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Hughes v. Schnurr

United States District Court, D. Kansas

May 1, 2019

CHARLEY HUGHES, Plaintiff,
v.
DAN SCHNURR, et al., Defendants.

          MEMORANDUM AND ORDER

          SAM A. CROW U.S. SENIOR DISTRICT JUDGE

         Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. The Court granted Plaintiff leave to proceed in forma pauperis. (Doc. 5.) Plaintiff is incarcerated at the Hutchinson Correctional Facility in Hutchinson, Kansas (“HCF”).

         I. Nature of the Matter before the Court

         Plaintiff alleges that on April 17, 2017, his monthly subscription of San Francisco Bay View Newspaper was censored by Defendant Brooke Combs. Plaintiff appealed the censorship and his appeal was denied by Defendant Doug Burris. Plaintiff also alleges that Defendants censored Plaintiff's Socialist Viewpoint publication. Plaintiff alleges that the news that is reported in the newspaper and magazines is also reported on TV and radio as well as in other newspapers that are allowed into the prison, such as USA Today, prison legal news and local papers. Plaintiff also claims that Defendants did not notify the publisher that the publications were being censored. Plaintiff claims violations of his First Amendment rights and to his Fourteenth Amendment right to equal protection.

         Plaintiff names as defendants: Dan Schnurr, HCF Warden; Brooke Combs, Publication Review Officer; Doug Burris; and Pat Keen. Plaintiff seeks nominal damages, compensatory damages of $1, 000.00, a declaratory judgment, and a permanent injunction enjoining Defendants from withholding his subscription of Bay View and Socialist Viewpoint.

         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

         Plaintiff takes issue with HCF staff censoring his publications. Plaintiff acknowledges in his Complaint that he has brought a previous lawsuit regarding censorship of his publications. (Doc. 1, at 4.) Plaintiff refers to No. 15-3158-EFM-GEB, and alleges that the case is “currently on appeal.” Id. However, the appeal was dismissed as untimely on February 14, 2018. See Hughes v. Bos, No. 18-3008 (10th Cir. Feb. 14, 2018) (dismissing appeal in Case No. 15-3158-EFM-GEB). In Plaintiff's previous case, the Court granted Defendants Bos and Shipman's motion for summary judgment, finding that they were entitled to qualified immunity. Hughes v. Bos, No. 15-3158-EFM-GEB, at Doc. 62. In the Memorandum and Order, the Court found that:

During 2015 and 2016, Plaintiff had a total of 16 publications censored and denied pursuant to K.A.R. 44-12-601 and I.M.P.P. 12-134 Uniform Review of Publication. The stated reason for the censorship was that the publications posed a threat to the safety and security of the institution. The censored publications include: “The San Francisco Bay View National Black Newspaper, ” “Turning the Tide, ” “The Burning Spear, ” “Change-Links Community Calendar & News, ” “MIM Theory, Psychology Imperialism Issue 9, ” “Instead of Prisons, ” “The CR Abolition Organizing Tool Kit by Shana Agid, ” “Abolition Now, ” and “Under Lock & ...

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