Owens v. Sebelius
| Decision Date | 15 February 2005 |
| Docket Number | No. CIV.A. 04-3178KHV.,CIV.A. 04-3178KHV. |
| Citation | 357 F.Supp.2d 1281 |
| Parties | William D. OWENS III, Plaintiff, v. Kathleen SEBELIUS, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
William D. Owens, III, Wichita, KS, pro se.
Brian D. Sheern, Kansas Attorney General, Topeka, KS, for Defendants.
Plaintiff, an inmate at the Winfield Correctional Facility in Winfield, Kansas, brings suit against Kathleen Sebelius (Governor of the State of Kansas), Roger Werholtz (Secretary of the Kansas Department of Corrections) and Phill Kline (Attorney General of the State of Kansas).1 Plaintiff alleges that the Kansas state regulation which imposes a $25 monthly supervision fee on parolees is an unlawful bill of attainder, violates his rights under the ex post facto clause and the Fifth, Eighth and Fourteenth Amendments of the United States and Kansas Constitutions. This matter is before the Court on Defendants' Motion To Dismiss (Doc. # 14) filed December 29, 2004.
Pursuant to D. Kan. Rule 6.1(d)(2) and Fed.R.Civ.P. 6(a), plaintiff had until January 30, 2005 to file a response to defendants' motion to dismiss. See defendants' Certificate Of Service (Doc. # 16) (on January 7, 2005, defendants re-served motion and memorandum on plaintiff at correct address). To date, plaintiff has not responded to defendants' motion. Pursuant to D. Kan. Rule 7.4, "[i]f a respondent fails to file a response within the time required by Rule 6.1(d), the motion will be considered and decided as an uncontested motion, and ordinarily will be granted without further notice." For this reason and those set forth below, the Court sustains defendants' motion.
Plaintiff's complaint is virtually identical to the complaints in Miller v. Sebelius, No. 04-3053-KHV and Taylor v. Sebelius, No. 04-3063-KHV. The Court recently sustained defendants' motions for summary judgment in those cases. See Memorandum And Order (Doc. # 45) filed December 22, 2004 in Miller v. Sebelius, No. 04-3053-KHV; Memorandum And Order (Doc. # 49) filed December 29, 2004 in Taylor v. Sebelius, No. 04-3063-KHV. For similar reasons, the Court sustains defendants' motion to dismiss in this case.
Standards For Motions To Dismiss Under Rule 12(b)(6)
A Rule 12(b)(6) motion should not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). The Court accepts all well-pleaded factual allegations in the complaint as true and draws all reasonable inferences from those facts in favor of plaintiff. See Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir.1987). In reviewing the sufficiency of plaintiff's complaint, the issue is not whether plaintiff will prevail, but whether plaintiff is entitled to offer evidence to support his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Although plaintiff need not precisely state each element of his claims, he must plead minimal factual allegations on those material elements that must be proved. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).
Plaintiff's complaint alleges the following facts:
In December of 1992, after plaintiff was convicted of possession of cocaine in two separate cases and forgery in a third case, he went into the custody of the Kansas Department of Corrections ("KDOC").2 See Complaint (Doc. # 1) filed June 1, 2004; see also State v. Owens, 19 Kan.App.2d 773, 773-74, 875 P.2d 1007, 1007-08 (1994). On March 5, 1999, the Kansas Parole Board ("KPB") released plaintiff on parole. Pursuant to K.A.R. § 44-5-115(b) — which imposes parole supervision fees in the amount of $25.00 per month — KDOC charged plaintiff monthly supervision fees of $25.00 through July of 2000, when plaintiff returned to KDOC custody after his parole revocation.
On March 27, 2001, the KPB again released plaintiff on parole and charged him monthly supervision fees of $25.00. On May 1, 2001, plaintiff returned to KDOC custody after another parole revocation.
On August 2, 2001, the KPB again released plaintiff on parole and charged him monthly supervision fees of $25.00. On October 9, 2001, plaintiff returned to KDOC custody after another parole revocation.
On March 4, 2002, the KPB again released plaintiff on parole and charged him monthly supervision fees of $25.00. On September 18, 2002, plaintiff returned to KDOC custody after yet another parole revocation.
On July 21, 2003, the KPB again released plaintiff on parole and charged him monthly supervision fees of $25.00. On November 24, 2003, plaintiff returned to KDOC custody after a fifth parole revocation.
Plaintiff apparently did not pay all of his monthly supervision fees. Internal Management Policy and Procedure ("IMPP") § 04-106 provides that outstanding fees from a prior incarceration or post-incarceration supervision shall be assessed upon the offender's re-entry into KDOC custody. Pursuant to that policy, KDOC deducted $325.00 from plaintiff's inmate trust account to satisfy his outstanding supervision fees from January of 2000 through November of 2003.3
Plaintiff is currently in KDOC custody.
Plaintiff alleges that (1) K.A.R. § 44-5-115(b) violates the constitutional prohibition on ex post facto laws because at the time of his offense, Kansas did not impose a supervision fee; (2) as applied to him, K.S.A. § 75-52,139 and K.A.R. § 44-5-115(b) are unlawful bills of attainder; (3) by deducting supervision fees from his prison inmate account, defendants subjected him to cruel and unusual punishment, unlawfully took his property in violation of the takings clause of the Fifth Amendment, and violated his rights to procedural due process and equal protection under the Fifth and Fourteenth Amendments. See Complaint (Doc. # 1) at 4-16.
Before addressing plaintiff's claims, the Court briefly outlines the relevant statutory and regulatory provisions. In 1994, the Kansas legislature passed a bill which authorized the secretary of KDOC to impose certain fees on inmates and former inmates on supervision. Specifically, the law provides as follows:
The secretary of corrections is hereby authorized to adopt rules and regulations under which offenders in the secretary's custody may be assessed fees for various services provided to offenders and for deductions for payment to the crime victims compensation fund.
K.S.A. § 75-52,139. Based on the statute, the secretary of KDOC passed a regulation which provides in relevant part as follows:
(1) Each offender under the department's parole supervision... shall be assessed a supervision service fee of ... $25.00 dollars per month. * * *
(2) A portion of the supervision service fees collected shall be paid to the designated collection agent or agents according to the current service contract, if applicable. Twenty-five percent of the remaining amount collected shall be paid on at least a quarterly basis to the crime victims' compensation fund. The remaining balance shall be paid to the department's general fees fund for the department's purchase or lease of enhanced parole supervision services or equipment including electronic monitoring, drug screening, and surveillance services.
(3) Indigent offenders shall be exempt from this subsection of the regulation, as set forth by criteria established by the secretary in an internal management policy and procedure.
IMPP § 14-107 sets forth procedures to collect supervision fees. See IMPP § 14-407, attached as Exhibit J to Martinez Report (Doc. # 27 in Miller v. Sebelius, No. 04-3053). It provides that indigent offenders are not required to pay a supervision fee. See id. at 1. IMPP § 12-127 provides that KDOC shall issue basic personal hygiene items (including a soft toothbrush, toothpaste, disposable razor, comb or pick and soap) to indigent inmates (any inmate with a cumulative spendable amount of less than $12.00). See IMPP § 12-127, attached as Exhibit M to Martinez Report (Doc. # 27 in Miller v. Sebelius, No. 04-3053).
IMPP § 04-106 provides that outstanding fees or charges from a previous incarceration or post-incarceration supervision shall be assessed upon the offender's re-entry into KDOC custody. See IMPP § 04-106.
Plaintiff alleges that by deducting supervision fees from his prison inmate account, defendants subjected him to cruel and unusual punishment. See Complaint (Doc. # 1) at 11-15. Specifically, plaintiff alleges that because of the deductions, he was subjected to "undue hardships" and "denied the opportunity to maintain his sanitary hygienic needs." Id. at 11.
IMPP § 12-127 provides that indigent inmates shall receive basic personal hygiene items including a soft toothbrush, toothpaste, disposable razor, comb or pick and soap. Plaintiff has not alleged that defendants ever denied him free basic hygiene supplies. The Tenth Circuit recently rejected an Eighth Amendment claim based on similar allegations. See Sellers v. Worholtz, 86 Fed.Appx. 398, 2004 WL 119882 (10th Cir.2004). In Sellers, plaintiff alleged that the automatic deduction of fees from his inmate account to satisfy his obligations under K.A.R. § 44-5-115 constituted cruel and unusual punishment. The Tenth Circuit held that plaintiff could apply every month for an indigent package which contained necessary hygiene products, and that he therefore failed to state a claim for violation of the Eighth Amendment. Id. at 400. This Court likewise finds that because plaintiff has not alleged that defendants denied his request for basic hygiene supplies, plaintiff has failed to state a claim for cruel and unusual punishment.
Even if plaintiff alleged that defendants denied him basic hygiene supplies, he has not alleged that defendan...
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...of R.I., 101 F.3d 780, 783-84 (1st Cir. 1996) [$15.00 monthly supervision fee was civil, not criminal, in nature]; Owens v. Sebelius, 357 F.Supp.2d 1281 (D.Kan. 2005)[deduction from plaintiff's prison trust account of fees incurred for parole supervision did not violate ex post facto clause......
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