United States District Court, D. Kansas
DENNIS L. JACKSON, Plaintiff,
MARTIN SAUERS, et al., Defendants.
MEMORANDUM AND ORDER
CROW U.S. SENIOR DISTRICT JUDGE
brings this pro se civil rights action under 42
U.S.C. § 1983, alleging a denial of access to the courts
and retaliation. On December 18, 2018, the Court entered a
Memorandum and Order and Order to Show Cause (Doc. 8)
(“MOSC”), granting Plaintiff until January 18,
2019, to either show good cause why his Complaint should not
be dismissed or to file a proper amended complaint. The
Court's MOSC was mailed to Plaintiff at his current
address of record and was returned as undeliverable, with a
notation that Plaintiff was no longer at the facility. (Doc.
9.) The Court's Local Rules provide that “[e]ach
attorney or pro se party must notify the clerk in writing of
any change of address or telephone number. Any notice mailed
to the last address of record of an attorney or pro se party
is sufficient notice.” D. Kan. Rule 5.1(c)(3).
Plaintiff has failed to provide the Court with a Notice of
Change of Address.
Court found in the MOSC that Plaintiff's claim of denial
of access to the courts was subject to dismissal for failure
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) (“The requirement that an inmate . . .
show actual injury derives ultimately from the doctrine of
Court also found in the MOSC that Plaintiff failed to allege
how either of the named Defendants personally participated in
the deprivation of his constitutional rights. An essential
element of a civil rights claim against an individual is that
person's direct personal participation in the acts or
inactions upon which the complaint is based. Kentucky v.
Graham, 473 U.S. 159, 165- 66 (1985); Trujillo v.
Williams, 465 F.3d 1210, 1227 (10th Cir. 2006);
Foote v. Spiegel, 118 F.3d 1416, 1423-24 (10th Cir.
Court also found that although Plaintiff claims retaliation
in Count II, none of the staff mentioned in that count are
named as defendants. Furthermore, Plaintiff fails to state a
claim of retaliation. An “inmate claiming retaliation
must allege specific facts showing retaliation
because of the exercise of the prisoner's constitutional
rights.” Fogle v. Pierson, 435 F.3d 1252, 1264
(10th Cir. 2006) (quotations and citations omitted). Thus,
for this type of claim, “it is imperative that
plaintiff's pleading be factual and not conclusory. Mere
allegations of constitutional retaliation will not
suffice.” Frazier v. Dubois, 922 F.2d 560, 562
n. 1 (10th Cir. 1990). “To prevail, a prisoner must
show that the challenged actions would not have occurred
‘but for' a retaliatory motive.” Baughman
v. Saffle, 24 Fed.Appx. 845, 848 (10th Cir. 2001)
(citing Smith v. Maschner, 899 F.2d 940, 949-50
(10th Cir. 1990); Peterson v. Shanks, 149 F.3d 1140,
1144 (10th Cir. 1998)). Plaintiff fails to allege adequate
facts in support of his retaliation claim and fails to allege
which defendants retaliated. His allegations regarding
retaliation are generally conclusory, lacking facts to
demonstrate any improper retaliatory motive.
Court also found that because Plaintiff is no longer
incarcerated at Norton Correctional Facility, his requests
for injunctive relief are moot. In addition, Plaintiff's
request for compensatory damages is barred by 42 U.S.C.
§ 1997e(e), because Plaintiff has failed to allege a
physical injury. Plaintiff presents no plausible basis for a
claim of punitive damages because he alleges no facts
whatsoever establishing that any defendant acted with a
sufficiently culpable state of mind.
has failed to respond to the MOSC within the prescribed time.
The Court finds that this action should be dismissed for all
the reasons set forth in the MOSC.
IS THEREFORE ORDERED THAT this matter is dismissed
for failure to state a claim.