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McCoy v. Burris

United States District Court, D. Kansas

August 3, 2018

DERON MCCOY, JR., Plaintiff,
v.
DOUGLAS BURRIS, et al., Defendants.

          MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE

          Sam A. Crow U.S. Senior District Judge

         Plaintiff DeRon McCoy, Jr., is hereby required to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why this action should not be dismissed due to the deficiencies in Plaintiff's Complaint that are discussed herein. Plaintiff is also given an opportunity to file a proper amended complaint to cure the deficiencies.

         I. Nature of the Matter before the Court

         Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Although Plaintiff is currently incarcerated at the El Dorado Correctional Facility in El Dorado, Kansas (“EDCF”), the claims giving rise to his Complaint occurred during his incarceration at the Hutchinson Correctional Facility in Hutchinson, Kansas (“HCF”).

         In his Complaint, Plaintiff alleges that while he was an inmate at HCF his constitutional rights were violated when Defendants opened his legal mail outside of his presence. Plaintiff alleges that his legal mail was opened outside of his presence on three occasions. On April 7, 2017, UTS Drinkwater handed Plaintiff legal mail with a notation “opened in error by storeroom.” When Plaintiff pointed out that his legal mail had been opened, UTS Drinkwater stated that he would look into the situation to see what had happened and to make sure it did not happen again. On April 10, 2017, UTS Drinkwater again delivered legal mail to Plaintiff that had been opened outside of Plaintiff's presence and was signed for by Defendant Hamby.

         Plaintiff filed a grievance, and on April 20, 2017, received a response from Defendant Nickels, the UTM of A-cellhouse at HCF, stating that the problem had been addressed. Unsatisfied with this response, Plaintiff forwarded his grievance to the warden. The warden responded, stating that the “storeroom staff have been educated in the proper procedure in handling legal material mistakenly delivered to their location. I am confident this has been corrected and should not happen again.” Unsatisfied with this response, Plaintiff appealed his grievance to the KDOC Secretary of Corrections on May 21, 2017. On May 30, 2017, the Secretary of Corrections' designee, Defendant Burris, responded stating that “the response rendered to the inmate by staff at the facility is appropriate.” On July 17, 2017, UTS Drinkwater again gave Plaintiff legal mail that had been opened and resealed, with a note stating that it was “received from the storeroom already opened.”

         Plaintiff alleges that all three pieces of legal mail were marked “attorney client communication” in quarter-inch letters, and that Defendants “intentionally, willfully, maliciously and with reckless and callous indifference violated Plaintiff's rights by opening and reading the Plaintiff's legal correspondence from Plaintiff's attorney.” Plaintiff also alleges Defendants Burris, Schnurr, Richard Roe Mailroom Supervisor, and John Doe Storeroom Supervisor, failed to properly train and supervise Defendants Hamby, Zolam, Keen, Turner, John Doe Mailroom Worker and John Doe Storeroom Worker in the proper handling of legal mail. Plaintiff also claims that Defendants Burris, Schnurr, Nickels, Richard Roe Mailroom Supervisor, and John Doe Storeroom Supervisor, failed to stop the other Defendants from opening and reading Plaintiff's properly-identified legal mail. Plaintiff also alleges that for the three instances when his legal mail was opened, there was a delay of several days in receiving his legal mail because Defendants were withholding his mail “in an effort to try and conceal the fact that the Plaintiff's legal mail had been opened and read outside of Plaintiff's presence.”

         Plaintiff seeks nominal damages, punitive damages in the amount of $250, 000, a declaratory judgment, and a permanent injunction directing KDOC officials to stop opening and reading Plaintiff's legal mail outside of his presence.

         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 ‘entitle[ment] 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 ...


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