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Chubb v. Keck

United States District Court, D. Kansas

May 29, 2019

MICHAEL R. CHUBB, Plaintiff,
v.
TIM KECK, et al., Defendants.

          MEMORANDUM AND ORDER

         This matter is a civil rights action filed pursuant to 42 U.S.C. § 1983. By order dated September 27, 2018, the Court directed Plaintiff to show cause why his complaint should not be dismissed for reasons outlined in that order. In lieu of filing a response to the show cause order, Plaintiff filed an amended complaint (ECF No. 13-1).

         The amended complaint attempts to address the issues identified in the show cause order and also adds a claim that Defendants interfered with Plaintiff's free exercise rights under the First Amendment. Plaintiff names five (5) new defendants. The Court has the same duty to screen the amended complaint as the original complaint. Upon completion of this screening, the Court must dismiss any claim that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

         Background

         Plaintiff has been adjudged a sexually violent predator and involuntarily committed to the Kansas Sexual Predator Treatment Program (SPTP) at Larned State Hospital (LSH) since 2010. Plaintiff's amended complaint (ECF No. 13-1) alleges Defendants violated his religious freedom under the First Amendment, interfered with the delivery of his mail, and conducted unlawful searches and seizures of his personal property. Plaintiff names as defendants Tim Keck, Secretary of the Kansas Department of qAging and Disability Services; Bill Rein, Superintendent of LSH; Michael Dixon, Director of the Sexual Predator Treatment Program (SPTP); Haleigh Bennett, Program Manager; Tony Schwabauer, Chief of Security, LSH; Kevin Stegman, Special Investigator; Gerry Dirks, Special Investigator; Jeff Brown, LSH Chaplain; Heather Keller, SPTP Property Officer; Marshall Newell, SPTP Property Officer; and Christina Rose, SPTP Property Officer.

         Plaintiff requests relief in the form of a declaration that Defendants violated his due process rights; an order enjoining Defendants from taking retaliatory action against him; a declaration that his rights were violated by LSH Security Officers conducting warrantless searches and seizures; an order enjoining Defendants from conducting warrantless searches and seizures in the future; the return of his property; punitive damages of $10, 000 from each defendant; compensatory damages of $10, 000 from each defendant; and costs, fees and expenses.

         Discussion

         Religious Freedom

         Plaintiff states he is a member of a Native American religious callout group called Gray Wolf. He was kicked out of the callout and began practicing individually in April of 2018. Plaintiff alleges he repeatedly submitted requests to purchase religious supplies necessary to his worship, such as leather, beads, sage and tobacco, but that his requests were ignored or rejected by Defendants Bennett, Newell and Brown. He further alleges Defendant Brown coerced the members of Gray Wolf to pressure Plaintiff to rejoin the callout by ignoring their requests for supplies and promising to restore their privileges if Plaintiff rejoined the group. In addition, a member of Gray Wolf informed Plaintiff that Defendant Bennett planned to send Plaintiff to the punishment unit if he did not rejoin Gray Wolf. On August 4, 2018, Plaintiff rejoined Gray Wolf under duress. Plaintiff claims the actions of these defendants violated his First Amendment rights. The Court finds that the proper processing of Plaintiff's First Amendment claim cannot be achieved without additional information from appropriate officials of LSH. See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978); see also Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991). Accordingly, the Court orders the appropriate officials of LSH to prepare and file a Martinez report. Once the report has been received, the Court can properly screen this claim under 28 U.S.C. § 1915.

         Interference with Mail

         Plaintiff list a number of instances where Defendants allegedly interfered with his mail:

1) Plaintiff received a Nintendo DS in the mail from an approved vendor on September 20, 2017. Defendant Rose informed Plaintiff that LSH security officers wanted to search the package. Plaintiff requested and was denied a “shakedown” report. Defendant Rose said his request was a refusal and issued Plaintiff a rights restriction for restriction of his mail.
2) On November 28, 2017, LSH Security Officer Kirts opened and searched a package containing an audio equalizer Plaintiff had ordered from an authorized vendor. Plaintiff consented to this after being told the equalizer would not be allowed into the building if he did not consent. The opening was performed outside Plaintiff's presence.
3) Plaintiff states he received approval to order a RangeMaster X-Treme (a long-range FM transmitter). When it arrived, Defendant Newell issued a rights restriction and returned the package without notice to Plaintiff. Plaintiff alleges Defendant Newell, an SPTP Property Officer, took this action in retaliation for Plaintiff filing a grievance against LSH Security for opening his mail outside his presence. According to Plaintiff, these events were duplicated two more times.
4) On two occasions, Plaintiff gave letters he had written to his court-appointed attorney to unit staff, requesting postage be applied in accordance with the indigent postage policy. Defendant Bennett never responded to Plaintiff's indigent ...

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