United States District Court, D. Kansas
MICHAEL R. CHUBB, Plaintiff,
TIM KECK, et al., Defendants.
MEMORANDUM AND ORDER
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).
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).
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.
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.
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.
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