United States District Court, D. Kansas
Crow U.S. Senior District Judge
pro se civil rights action was filed pursuant to 42 U.S.C.
§ 1983 by a prisoner confined at the Lansing
Correctional Facility in Lansing, Kansas. He alleges
violations of the First Amendment, 42 U.S.C. § 1985(2),
and the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”), 42 U.S.C. § 2000cc-1, against
the Sedgwick County Sheriff's Office, Chaplain Kasper,
Sandi R., the City of Wichita, and Sedgwick County, Kansas.
In Count I, plaintiff alleges an unintelligible cause of
action against the City of Wichita, the Sedgwick County
Sheriff's Office, and Sedgwick County, Kansas, which
plaintiff claims were “delinquent in the discovery and
inspection of” his records and failed to investigate
and correct unnamed institutional and civil rights violations
after plaintiff signed for a release of records to the
Sedgwick County sheriff's office in 2015. In Count II,
plaintiff alleges that in July of 2017, Sandi R. failed to
provide him with specific Hindu texts he requested but
provided a Bible to plaintiff's friend the month before.
In Count III, plaintiff alleges that in July of 2017, the
chaplaincy department failed to put him on a certified
religious diet despite his request for one. As relief,
plaintiff requests $10, 000, 000.
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 dismissal because plaintiff
acknowledges that he has not exhausted administrative
remedies on his claims. 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). To
justify this lack of exhaustion, plaintiff conclusorily
alleges that city, county and jail officials
“led” him to think that his “alleged
incident was not a grievance matter”. He further
conclusorily alleges that he was not treated equally to other
inmates which caused him “dissatisfaction with
litigation strategy” and that he suffered from
“individualized retaliatory actions”. He does not
explain, however, how these conclusory allegations excuse him
from complying with the exhaustion requirement. Accordingly,
the court finds that plaintiff's complaint is subject to
dismissal without prejudice based on his failure to exhaust
available administrative remedies before filing this action.
Count I against City of Wichita, the Sedgwick County
Sheriff's Office, and Sedgwick County, Kansas, is
problematic for several reasons. First, a governmental entity
may not be held liable under § 1983 unless the entity
itself supported the violation of rights alleged. Monell
v. Dep't of Social Servs. of City of N.Y., 436 U.S.
658, 691 (1978). As such, liability generally attaches to a
governmental entity when the alleged injury is caused by the
entity's policy or custom. Id., at 694.
Plaintiff makes no such allegation in his complaint, and as
such, his claim against these defendants is subject to
dismissal. Furthermore, the allegations in this count - that
defendants failed to properly inspect plaintiff's records
- alleges no apparent constitutional violation and is
therefore subject to dismissal for failure to state a claim.
plaintiff fails to allege personal participation by Chaplain
Kasper in any purported constitutional violations. Personal
liability under § 1983 must be based upon personal
involvement in the alleged constitutional violation.
Foote v. Spiegel, 118 F.3d 1415, 1423
(10thCir. 1997). The complaint contains no
allegations whatsoever about Chaplain Kasper, much less
allegations that Chaplain Kasper personally participated in
any alleged constitutional violation. Accordingly, Chaplain
Kasper is subject to dismissal from this action.
pending before the court is plaintiff's application for
leave to proceed in forma pauperis. (Doc. 2). The court
previously calculated an initial partial filing fee of $2.50
under 28 U.S.C. § 1915(b)(1), which plaintiff paid on
February 26, 2018. The court therefore grants plaintiff's
application (Doc. 2) 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 motion to set aside the order
assessing the initial partial filing fee (Doc. 4) is
overruled as moot.
IS THEREFORE ORDERED BY THE COURT that plaintiff is
granted until April 15, 2018, to show good cause, in writing,
to the Honorable Sam A. Crow, United States District Judge,
why plaintiff's claims should not be dismissed for the
reasons stated herein.
IS FURTHER ORDERED that until April 15, 2018,
plaintiff may file a complete and proper Amended Complaint to
cure all the deficiencies discussed herein.
IS FURTHER ORDERED that plaintiff's application
for leave to proceed in forma pauperis (Doc. 2) is granted,
and plaintiff's motion to set aside the order assessing
the initial partial filing fee (Doc. 4) is overruled as moot.
clerk is directed to send forms and instructions to plaintiff
and to send 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.