford the movant
substantially all the relief he may receive at the conclusion
of a full trial on the merits. O Cento Espirita
Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973,
977 (10th Cir. 2004) (citing SCFC ILC, Inc. v. Visa USA,
Inc., 936 F.2d 1097, 1098 (10th Cir. 1991)); see
also Fundamentalist Church of Jesus Christ of Latter-Day
Saints v. Horne, 698 F.3d 1295, 1301 (10th Cir. 2012).
As such, a movant who seeks a disfavored preliminary
injunction must demonstrate that “on balance, the four
factors weigh heavily and compellingly in his favor.”
O Cento Espirita, 389 F.3d at 977. For reasons
already stated, the court finds that plaintiff has not shown
a likelihood of success on the merits. Moreover, plaintiff is
not entitled to a hearing because he has not alleged
sufficient facts to support either the granting of a
preliminary injunction or the finding of a federal
plaintiff's motions to file under seal and gag order all
defendants (Doc. 2), for preliminary injunction (Doc. 4), to
appoint counsel (Doc. 9), and requesting a telephone hearing
on his motion (Doc. 12) are denied. Plaintiff's motion
requesting a ruling on the motion for preliminary injunction
(Doc. 11) is denied as moot.
reasons stated herein, it appears that this action is subject
to dismissal in its entirety as frivolous and for failure to
state a claim. Plaintiff is therefore required to show good
cause why his complaint should not be dismissed for the
reasons stated herein. Plaintiff is also given the
opportunity to file a complete and proper Amended Complaint
upon court-approved forms that cures all the deficiencies
discussed herein. If he does not file an Amended Complaint
within the prescribed time that cures all the deficiencies
discussed herein, this matter will be decided based upon the
current deficient complaint.
IS THEREFORE ORDERED BY THE COURT that plaintiff is
granted until November 26, 2017, to show good cause, in
writing, to the Honorable Sam A. Crow, United States District
Judge, why plaintiff's ...