Mondonedo v. Roberts
| Decision Date | 14 March 2013 |
| Docket Number | Case No. 12-3045-SAC |
| Parties | RALF M. MONDONEDO, Plaintiff, v. RAY ROBERTS, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
This 42 USC § 1983 case comes before the Court on Plaintiff's amended complaint, filed in response to the Court's order to cure deficiencies in the original complaint. Because the Plaintiff is a prisoner, the court is required to screen this pleading and to dismiss it or any portion of it that is frivolous, fails to state a claim on which relief may be granted, or seeks relief from a defendant immune from such relief. 28 U.S.C. § 1915A(a), (b); 28 U.S.C. § 1915(e)(2)(B).
Plaintiff is serving sentences for convictions of offenses including Rape, Attempted Aggravated Incest, numerous counts of Aggravated Indecent Liberties with a child, and Criminal Sodomy with a child. He admits that he is classified as a sex offender.
Plaintiff's Allegations
The allegations in the amended complaint that are not conclusory statements or legal conclusions follow. In April, 2011, defendant Hermreck signed an order prohibiting Plaintiff from sending letters, and from further communicating with his two minor children, (I) age 8, and (G) age 3. Defendant Noe, the mother and sole custodian of plaintiff's two children, had called the Kansas Department of Corrections (KDOC) and lied by saying that plaintiff had been communicating with her and her teenaged daughter AC (his stepdaughter and the victim of his crimes) and with his two minor children. Noe requested that KDOC prohibit plaintiff from communicating with them. Plaintiff states that he had not communicated with the mother or her daughter AC for about four years; that he had communicated with I and G only by sending them birthday and holiday cards; and that no court order prohibited his contact with his minor children.
No evidence was presented by Noe, no hearing was held as to the veracity of her statements, and no opportunity was provided plaintiff to protest Noe's statements before the no-communication order was imposed. Plaintiff also alleges he was threatened into signing that order.
The Policy
Plaintiff understood that the no-communication order was issued pursuant to IMPP 11-115, which governs sex offender treatment. Its provision on "Contact With Victims" stated, with exceptions not applicable tothis case, "sex offenders shall have no planned or voluntary, direct or indirect contact with victims (including visitation)." Dk. 1, Exh. A, p. 7 (IMPP 11-115 section V,A). The definition of "victim" in the policy was not limited to the person that had been sexually assaulted, but included the victim's family members. It defined "victim" as "[a]ny person who suffers direct or threatened physical, emotional or financial harm as the result of the commission or attempted commission of a crime against a person." Dk. 1, Exh. 1, p. 3. It then defined "primary victim" as "the person(s) directly impacted by the crime (i.e., the person who is sexually assaulted)," and defined "secondary victim/co-victim" as "the person(s) indirectly impacted by the crime (i.e., the family, friends, neighbors, etc. of the person who is sexually assaulted)." Id., p. 3-4.
The same policy contained another section, "Limited Contact With Minors," which repeated the rule that sex offenders have no contact with minor victims, including their own children:
Sex offenders' contact with minors outside the visitation process, including but not limited to mail [and] ... phone ... shall be limited to the inmate's children or immediate family members. If the inmate's sexually deviant behavior triggering this policy included their children or minor immediate family members, no contact ... of minor children or minor immediate family is allowed.
Dk. 1, Exh. A, p. 9 (IMPP 11-115 section B).
Plaintiff's Administrative Actions
IMPP 11-115 also contained an override process permitting sex offenders to submit a written request to modify the method of theirmanagement as a sex offender or to be excluded from management as a sex offender in whole or in part. Requests for overrides had to state the reason for the request, and were approved or disapproved by the Sex Offender Override Panel without a hearing. Id., p. 4-6.
Plaintiff unsuccessfully grieved the no-communication order. Plaintiff provides exhibits of grievances and appeals and alleges that he has exhausted prison administrative remedies. He also alleges that after he appealed the denial of his grievance, the KDOC amended the relevant IMPP to shift future liability for its illegal actions from itself to the persons contacting the KDOC.
Plaintiff sets forth eight counts in his amended complaint, but in essence raises two constitutional claims: (1) that the prison policies and regulations applied to prohibit him from sending mail to his minor children violate his rights under the First and Fourteenth Amendments; and (2) that he was denied due process before this restriction was placed on his outgoing mail.
To withstand dismissal for failure to state a claim under Fed.R.Civ.P. 12(b)(6), "a complaint must contain enough allegations of fact, taken as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw thereasonable inference that the defendant is liable for the misconduct alleged." Id. Although the court must accept as true all factual allegations asserted in the complaint, dismissal is appropriate where "the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct." Id. at 679; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
Inmates face hurdles in addition to Iqbal's pleading burden when, as here, they challenge a prison regulation as unreasonable. As a general matter, "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89 (1987). In reviewing a pleading for dismissal, a court need only assess, as a general matter, whether the challenged prison regulation is "reasonably related to a legitimate penological interest." Gee v. Pacheco, 627 F.3d 1178, 1187 (10th Cir. 2010). Analysis of all four Turner factors is necessary at the summary judgment stage, but need not be part of the analysis at the pleading stage. Al-Owhali v. Holder, 687 F.3d 1236 (10th Cir. 2012); Jones v. Salt Lake Cnty., 503 F.3d 1147, 1153-59 (10th Cir. 2007). The Court thus examines whether Plaintiff has "plead facts from which a plausible inference can be drawn that the action was not reasonably related to a legitimate penological interest." Gee, 627 F.3d at 1188.
Personal participation is an essential allegation in a civil rights complaint. See Fogarty v. Gallegos, 523 F.3d 1282, 1287 (10th Cir. 2008) ()
The court previously found (Dk. 10) that the original complaint failed to allege facts sufficient to show any personal participation by Ray Roberts, the Secretary of Corrections, in the decision to restrict Plaintiff's mail privileges or deny him a hearing. The amended complaint's caption omits Roberts as a defendant and its body makes no allegations against him. Accordingly, Ray Roberts is dismissed as a defendant in this case.
The Court's prior order (Dk. 10) found that defendant Noe, Plaintiff's former wife who is not alleged to be a state officer or employee, would be dismissed as a defendant unless Plaintiff provided additional specific facts establishing her involvement in the alleged conspiracy.
"To state a claim 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); Northington v. Jackson, 973 F.2d 1518, 1523(10th Cir. 1992). Plaintiff does not assert that defendant Noe acted under color of state law, but alleges that Noe conspired with defendant Hermreck who acted under color of state law.
The fundamental elements of a § 1983 conspiracy claim are an agreement between the parties and concerted action in furtherance of that agreement. See Reed v. Dunham, 893 F.2d 285, 287 (10th Cir. 1990). To state a valid claim, "a plaintiff must allege specific facts showing an agreement and concerted action amongst the defendants." Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 533 (10th Cir. 1998). As the Court previously noted, a private individual acts "under color of state law" when engaged in a conspiracy with state officials to deny constitutional rights. Tower v. Glover, 467 U.S. 914, 920 (1984). However, "joint participation, agreement, or a 'meeting of the minds' to violate constitutional rights must be shown." Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970).
When a plaintiff in a § 1983 action attempts to assert the necessary 'state action' by implicating state officials . . . in a conspiracy with private defendants, mere conclusory allegations with no supporting factual averments are insufficient; the pleadings must specifically present facts tending to show agreement and concerted action.
Sooner Products Co. v. McBride, 708 F.2d 510, 512 (10th Cir. 1983).
Plaintiff's amended complaint alleges that defendant Noe acted under color of state law by "using a State entity and conspiring with a State employee to induce the violations of Plaintiff's Constitutional Rights." Dk. p. 2. But the only acts allegedly taken by defendant Noe are: 1) calling the BOPon one occasion; 2) lying by saying that Plaintiff had...
To continue reading
Request your trial