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Jackson v. Sauers

United States District Court, D. Kansas

December 18, 2018

MARTIN SAUERS, et al., Defendants.


          Sam A. Crow U.S. Senior District Judge

         Plaintiff Dennis L. Jackson 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 the opportunity to file a complete and proper amended that cures all the deficiencies discussed herein.

         I. Nature of the Matter before the Court

          Plaintiff brings this pro se civil rights action under 42 U.S.C. § 1983. In Count I, Plaintiff alleges a denial of access to the courts. Plaintiff alleges that since his transfer to D-Unit on May 18, 2018, he has made continuous requests to access the law library to obtain legal information for filing civil claims regarding black mold. Plaintiff also sought information to file civil complaints for prison officials removing his previously-approved attorney phone numbers. Plaintiff also alleges that his “no stairs” restriction hindered his use of the law library. Plaintiff alleges that the law library is inadequate because it contains only one computer terminal, and no legal journals, reference books, administrative laws or rules. Plaintiff sent Form 9 communications to the UTMs and was told he needed to sign a medical waiver regarding his “no stairs” restriction if he wanted law library access.

         In Count II Plaintiff alleges retaliation, claiming that he received no written response to his Form 9 communications, but rather only verbal responses from staff telling him they had no authority to address his issues or giving him “indifferent responses.” (Doc. 1, at 6.) Plaintiff sought a transfer due to the threat of black mold infections and the denial of protective custody. Plaintiff alleges that since filing his grievances he has been “spoken to in a condescending manner by medium custody Unit Team Manager Mr. Pfanstiel, with comments of ‘I believe your conspiracy/paranoia issues are running amok’ and ‘Why do you think no one wants you at their facility?’” Id. Plaintiff also alleges that his previously agreed to transfer was being denied “under premises of [his] medical condition.” Plaintiff alleges that this is an invalid reason to deny his transfer because his requested facility has an entire floor/wing for persons with physical impairments or ambulatory issues. Plaintiff also alleges that staff warned him that he would be given a disciplinary violation if he went upstairs to the law library against medical orders.[1]

         Plaintiff names as Defendants Martin Sauers, Warden at Ellsworth Correctional Facility; and Joel Hrabe, Warden at Norton Correctional Facility. Plaintiff seeks compensatory damages, nominal damages in the amount of $2,500,000, punitive damages in the amount of $750,000, and a “physical examination by ‘outside’ licensed physicians including chest x-rays, blood test, etc. . . . to detect any infections of Black Mold or respiratory ailments or other related diseases.” Plaintiff also requests that all responsible parties involved be reprimanded and ordered to refrain from retaliating. Id. at 10.

         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. Denial of Access to the Courts

          Plaintiff claims that he was denied access to the courts due to his inability to use the law library and due to the inadequacy of the law library. Plaintiff has failed to allege an actual injury. See Proch v. Baker, No. 14-3021-CM, 2017 WL 2793922, at *7 (D. Kan. June 28, 2017) (citing Lewis v. Casey, 518 U.S. 343, 349 (1996) (violations of the constitutional right of access to the courts require a showing of injury due to the deprivation); Sterling v. Edwards, 881 F. Supp. 488, 490 (D. Kan. 1995) (there must be prejudice)).

         Although it is well-established that a prison inmate has a constitutional right of access to the courts, it is equally well-settled that in order “[t]o present a viable claim for denial of access to courts, . . . an inmate must allege and prove prejudice arising from the defendants’ actions.” Peterson v. Shanks,149 F.3d 1140, 1145 (10th Cir. 1998) (citations omitted); Lewis v. Casey, 518 U.S. 343, 349 (1996) ...

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