United States District Court, D. Kansas
MEMORANDUM AND ORDER TO SHOW CAUSE
CROW U.S. SENIOR DISTRICT JUDGE
matter is a civil rights action filed under 42 U.S.C. §
1983 by a prisoner in pretrial detention. Plaintiff proceeds
pro se and seeks leave to proceed in forma pauperis.
motion to proceed in forma pauperis
motion is governed by 28 U.S.C. § 1915(b). Because
plaintiff is a prisoner, he must pay the full filing fee in
installment payments taken from his prison trust account when
he “brings a civil action or files an appeal in forma
pauperis[.]” § 1915(b)(1). Pursuant to §
1915(b)(1), the court must assess, and collect when funds
exist, an initial partial filing fee calculated upon the
greater of (1) the average monthly deposit in his account or
(2) the average monthly balance in the account for the
six-month period preceding the filing of the complaint.
Thereafter, the plaintiff must make monthly payments of
twenty percent of the preceding month's income in his
institutional account. § 1915(b)(2). However, a prisoner
shall not be prohibited from bringing a civil action or
appeal because he has no means to pay the initial partial
filing fee. § 1915(b)(4).
support of his motion, plaintiff submits a one page,
hand-written affidavit that appears to identify deposits to
his institutional account (Doc. 3, Attach., p. 1). However,
the in forma pauperis statute requires a prisoner to
“submit a certified copy of the trust fund account
statement (or institutional equivalent) for the prisoner for
the 6-month period immediately preceding the filing of the
complaint… obtained from the appropriate official of
each prison at the which the prisoner is or was
confined.” 28 U.S.C. § 1915(a)(2). Because
plaintiff has not submitted a certified financial statement,
as required by the governing statute, the Court will direct
him to provide that information.
of the Complaint
complaint primarily concerns the processing of materials in
plaintiff's state criminal action. Plaintiff names as
defendants Jacob Conard, the prosecutor; Forrest Lowry, his
former defense counsel; LaDell Turley, the court reporter;
Hope Brittain, a legal assistant to the prosecutor; and
Michelle Tippie, the administrator of the Cherokee County
Jail. In Count 1, plaintiff alleges he was denied access to
the courts by alterations to the court transcripts. In Count
2, he asserts the prosecution seized a case file without a
search warrant when defendant Lowry turned over his case file
to defendants Conard and Brittain after being released from
the case, allowing the prosecution access to confidential
information. In Count 3, he challenges the denial of access
to his legal work following his placement in segregation in
the Cherokee County Jail.
large part, this matter is nearly identical to Case No.
19-3093-SAC, Waterman v. Conard, et al. In that
case, the Court explained to plaintiff that abstention under
Younger v. Harris, 401 U.S. 37, 43 (1971), is
appropriate pending the resolution of his pending state
criminal action and in the absence of any extraordinary
circumstances that would warrant the Court's interference
in that matter. The Court subsequently dismissed that matter
without prejudice upon plaintiff's motion.
conducting an initial review of plaintiff's present
complaint, the Court has reviewed on-line records maintained
by the state district courts and has confirmed that the
criminal proceedings against plaintiff remain pending.
Therefore, for the same reasons that were set out in No.
19-3093, the Court advises plaintiff that it must abstain
from any substantive consideration of his claims against
participants in those proceedings until that matter is
resolved. The Court will allow plaintiff an opportunity to
respond to this finding.
plaintiff presents a related claim challenging the denial of
access to his legal materials due to his placement in
segregation at the jail. To proceed on this claim, plaintiff
must show “actual injury” to demonstrate a
violation of the right to access the courts by showing that
this deprivation prejudiced him in pursuing litigation.
Treff v. Galetka, 74 F.3d 191, 194 (10th
Cir. 1996). A prisoner may make the showing of actual injury
by showing that the action by the defendants “hindered
his efforts to pursue” a non-frivolous legal claim.
Lewis v. Casey, 518 U.S. 343, 351-53 (1996). See
also Burnett v. Jones, 437 Fed.Appx. 736, 744
(10th Cir. 2011)(“To state a claim for
violation of the constitutional right to access the courts, a
prisoner ‘must demonstrate actual injury … that
is, that the prisoner was frustrated or impeded in his
efforts to pursue a nonfrivolous legal claim concerning his
conviction or his conditions of
confinement.'”)(quoting Gee v. Pacheco,
627 F.3d 1178, 1191 (10th Cir. 2010)).
to Show Cause
the Court directs plaintiff (1) to show cause why the Court
should not abstain and stay action in this matter on his
claims concerning the participants in his state criminal
action pending the completion of that matter and (2) to
demonstrate actual injury from his inability to access his
legal materials due to his placement in segregation.
THEREFORE, BY THE COURT ORDERED plaintiff is granted to and
including January 27, 2020, to submit a
certified statement showing the financial transactions in his
institutional account ...