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Bell v. FNU English

United States District Court, D. Kansas

January 11, 2019

STEVEN BELL, Plaintiff,
v.
FNU ENGLISH, Warden, USP-Leavenworth, et al., Defendants.

          MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE

          Sam A. Crow U.S. Senior District Judge

         Plaintiff Steven Bell 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 complaint that cures all the deficiencies discussed herein.

         I. Nature of the Matter before the Court

          Plaintiff proceeds pro se and in forma pauperis in this prisoner civil rights action. At the time of filing, Plaintiff was in federal custody at USP-Leavenworth in Leavenworth, Kansas (“USPL”). Plaintiff alleges that on May 16, 2018, CO Green observed a torn towel coming from Plaintiff's cell in the SHU during the “towel exchange.” Despite Plaintiff's request to be written up, Green instead returned with Lt. Ratz and proceeded to strip Plaintiff and his cell mate and remove all of their clothing and bedding, replacing them with paper clothing and sheets. Plaintiff alleges that the paper sheets did not cover the mattress, which was unsanitary. Plaintiff alleges he has had a staph infection since touching the mattress. Plaintiff alleges that the SHU walls are caked with black mold. Plaintiff alleges that while Plaintiff was being stripped, “he” told Plaintiff about other inmates who had been beaten for breaking the warden's rules and stated that they could have been beaten as well as shot with the “bean bag gun” even if they complied. Plaintiff did not feel safe in the SHU and sought psychological help.

         Plaintiff also alleges that staff have denied him due process, access to the courts and legal materials, including the law library, and denied processing legal mail and forms to exhaust administrative remedies. Plaintiff alleges that Defendant Dahmer has refused to allow Plaintiff to exhaust his administrative remedies, denied visitation and verbally abused Plaintiff with profane language. Plaintiff alleges that staff have processed some of his forms, but at least five have been destroyed. Plaintiff alleges that “they” are retaliating by hindering Plaintiff's legal efforts to get relief. Defendant Wilson denied copies to Plaintiff stating that he “should have thought of that before reporting them.” Plaintiff claims that either mailroom staff or SHU staff have tampered with his legal mail. Plaintiff alleges that in early June he received a letter from his lawyer which was opened in the mailroom without Plaintiff being present. Plaintiff alleges that he also received a 1983 on July 6 that was dated June 11 and had been held for a few weeks. Plaintiff also alleges that staff intentionally rerouted his mail because a 2241 he addressed to this Court was received back from the Kansas Supreme Court. Since that incident Plaintiff has not been allowed to seal his legal mail. Plaintiff alleges that he has been denied copies, visitation with family and legal calls while housed in the SHU. Plaintiff alleges that on July 6, 2018, CO McCall violated his right to due process by denying him a disciplinary hearing after a verbal altercation and took a Bible and a bag of Doritos out of Plaintiff's cell without issuing a “shakedown slip.” Plaintiff alleges that he was unable to practice his religion because he was without his Bible for three days.

         Plaintiff names as Defendants Warden English; CO Green; Counselor B. Dahmer; B-Unit Manager Wilson; Unidentified Mailroom Worker; Two Unidentified SHU Workers; and CO McCall. Plaintiff seeks injunctive relief: to be able to seal his legal mail; to prevent his legal mail from being tampered with; to be provided with forms to exhaust administrative remedies; for his forms to be processed in a timely manner; access to the law library three times per week; access to legal materials, legal copies, real pens, and paper; to prevent staff from retaliating against him; and that no attempts be made to circumvent Plaintiff's medical hold to transfer Plaintiff until after scheduled medical procedures. Plaintiff also seeks $100, 000 “for paper days ($50, 000 per day);” $50, 000 for his skin infection scarring and damage from paper; $10, 000 for each day he was without his Bible; $100, 000 for violation of due process; $100, 000 for verbal abuse by Dahmer; $100, 000 for retaliation by Wilson; $100, 000 for violating the Eighth Amendment; $200, 000 in punitive damages; and $200, 000 in psychological damages.

         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. Injunctive Relief

         Plaintiff seeks injunctive relief. Plaintiff was transferred to a halfway house and is no longer housed at USPL.[1] Because Plaintiff's request relates solely to alleged wrongdoing on the part of USPL employees, the Court would be unable to provide Plaintiff with effective relief and his requests for injunctive relief are moot. Article III of the Constitution extends the jurisdiction of federal courts only to “live, concrete” cases or controversies. Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1109 (10th Cir. 2010). “Article III's requirement that federal courts adjudicate only cases and controversies necessitates that courts decline to exercise jurisdiction where the award of any requested relief would be moot-i.e. where the controversy is no longer live and ongoing.” Cox v. Phelps Dodge Corp., 43 F.3d 1345, 1348 (10th Cir. 1994), superseded by statute on other grounds. Consequently, “[m]ootness is a threshold issue because the existence of a live case or controversy is a constitutional prerequisite to federal court jurisdiction.” Rio Grande, 601 F.3d at 1109 (internal quotations and citations omitted).

         “Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief.” O'Shea v. Littleton, 414 U.S. 488, 4951974). The Tenth Circuit has applied this principle to § 1983 actions brought by inmates, and held that an inmate's transfer from one prison to another generally renders moot any request for injunctive relief against the employees of the original prison concerning the conditions of confinement. See Green v. Branson, 108 F.3d 1296, 1299-1300 (10th Cir. 1997); see also Wirsching v. Colorado, 360 F.3d 1191, 1196 (10th Cir. 2004) (inmate's release from prison moots his claims for declaratory and injunctive relief); McAlpine v. Thompson, 187 F.3d 1213, 1215 (10th Cir. 1999) (recognizing prisoner's release from prison mooted his § 1983 claim for injunctive relief); Love v. Summit County, 776 F.2d 908, 910 n.4 (10th Cir. 1985) (noting transfer of inmate to different prison renders his § 1983 claim for injunctive relief moot); see also Pfeil v. Lampert, 603 Fed.Appx. 665, 668 (10th Cir. 2015) (unpublished) (holding that “RLUIPA claims regarding prison conditions become moot if the inmate plaintiff is released from custody.”) (citations omitted).

         The mootness doctrine is based on the reality that even if the inmate receives injunctive relief, the defendants from the former prison would be unable to provide the relief to plaintiff. Because Plaintiff is no longer incarcerated at USPL, his claims for injunctive relief are moot and subject to dismissal.

         2. Denial of Access to the Courts

         Plaintiff's claim that he was denied access to the courts fails 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)). The Court notes that ...


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