Guiden v. Werholtz, CASE NO. 11-3031-SAC
| Decision Date | 11 May 2011 |
| Docket Number | CASE NO. 11-3031-SAC |
| Parties | RONALD GUIDEN,Plaintiff, v. ROGER WERHOLTZ, SECRETARY OF CORRECTIONS, et al.,Defendants. |
| Court | U.S. District Court — District of Kansas |
This civil complaint, 42 U.S.C. § 1983, was filed pro se by an inmate of the Hutchinson Correctional Facility, Hutchinson, Kansas (HCF). Plaintiff complains that defendants took disciplinary action against him based on false information and without due process; provided false information to the parole board causing him to be denied parole; took his personal property without due process; held him in segregation, labeled him a sex offender, and placed him in a special management unit without evidence and without due process; suppressed his grievances; and retaliated against him. Plaintiff also claims that all defendants have falsified documents, segregation reports, and monthly review reports and taken part in illegal hearings and classification.
MOTION TO PROCEED WITHOUT FEES
Mr. Guiden has filed a motion for leave to proceed in forma pauperis (IFP). He is informed that even if he is granted such leave, he will remain obligated to pay the full filing fee for this civil action, which is $350.00. However, the fee will be collectedthrough payments automatically deducted from his inmate account until paid in full.1
Mr. Guiden is also informed that § 1915(b)(1) requires the court to assess an initial partial filing fee of twenty percent of the greater of the average monthly deposits or average monthly balance in the inmate's account for the six-month period immediately preceding the filing of a civil action. Having examined the record of plaintiff's account, the court finds that the average monthly deposit to his account over the relevant time period was $25.05, and the average monthly balance was $ 116.72. The court therefore assesses an initial partial filing fee of $23.00, twenty percent of the average monthly balance, rounded to the lower half dollar. Plaintiff must pay this initial partial filing fee in order for this action to proceed, and will be given time to submit the fee. His failure to submit the part fee in the time allotted may result in dismissal of this action without further notice.
BACKGROUND
Mr. Guiden is serving two active sentences. He was convicted of Aggravated Robbery and sentenced in 1982 and was paroled unsuccessfully in 1991 and 1993. He was convicted of Attempted Traffic Contraband-Correctional Institution and sentenced in 1996.
DEFENDANTS
The named defendants are Roger Werholtz, Kansas Secretary of Corrections (SOC) and the following employees at the HCF: Sam Cline, Warden; Berry Larson, Deputy Warden; Marjorie Vanhoose, Deputy Warden; Robert Vieyra, Classification Manager; Steve Schneider, Policy Compliance Officer; Jon Graves, Facility Legal Counsel; Tim Robinson, Special Agent, Evasion Apprehension and Investigations (EAI); J.W. Martin, Disciplinary Administrator; O. Nunez, Disciplinary Administrator; L.R. Snedeker, Property Officer; B. Blackmon, Unit Team Manager; D. McConaghy, Unit Team Manager; Misti Kroeker, Unit Team Manager; Carolyn Beir-ware, Unit Team Manager; Donald Moore, Unit Team Manager; Allyson Schrader, Unit Team personnel; Thomas Mack, Unit Team personnel; and P. James, Unit Team personnel.
Plaintiff also names another inmate as defendant. He alleges that this inmate is a convicted sexual predator who was housed at HCF and that this inmate struck plaintiff in the face causing him to lose a tooth. An inmate is not a proper defendant in a § 1983 complaint, since he is not a state official or employee and therefore does not act under color of state law. Accordingly, this action shall be dismissed as against this defendant.
Plaintiff names as additional defendants John and Jane Doe, and states they are persons who may become known through discovery. Plaintiff provides no descriptive information as to these unnamed defendants, which might allow service upon them. Nor does he suggest what unconstitutional acts they participated in. Accordingly, the court will dismiss these defendants from this action unless plaintiff provides additional sufficient information and facts regarding them.
CLAIMS AND REQUESTED RELIEF
Plaintiff generally asserts "multiple violations" of his rights under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments of the United States Constitution. He generally claims malicious prosecution, mental emotional torture, 2 denial of equal protection, racial discrimination, racial profiling, retaliation, denial of due process, denial of a fair and impartial hearing, and mistreatment of a confined person. He also claims that defendants conspired to violate his rights and failed to report the unconstitutional acts of others.
Plaintiff seeks a declaratory judgment that his constitutional rights have been violated. He also seeks injunctive relief against "all defendants" including the removal and expungement of all sex offender references in his file, and to direct the Kansas Parole Board (KPB) to reverse the denial of his parole. In addition, he seeks compensatory and punitive damages.
MOTION FOR PRELIMINARY INJUNCTION
Plaintiff has filed a "Motion for Injunction and Petition for Writ of Mandamus" (Doc. 5). As legal authority for this motion, he cites K.S.A. 60-901, 903, et seq., and K.S.A. 60-801, "the Kansas Mandamus Statute." These state statutes are not authority for thisfederal court to issue either an injunction or a mandamus.
Plaintiff claims that defendants are circumventing their "own rules and regulations," which it is their duty to follow. He asserts that he is entitled to a temporary restraining order directing defendants, until this case is heard, to refrain from: (1) taking his personal property, (2) continually retaliating against him, (3) retaliating against him by placing him in the Sex Offender Treatment Program (SOTP), (3) retaliating against him for filing this lawsuit, and (4) further retaliation or punishments resulting from Disciplinary Case No. 10-01-308. He also asks the court to order his removal from the Enhanced Management Unit (EMU), his immediate transfer to another facility, 3 and his separation from all defendants.
A party seeking a preliminary injunction or temporary restraining order "must demonstrate four factors: (1) a likelihood of success on the merits; (2) a likelihood that the movant will suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in the movant's favor; and (4) that the injunction is in the public interest." RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009)(citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)); Schrier v. University of Co., 427 F.3d 1253, 1258 (10th Cir. 2005). The Tenth Circuit has made it plain that "because a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal." Beltronics USA, Inc. v. Midwest Inventory Distribution, LLC, 562 F.3d 1067, 1070 (10th Cir. 2009)(quotingGreater Yellowstone Coalition v. Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003)).
Guiden's arguments in support of his request for a preliminary injunction are "merely conclusory reiterations of the requirements for an injunction couched in the form of declarative statements." Blango v. Thornburgh, 942 F.2d 1487, 1493 (10th Cir. 1991). Although he lists the legal factors that must be established, the few facts he alleges do not establish any factor. For example, to show irreparable injury he generally refers to the loss of his constitutional rights as well as "the risk of the loss of personal property and other attacks on his life." However, no facts are alleged to establish that these risks actually exist.4 In his complaint as well as this motion, plaintiff requests an injunction to prevent defendants from harassing or retaliating against him for filing this action. However, he alleges no facts establishing that without the injunction defendants are likely to do either. Plaintiff's requests for preliminary relief appear to be purely speculative. He certainly has not made a compelling showing that he will suffer irreparable harm. Nor has he shown that the public interest would not be better served by his sex offender status remaining in effect during this litigation. Moreover, the complaint and other materials filed indicate that plaintiff's claims aresubject to being dismissed for several reasons including failure to state a claim. Therefore, plaintiff has not shown a substantial likelihood of success on the merits. In sum, plaintiff has utterly failed to satisfy his burden of establishing those factors which are prerequisites to this court's grant of preliminary injunctive relief.
Plaintiff's request for mandamus relief has no legal or factual basis.
SCREENING
Because plaintiff is a prisoner, the court is required by statute to screen his complaint and to dismiss the complaint or any portion thereof that is frivolous, fails to state a claim upon which relief may be granted, or seeks relief from a defendant immune from such relief. 28 U.S.C. § 1915A(a) and (b). Having screened all materials filed, the court finds that the complaint should be dismissed for failure to state a claim and the other reasons discussed herein. Plaintiff will be given time to show cause why the complaint should not be dismissed for these reasons. If he fails to show cause within the time allotted, this action may be dismissed without further notice.
Plaintiff's attention is called to D.Kan. Rule 9.1(a), which requires that a prisoner litigant submit his complaint on a court-approved form. Plaintiff alleges no reason for his failure to comply with Rule 9.1(a), and shall be required to submit his complaint upon forms.
FAILURE TO ALLEGE PERSONAL PARTICIPATION
It has long been settled that a prison official's liability may not be predicated solely upon a theory of respondeat superior. Rizzo v. Goode, 423 U.S. 362, 371 (1976); ...
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