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Drake v. Underwood

United States District Court, D. Kansas

November 5, 2019

MARCUS TODD DRAKE, Plaintiff,
v.
(FNU) UNDERWOOD, et al., Defendants.

          MEMORANDUM AND ORDER TO SHOW CAUSE

          SAM A. CROW, U.S. SENIOR DISTRICT JUDGE

         Plaintiff Marcus Todd Drake. brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff proceeds in forma pauperis. Mr. Drake is a prisoner at the El Dorado Correctional Facility in El Dorado, Kansas. For the reasons discussed below, Plaintiff is ordered to show cause why his complaint should not be dismissed.

         I. Nature of the Matter before the Court

         Plaintiff's Third Amended Complaint (ECF No. 32) alleges the defendants “purposely and repeatedly harassed and targeted plaintiff due to [his] being of the Asatru faith” while he was housed at the Winfield Correctional Facility (WCF). Id. at 3. He brings 24 counts claiming violation of his rights under the First, Fourth, Eighth and Fourteenth Amendments, as well as violation of the Religious Land Use and Institutionalized Persons Act (RLUPIA). He bases his claims on twelve (12) incidents: 1) two notebooks in Plaintiff's possession belonging to the Asatru Call-Out were confiscated; 2) two letters Plaintiff wrote were seized; 3) Plaintiff was charged with a disciplinary violation for allegedly altering an “O” in a sentence into an Aryan cross; 4) two study guides in Plaintiff's possession belonging to the Asatru Call-Out were confiscated; 5) the Asatru Call-Out was told where to stand on the religious grounds; 6) at least two books belonging to the Asatru Call-Out and in Plaintiff's possession were confiscated; 7) a folder belonging to Plaintiff containing correspondence and grievances related to his claims was confiscated and possibly destroyed; 8) a book belonging to Plaintiff titled “Creed of Iron” was confiscated; 9) Plaintiff received a harsh disciplinary sentence as a result of a disciplinary hearing where no wrong-doing by Plaintiff was proved; 10) Plaintiff was placed in administrative segregation; 11) evidence was not made available to Plaintiff during a disciplinary hearing; and 12) Plaintiff was identified as a member of a security threat group (STG) and his custody level was raised from minimum to maximum.

         Plaintiff names nine (9) defendants: (FNU) Underwood, Corrections Officer (CO); (FNU) Gobel, Corrections Officer; (FNU) Woods, Corrections Officer; (FNU) Woods, Corrections Officer; Tyler Clark, Special Investigator; (FNU) Sharp, Corrections Officer; (FNU) McGuire, Corrections Officer; Grady Osborn, Chaplain; and (FNU) Wheeler, CSI. He requests relief in the form of $150, 000 in compensatory damages from each named defendant, $250, 000 in punitive damages from Defendant Clark, and an injunction ordering the Kansas Department of Corrections to remove his classification as a member of a Security Threat Group.

         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). Additionally, with any litigant, such as Plaintiff, who is proceeding in forma pauperis, the Court has a duty to screen the complaint to determine its sufficiency. See 28 U.S.C. § 1915(e)(2). 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

         Defendants

         To be properly named as a defendant in a § 1983 action, a person must personally participate in the alleged violation of constitutional rights. Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997). Plaintiff names two defendants, CO McGuire and Chaplain Osborn, whom he fails to mention as participating in any of the incidents of which he complains. Plaintiff fails to allege that either was personally involved in any violation of his constitutional rights. These two defendants are subject to dismissal from this lawsuit.

         First Amendment Free Exercise Claims

         Legal Standard

         “Inmates ... retain protections afforded by the First Amendment, including its directive that no law shall prohibit the free exercise of religion.” O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (citation omitted). Free exercise claims are subject to a two-step inquiry. First, the plaintiff has the burden of showing that a prison regulation or a defendant's actions “substantially burdened ... sincerely held religious beliefs.” Boles v. Neet, 486 F.3d 1177, 1182 (10th Cir. 2007). If the plaintiff meets this requirement, the burden shifts to the defendant to “identif[y] the legitimate penological interests that justif[ied];' the impinging conduct.” Id. (citing Salahuddin v. Goord, 467 F.3d 263, 275 (2d Cir. 2006)).

         The Tenth Circuit has identified “three broad ways government action may impose a substantial burden on religious exercise:”

requir[ing] participation in an activity prohibited by a sincerely held religious belief, or (2) prevent[ing] participation in conduct motivated by a sincerely held religious belief, or (3) plac[ing] substantial pressure on an adherent either not to engage in conduct motivated by a sincerely held religious belief or to engage in conduct contrary to a sincerely held religious belief, such as where the government presents the plaintiff with a Hobson's choice-an illusory choice where the only realistically possible course of action trenches on an adherent's sincerely held religious belief.

Strope v. Cummings, 381 Fed.Appx. 878, 881 (10th Cir. 2010) (citing Abdulhaseeb v. Calbone, 600 F.3d 1301, 1316) (10th Cir. 2010)). “[N]ot ‘every infringement on a religious exercise will constitute a substantial burden.'” Id. “[A]t a minimum the substantial burden test requires . . . more than an inconvenience to one's religious practice.” Id. at 882 (quoting Abdulhaseeb, 600 F.3d at 1316). Mere inconvenience, negligence, and isolated or sporadic incidents are not sufficient to show a substantial burden.

         Count 1

         Plaintiff claims his First Amendment rights were violated when Defendant Underwood confiscated two notebooks in Plaintiff's possession belonging to the Asatru Call-Out.

         The threshold consideration with a free exercise claim under the First Amendment is whether Plaintiff's belief is “sincerely held” and “religious in nature.” Searles v. Dechant, 393 F.3d 1126, 1131 (10th Cir. 2004) (citing DeHart v. Horn, 227 F.3d 47, 51 (3d Cir. 2000)). Plaintiff has included no allegation that his Asatru beliefs are sincerely held and religious in nature, nor does he include any facts from which such belief can be inferred.

         Plaintiff also fails to show that his beliefs were substantially burdened by Defendant Underwood. He includes no explanation of what was contained in the two confiscated notebooks or how their confiscation prevented him from practicing his religion. Plaintiff's conclusory allegation that the notebooks were somehow related to Asatru or “belonged” to the call-out are not sufficient. For these reasons, Plaintiff fails to state a claim in Count I of the complaint.

         Count 2

         Plaintiff claims his First Amendment rights were violated when Defendant Clark seized two out-going letters that “in no way promoted ‘gang activity' or ‘violence.'” ECF No. 31 at 6.

         “While ‘[c]orrespondence between a prisoner and an outsider implicates the guarantee of freedom of speech, 'Treff v. Galetka, 74 F.3d 191, 194 (10th Cir. 1996), the Supreme Court has recognized that the control of mail to and from prisoners is a necessary adjunct to penal administration.” Brown v. Saline Cty. Jail, 303 Fed.Appx. 678, 683 (10th Cir. 2008) (citing see Thornburgh v. Abbott, 490 U.S. 401, 407-08 (1989) (acknowledging that prison officials are better equipped than the judiciary to deal with the security implications of interactions between prisoners and the outside world)).

         As with Count 1, Plaintiff fails to include sufficient plausible factual allegations for the Court to evaluate this claim, such as, for example, who the letters were addressed to, when the seizures occurred, whether the letters were ultimately returned or mailed, whether Plaintiff received an explanation for the seizure, and whether he alleges the letters were related to his religious practice.

         Count 3

         Plaintiff claims his First Amendment rights were violated when Defendant Clark charged him with a disciplinary violation for altering an “O” in a sentence into an Aryan cross.

         Again, Plaintiff fails to explain which First Amendment rights he claims have been violated or any additional facts surrounding the disciplinary charge. The Court needs more information to be able to evaluate this claim.

         Count 4

         Plaintiff claims his First Amendment rights were violated when Defendant Woods confiscated two study guides in Plaintiff's possession belonging to the Asatru Call-Out.

         Plaintiff does not explain what was in the study guides and how their seizure substantially burdened his sincerely held religious beliefs or how they were essential to the free exercise of his religious beliefs. As with the previous counts, Count 4 is too general and vague to state an actionable claim.

         Count 6

         Plaintiff claims his First Amendment rights were violated when Defendant Gobel confiscated two books in his possession belonging to the Asatru Call-Out. Again, Plaintiff's ...


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