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Perry v. Richards

United States District Court, D. Kansas

September 20, 2019

ANTHONY ALLEN PERRY, Plaintiff,
v.
JEFFREY O. RICHARDS, et al., Defendants.

          ORDER TO SHOW CAUSE

          SAM A. CROW U.S. SENIOR DISTRICT JUDGE

         This matter is a civil rights action filed under 42 U.S.C. § 1983 by a person held at the Franklin County Jail (FCJ). Plaintiff proceeds pro se and in forma pauperis.

         Nature of the Complaint

         Plaintiff claims the defendants violated his constitutional rights by failing to provide him with access to a law library. He also claims the FCJ failed to provide him with an adequate grievance procedure. He seeks damages and injunctive relief.

         Screening

         A federal court must conduct a preliminary review of any case in which a prisoner seeks relief against a governmental entity or an officer or employee of such an entity. See 28 U.S.C. §1915A(a). Following this review, the court must dismiss any portion of the complaint that is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from that relief. See 28 U.S.C. § 1915A(b).

         In screening, a court liberally construes pleadings filed by a party proceeding pro se and applies “less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).

         To state a claim for relief under Section 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, 48-49 (1988)(citations omitted).

         To avoid a dismissal for failure to state a claim, a complaint must set out factual allegations that “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court accepts the well-pleaded allegations in the complaint as true and construes them in the light most favorable to the plaintiff. Id. However, “when the allegations in a complaint, however, true, could not raise a [plausible] claim of entitlement to relief, ” the matter should be dismissed. Id. at 558. A court need not accept “[t]hreadbare recitals of the elements of a cause of action supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather, “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 Tenth Circuit has observed that the U.S. Supreme Court’s decisions in Twombly and Erickson set out a new standard of review for dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii) dismissals. See Key v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007)(citations omitted). Following those decisions, 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 (quotation marks and internal citations omitted). A plaintiff “must nudge his claims across the line from conceivable to plausible.” Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). In this context, “plausible” 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 [the] claims across the line from conceivable to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (citing Twombly at 1974).

         Discussion Failure to provide adequate grievance procedures

         The Court first addresses plaintiff’s claim that the FCJ failed to provide him with an adequate grievance procedure. As a prisoner, plaintiff has no constitutionally protected interest in an administrative grievance procedure. See, e.g., Boyd v. Werholtz, 443 Fed.Appx. 331, 332 (10th Cir. 2011)(“there is no independent constitutional right to state administrative grievance procedures… [n]or does the state’s voluntary provision of an administrative grievance process create a liberty interest in that process.”). Therefore, “[a] viable due process claim cannot rest on allegations of an unfair or inadequate grievance process.” Burnett v. Allbaugh, 715 Fed.Appx. 848, 852 (10th Cir. 2017)(citing Von Hallcy v. Clements, 519 Fed.Appx. 521, 524 (10th Cir. 2013)(rejecting claim that prison director violated due process by failing to provide an adequate grievance reporting system)).

         Likewise, plaintiff’s contention that the failure to provide an adequate grievance procedure hindered or prevented him from complying with the Prison Litigation Reform Act (PLRA) is not well-taken. The PLRA requires a prisoner to exhaust only “such administrative remedies as are available” before commencing an action under federal law to challenge prison conditions. 42 U.S.C. §1997e(a).

         Denial of ...


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