Terry v. Kan. Dep't of Corr.

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TYRONE TERRY, Plaintiff, v. KANSAS DEPARTMENT OF CORRECTIONS, Central Inmate Banking, et. al, Defendants.

No. 24-3195-JWL

United States District Court, D. Kansas

November 6, 2024

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,^[1]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.”).

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...