Opinion
24-3195-JWL
11-06-2024
TYRONE TERRY, Plaintiff, v. KANSAS DEPARTMENT OF CORRECTIONS, Central Inmate Banking, et. al, Defendants.
MEMORANDUM AND ORDER TO SHOW CAUSE
JOHN W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE
Plaintiff Tyrone Terry is hereby required to show good cause, in writing to the undersigned, why this action should not be dismissed due to the deficiencies in Plaintiff's Complaint that are discussed herein.
I. Nature of the Matter before the Court
Plaintiff brings this pro se civil rights action under 42 U.S.C. § 1983. Plaintiff is incarcerated at the El Dorado Correctional Facility in El Dorado, Kansas (“EDCF”). The Court provisionally grants Plaintiff leave to proceed in forma pauperis.
Plaintiff alleges that money was taken from his inmate account without his permission and without the required documents to process that request. (Doc. 1, at 2.) Plaintiff alleges that this was done to deprive him of his money and to force him to spend the money with Aramark- the company running food service and the kitchen-, the canteen, and Fresh Favorite Meals. Id.
Plaintiff alleges that his Eighth Amendment right to be free from cruel and unusual punishment was violated. Plaintiff alleges that during this “attempted forced expenditure,” Plaintiff was ridiculed, belittled, and verbally abused by staff and UTs. Id. Plaintiff alleges that he was mentally tormented by staff repeatedly belittling him and telling him to “just deal with it and get over it.” Id. at 3. Plaintiff claims the statements by staff were made knowing that was all the money Plaintiff had, and it caused him to cry repeatedly and beg for his money, which “caused further laughter on the facilit[y's] part.” Id.
Plaintiff also alleges that his due process rights were violated by the “illegal attempted theft taking money for services not requested or wanted by staff-Central Inmate Banking.” Id. Plaintiff also alleges that policies were not followed and guaranteed protections were not covered. Id. at 4.
Plaintiff states in his Complaint that he followed the administrative grievance procedures, but “stopped as money finally returned but only after mental breakdown beyond control.” Id. at 5. Plaintiff names as defendants: the Kansas Department of Corrections' (“KDOC”) Central Inmate Banking; and (fnu) Little, Unit Team Manager at EDCF. For relief, Plaintiff seeks $5,000 and the arrest and firing of all involved. Id.
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). 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
1. Cruel and Unusual Punishment
Plaintiff alleges that he was ridiculed, belittled, and verbally abused by staff and UTs at EDCF. The Tenth Circuit has found that “[m]ere verbal threats or harassment do not rise to the level of a constitutional violation unless they create ‘terror of instant and unexpected death.'” Alvarez v. Gonzales, 155 Fed.Appx. 393, 396 (10th Cir. 2005) (unpublished) (quoting Northington v. Jackson, 973 F.2d 1518, 1524 (10th Cir. 1992)). Where “the officers' comments, although inappropriate, do not suggest a show of deadly force,” they fail “to create ‘terror of instant and unexpected death.'” Id.; see also McBride v. Deer, 240 F.3d 1287, at 1291 n.3 (10th Cir. 2001) (“[A]cts or omissions resulting in an inmate being subjected to nothing more than threats and verbal taunts do not violate the Eighth Amendment.”) (citation omitted).
Plaintiff's claims regarding verbal harassment do not rise to the level of an Eighth Amendment violation. Plaintiff should show good cause why this claim should not be dismissed for failure to state a claim.
2. Due Process - Inmate Account
Plaintiff alleges that funds were taken from his prisoner account without his permission. However, he acknowledges that the funds have been returned. Even if the funds were not returned, and assuming Plaintiff could show that he has a property interest in his prison account,deprivations of property do not deny due process as long as there is an adequate post-deprivation remedy. Johnson v. Whitney, 723 Fed.Appx. 587, 593 (2018) (unpublished) (citing Hudson v. Palmer, 468 U.S. 517, 533 (1984) (“[A]n unauthorized intentional deprivation of property by a state employee does not constitute a [due-process] violation . . . if a meaningful postdeprivation remedy for the loss is available,” and “the state's action is not complete until it provides or refuses to provide a suitable postdeprivation remedy.”); see also Smith v. Colorado Dept. of Corr., 23 F.3d 339, 340 (10th Cir. 1994) (“Fourteenth Amendment due process guarantees pertaining to property are satisfied when an adequate, state postdeprivation remedy exists for deprivations occasioned by state employees.”).
See Leek v. Miller, 698 Fed.Appx. 922, 928-29 (10th Cir. June 7, 2017) (unpublished) (finding that the law in this circuit is not clearly established as to whether a prisoner has a protected property interest in his prison account).
Kansas prisoners have an adequate state post-deprivation remedy. See generally, Sawyer v. Green, 316 Fed.Appx. 715, 717, 2008 WL 2470915, at *2 (10th Cir. 2008) (finding Kansas county prisoner could seek relief in state courts to redress alleged deprivation of property). Plaintiff has failed to allege facts sufficient to show the lack of an adequate post-deprivation remedy. See Johnson v. Raemisch, 763 Fed.Appx. 731, 734 (10th Cir. 2019) (unpublished) (finding that indigence, lack of counsel, and confinement do not render a state post-deprivation remedy inadequate, and the fact that the state courts will not construe the claim as liberally as plaintiff would prefer does not suffice to show inadequacy).
A plaintiff must show that the deprivation imposes an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life, and facts sufficient to show the lack of an adequate post-deprivation remedy. In this case, Plaintiff acknowledges that the funds were returned after he initiated grievance procedures. Plaintiff should show good cause why his due process claim should not be dismissed for failure to state a claim.
3. Defendants
A. KDOC's Central Inmate Banking
Plaintiff names the KDOC's Central Inmate Banking as a defendant. The State of Kansas and its agencies are absolutely immune from suits for money damages under the Eleventh Amendment. The Eleventh Amendment presents a jurisdictional bar to suits against a state and “arms of the state” unless the state waives its immunity. Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013) (quoting Wagoner Cnty. Rural Water Dist. No. 2 v. Grand River Dam Auth., 577 F.3d 1255, 1258 (10th Cir. 2009)). Therefore, in the absence of some consent, a suit in which an agent or department of the state is named as a defendant is “proscribed by the Eleventh Amendment.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). It is well established that Congress did not abrogate the states' sovereign immunity when it enacted § 1983. Quern v. Jordan, 440 U.S. 332, 338-45 (1979); Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002).
For § 1983 purposes, a state official is the state itself when sued in his official capacity. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). A state officer sued in his official capacity also enjoys this protection. Colby v. Herrick, 849 F.3d 1273, 1276 (10th Cir. 2017).
“The Tenth Circuit has made it clear that where a claimant seeks relief against a KDOC official in his or her official capacity, the party seeks judgment against the KDOC itself, rendering the claim as one against the sovereign.” Jamerson v. Heimgartner, No. 5:17-3205-JAR-KGG, 2020 WL 1923074, at *10 (D. Kan. April 21, 2020) (citing Jones v. Courtney, 466 Fed.Appx. 696, 699 - 700 (10th Cir. 2012) (collecting cases)). Furthermore, state officers acting in their official capacity are not considered “persons” against whom a claim for damages can be brought under § 1983. Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989).
“A party's capacity to sue or be sued in federal court is determined by state law.” Sims v. Kansas Dep't of Corr., Case No. 18-01259-EFM-KGG, 2019 WL 4450671, at *4 (D. Kan. Sept. 17, 2019) (citation omitted). “Under Kansas law, absent express statutory authority, legislatively-created government agencies lack the capacity to sue or be sued.” Id. (citing Grayson v. Kansas, 2007 WL 1259990, at *3 (D. Kan. 2007) (citation omitted)). “The KDOC is a legislatively-created government agency, and Kansas law does not permit it to sue or be sued.” Id. (citing K.S.A. § 75-5203). Furthermore, as an agency of the State, the KDOC has absolute immunity under the Eleventh Amendment to a suit for money damages. See Kentucky v. Graham, 473 U.S. 159, 169 (1985) (“absent waiver by the State or valid congressional override, the Eleventh Amendment bars a damages action against a State in federal court”); see also Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (holding that “neither a State, nor its officials acting in their official capacities are ‘persons' under § 1983”).
B. Defendant Little
Plaintiff also names Little, EDCF UTM, as a defendant. In listing him as a defendant, Plaintiff describes Little as “employed by KDOC and responsible for all paperwork.” (Doc. 1, at 2.) Plaintiff does not mention Defendant Little in the body of his Complaint. Plaintiff has failed to allege how Defendant Little personally participated in the alleged deprivation of his constitutional rights. An essential element of a civil rights claim against an individual is that person's direct personal participation in the acts or inactions upon which the complaint is based. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011) (“But § 1983 imposes liability for a defendant's own actions-personal participation in the specific constitutional violation complained of is essential.”) (citing Foote v. Spiegel, 118 F.3d 1416, 1423-24 (10th Cir. 1997) (“Individual liability under § 1983 must be based on personal involvement in the alleged constitutional violation.”) (citation omitted)); Trujillo v. Williams, 465 F.3d 1210, 1228 (10th Cir. 2006) (“In order for liability to arise under § 1983, a defendant's direct personal responsibility for the claimed deprivation . . . must be established.”) (emphasis added) (citation omitted)). Conclusory allegations of involvement are not sufficient. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”). As a result, a plaintiff is required to name each defendant not only in the caption of the complaint, but again in the body of the complaint and to include in the body a description of the acts taken by each defendant that violated plaintiff's federal constitutional rights.
Mere supervisory status is insufficient to create personal liability. Duffield v. Jackson, 545 F.3d 1234, 1239 (10th Cir. 2008) (supervisor status is not sufficient to create § 1983 liability). An official's liability may not be predicated solely upon a theory of respondeat superior. Rizzo v. Goode, 423 U.S. 362, 371 (1976); Gagan v. Norton, 35 F.3d 1473, 1476 FN4 (10th Cir. 1994), cert. denied, 513 U.S. 1183 (1995). A plaintiff alleging supervisory liability must show “(1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation.” Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010), cert. denied, 563 U.S. 960 (2011). “[T]he factors necessary to establish a [supervisor's] § 1983 violation depend upon the constitutional provision at issue, including the state of mind required to establish a violation of that provision.” Id. at 1204 (citing Iqbal, 129 S.Ct. at 1949).
4. Request for Relief
Plaintiff seeks compensatory damages and to have staff arrested and fired. Plaintiff's request for compensatory damages is barred by 42 U.S.C. § 1997e(e), because Plaintiff has failed to allege a physical injury. Section 1997e(e) provides that “[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act (as defined in section 2246 of Title 18).” 42 U.S.C. § 1997e(e).
Plaintiff also seeks to have “staff” arrested and fired. Plaintiff does not have a private right of action to enforce criminal laws. As a general matter, federal criminal statutes that “do not provide for a private right of action” are “not enforceable through a civil action.” Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007). Further, the Court is not authorized to direct state or federal prosecutorial authorities to bring a criminal case against any defendants. See Maine v. Taylor, 477 U.S. 131, 136 (1986) (“the United States and its attorneys have the sole power to prosecute criminal cases in federal courts”); Lynn v. Cline, 2019 WL 2578241, at *2 (D. Kan. 2019) (“This Court cannot order the initiation of criminal charges, which is a decision within the discretion of prosecuting attorneys.”) (citing Presley v. Presley, 102 Fed.Appx. 636, 636-37 (10th Cir. 2004) (holding that a court order for “investigation and prosecution of various people for various crimes” would “improperly intrude upon the separation of powers”)); State ex rel. Rome v. Fountain, 678 P.2d 146, 148 (Kan. 1984) (“[A] private individual has no right to prosecute another for crime and no right to control any criminal prosecution when one is instituted. Thus, the philosophy of this state has always been that a criminal prosecution is a state affair and the control of it is in the public prosecutor.”).
Likewise, to the extent Plaintiff seeks to have staff terminated, the Court is without authority to grant such relief. See Nicholas v. Hunter, 228 Fed.Appx. 139, 141 (3rd Cir. 2007) (“The remaining relief requested is not available as the District Court lacks authority to order a federal investigation and prosecution of the defendants or the termination of their employment.”); Goulette v. Warren, No. 3:06CV235-1-MU, 2006 WL 1582386, at n.1 (W.D. N.C. June 1, 2006) (“The Court notes that even if Plaintiff's claims prevailed in this case, this Court would not, based upon this law suit, have the authority to order the termination of the Defendant's employment or to grant Plaintiff an immediate, early release from jail.”); Dockery v. Ferry, No. 08-277, 2008 WL 1995061, at *2 (W.D. Pa. May 7, 2008) (finding that the court cannot issue an order which would direct a local government to terminate a police officer's employment) (citing In re Jones, 28 Fed.Appx. 133, 134 (3rd Cir. 2002) (“Jones is not entitled to relief . . . [S]he asks this Court to prohibit the State of Delaware from filing charges against her. The federal courts, however, have no general power in mandamus action to compel action, or in this case inaction, by state officials.”)); Martin v. LeBlanc, No. 14-2743, 2014 WL 6674289, at n.1 (W.D. La. Nov. 24, 2014) (finding that where plaintiff requested an investigation, the termination of the defendants' employment and the closure of the prison, “[s]uch relief is not available in this action”); Merrida v. California Dep't of Corr., No. 1:06-CV-00502 OWW LJO P, 2006 WL 2926740, at n.1 (E.D. Cal. Oct. 11, 2006) (finding that where plaintiff prays for the termination of defendant's employment, “the court cannot award this form of relief to plaintiff) (citing 18 U.S.C. § 3626(a)(1)(A)).
IV. Response Required
Plaintiff is required to show good cause why his claims should not be dismissed for the reasons stated herein. Failure to respond by the deadline may result in dismissal of this case without further notice for failure to state a claim.
IT IS THEREFORE ORDERED BY THE COURT that the Court provisionally grants Plaintiff leave to proceed in forma pauperis. Plaintiff remains obligated to supply the financial information required by 28 U.S.C. § 1915(a)(2) by December 6, 2024, as ordered in the Court's Notice of Deficiency at Doc. 3.
IT IS FURTHER ORDERED that Plaintiff shall have until December 6, 2024, in which to show good cause, in writing to the undersigned, why this action should not be dismissed due to the deficiencies in Plaintiff's Complaint that are discussed herein.
IT IS SO ORDERED.