United States District Court, D. Kansas
MEMORANDUM AND ORDER
Crow U.S. Senior District Judge.
pro se civil rights action was filed pursuant to 42 U.S.C.
§ 1983 by an inmate confined at the Lansing Correctional
Facility (LCF) in Lansing, Kansas. Plaintiff conclusorily
alleges that he has been hurt and extorted multiple times at
LCF, is unsafe there, and that as a result, his continued
confinement at LCF amounts to a violation of the Eighth
Amendment. On November 8, 2017, the court issued an order
assessing an initial partial filing fee and ordering
plaintiff to submit an amended complaint that identifies
proper defendants and provides specific allegations as to
each defendant, or risk dismissal for failure to state a
claim. (Doc. 7). On November 21, 2017, plaintiff timely
responded and filed an amended complaint, and on November 30,
2017, he paid the initial partial filing fee. The amended
complaint, however, fails to cure the deficiencies identified
in the court's order, and contains additional problems
which require dismissal.
previously noted, the 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
complaint (Doc. 5) against the Kansas Department of
Corrections failed to name a proper defendant because it is
not a “person” subject to suit under § 1983.
As such, the court directed plaintiff to submit an amended
complaint that named proper defendants and provided specific
allegations as to each defendant. In response, plaintiff
filed an amended complaint against three correctional
officers (Jillian Landwehr, Karen Armstrong, and Jack
Weishar) and one administrator (Rob Arnold) from LCF. (Doc.
8). In the amended complaint, plaintiff alleges that though
has been injured several times at LCF, he has been sent back
there “against his wishes” and that as such, he
was ultimately “forced to flee” the facility;
that he has been hurt and extorted, which he reported to the
counselors; and that “he reported all issues on paper
and in person to the above defendants several times to no
considered plaintiff's allegations, the court finds the
complaint is subject to summary dismissal for several
reasons. First, the amended complaint does not comply with
the court's order that plaintiff identify specific
conduct that he attributes to specific individual defendants
and is therefore deficient. Out of an abundance of caution,
however, the court has reviewed the allegations contained in
each of plaintiff's complaints, and similarly finds them
the gist of plaintiff's action is that he does not feel
safe at LCF and does not want to be housed there because he
has been “hurt” and “extorted”. He
states no constitutional violation, however, because
prisoners have no constitutional right to choose their
housing assignment, however. See Graham v. Stotts,
1993 WL 502 422, at *3 (D. Kan., Nov. 30, 1993) (citing
Meachum v. Fano, 427 U.S. 215 (1976)).
the facts alleged in the complaint do not support a claim for
deliberate indifference under the Eighth Amendment. To do so,
plaintiff must show both an objective component - that he was
incarcerated under conditions posing a substantial risk of
harm, and a subjective component - that prison officials were
deliberately indifferent to his safety. Verdecia v.
Adams, 327 F.3d 1171, 1175 (10th Cir. 2003)
(citing Benefield v. McDowall, 241 F.3d 1267, 1271
(10th Cir. 2001). Plaintiff conclusorily alleges
he has been “extorted” and has
“receipts”, but he provides no context - he does
not say how, why, when, or for what purpose the extortion
purportedly occurred, nor does he identify who purportedly
extorted him or how this extortion posed a substantial risk
of harm, much less that each defendant actually knew about
any such substantial risk of harm posed by the extortion.
And, though he alleges that other LCF inmates allegedly
attacked him at least twice and that he reported the attacks
to various LCF staff members, to state an Eighth Amendment
claim plaintiff must allege more. Negligent failure to
protect inmates from assaults by other inmates is not
actionable under the Eighth Amendment, so plaintiff must
allege not only that that each defendant should have known of
the risk of harm, but also that each defendant did, in fact,
draw such an inference. Farmer v. Brennan, 511 U.S.
825, 835 (1994); Smith v. U.S., 561 F.3d 1090,
1104-5 (10th Cir. 2009; see also Verdecia v.
Adams, 327 F.3d 1171, 1175-6 (10th Cir.
2003). The record contains no evidence that defendants knew
plaintiff's incarceration at LCF posed a substantial risk
of harm to him. Plaintiff's complaint must therefore be
has filed a Motion for Appointment of Counsel (Doc. 9). The
court has considered and denies this motion. No
constitutional right to appointment of counsel exists in a
civil action. The court has considered the potential merit of
plaintiff's claims along with other pertinent factors,
and finds that plaintiff has not asserted a colorable claim.
The court concludes that appointment of counsel is not
pending before the court are plaintiff's applications for
leave to proceed in forma pauperis. (Docs. 3 and 6). The
court previously calculated an initial partial filing fee of
$33.00 under 28 U.S.C. § 1915(b)(1), which plaintiff
paid on November 30, 2017. The court therefore grants
plaintiff's amended application (Doc. 6) and reminds
plaintiff of his obligation to pay the $350.00 filing fee,
and directs the agency having custody of plaintiff to forward
payments from plaintiff's account in installments
calculated under 28 U.S.C. § 1915(b)(2). Plaintiff's
initial application (Doc. 3) is overruled as moot.
IS THEREFORE ORDERED that this action is dismissed
and all relief is denied for failure to state a claim for
IS FURTHER ORDERED that plaintiff's motion for
appointment of counsel (Doc. 9) is denied.
IS FURTHER ORDERED that plaintiff's second
application for leave to proceed in forma pauperis (Doc. 6)
is granted. The agency having custody of plaintiff shall
forward payments from plaintiff's account in installments
calculated under 28 U.S.C. § 1915(b)(2). The clerk is
directed to transmit a copy of this order to plaintiff, to
the finance office at the institution where plaintiff is
currently confined, and to the court's finance office.
IS FURTHER ORDERED that plaintiff's first
application for leave to proceed in forma pauperis (Doc. 3)
is overruled as moot.