Goston v. Green Et Al - Document No. 3

Goston v. Green et al Doc.
3
Case 5:06-cv-03302-SAC Document 3 Filed 11/16/2006 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS
CHAUNCEY GOSTON,
Plaintiff,
v. CASE NO. 06-3302-SAC
LEROY GREEN, et al.,
Defendants.
O R D E R
This matter is before the court on a complaint filed under 42
U.S.C. § 1983 by a prisoner confined in the Wyandotte County
Detention Center in Kansas City, Kansas. Plaintiff proceeds pro se,
and seeks leave to proceed in forma pauperis under 28 U.S.C. § 1915.
Motion for Leave to Proceed In Forma Pauperis
A prisoner seeking to bring a civil action without prepayment
of the district court filing fee is required to submit an affidavit
that includes a statement of all assets, a statement of the nature
of the complaint, and the affiant's belief that he is entitled to
redress, 28 U.S.C. § 1915(a)(1), and to submit a certified copy of
the inmate's jail account for the six months immediately preceding
the filing of the action from an appropriate official from each
prison in which the inmate is or was incarcerated, 28 U.S.C. §
1915(a)(2). Because plaintiff’s motion for leave to proceed in
forma pauperis includes no certified financial records regarding the
assets in plaintiff’s inmate account, the court directs plaintiff to
supplement the motion with this necessary information. The failure
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to do so in a timely manner may result in the dismissal of this
action based on plaintiff’s failure to either pay the $350.00
district court filing fee, 28 U.S.C. § 1914, or to comply with the
statutory requirements for seeking leave to proceed without
prepayment of the fee, 28 U.S.C. § 1915.
Initial Screening of the Complaint
Additionally, because plaintiff is a prisoner, the court is
required to screen his complaint and to dismiss the complaint or any
portion thereof that is frivolous, fails to state a claim on which
relief may be granted, or seeks monetary relief from a defendant
immune from such relief. 28 U.S.C. § 1915A(a) and (b).
In this action, plaintiff states that he was farmed out from
the Wyandotte County facility to the Davies DeKalb County Regional
Jail on September 29, 2006. There he was held from 9PM to 5AM in a
4 x 5 foot cell with no water or toilet, and then placed in B-tank
where no bunks were available and he had to sleep on the floor.
Plaintiff states he was provided a blanket and sheet, but no
mattress or pillow, and not change of underwear or socks his “entire
stay” at the regional jail. On these allegations, plaintiff seeks
damages for pain and suffering and mental anguish. The sole
defendants named in the complaint are the Wyandotte County Sheriff
and the Mayor of Kansas City, Kansas.
To allege a valid claim under 42 U.S.C. § 1983, the plaintiff
must assert the denial of a right, privilege or immunity secured by
federal law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970);
Hill v. Ibarra, 954 F.2d 1516, 1520 (10th Cir. 1992). The court
finds the instant complaint is subject to being summarily dismissed
2
because plaintiff’s allegations fail to state a cognizable claim of
constitutional deprivation.1
Prison conditions violate the constitutional prohibition
against cruel and unusual punishment if they cause the "unnecessary
and wanton infliction of pain" grossly disproportionate to the
crime underlying the inmate's incarceration or result "in
unquestioned and serious deprivations of basic human needs." Rhodes
v. Chapman, 452 U.S. 337, 346-47 (1981). Plaintiff does not
indicate the duration of his stay in the regional jail. On the face
of the complaint, however, allegations of having to sleep on the
floor one night without a mattress or pillow, and of not having
replacement underwear or socks for an apparent limited number of
days, fall far short of stating a cognizable claim of constitutional
deprivation.
Additionally, plaintiff’s allegations state no claim for relief
against the defendants absent supplementation of the complaint to
demonstrate that either defendant personally participated in any
alleged violation of plaintiff’s constitutional rights. See Foote

v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997) ("Individual
1
Prisoners are required to fully exhaust available
administrative remedies prior to filing an action in federal court
concerning the conditions of their confinement. 42 U.S.C. §
1997e(a). Here, plaintiff states he submitted an administrative
grievance on September 29, 2006, that was never answered, and cites
his subsequent return to the Wyandotte County facility. Under the
circumstances, summary dismissal of the complaint as stating no
claim for relief is still authorized. See 42 U.S.C. §
1997e(c)(2)(“In the event that a claim is, on its face, frivolous,
malicious, fails to state a claim upon which relief can be granted,
or seeks monetary relief from a defendant who is immune form such
relief, the court may dismiss the underlying claim without first
requiring the exhaustion of administrative remedies.”).
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liability under 42 U.S.C. 1983 must be based on personal involvement
in the alleged constitutional violation."); Jenkins v. Wood, 81 F.3d
988, 994- 95 (10th Cir. 1996) ("[P]laintiff must show the defendant
personally participated in the alleged violation, and conclusory
allegations are not sufficient to state a constitutional
violation.") (internal citation omitted).
Finally, plaintiff’s claim for damages for mental anguish is
barred absent a showing by plaintiff of a related physical injury.
See 42 U.S.C. § 1997e(e)(“No 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”).
Plaintiff is thus directed to show cause why the complaint
should not be summarily dismissed as stating no claim for relief,
pursuant to 28 U.S.C. 1915A(b)(1) and 42 U.S.C. § 1997e(c)(2).
IT IS THEREFORE ORDERED that plaintiff is granted thirty (30)
days to supplement the record to provide the certified financial
records required under 28 U.S.C. § 1915(a)(2).
IT IS FURTHER ORDERED that plaintiff is granted thirty (30)
days to show cause why the complaint should not be dismissed as
stating no claim for relief.
IT IS SO ORDERED.
DATED: This 16th day of November 2005 at Topeka, Kansas.
s/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge

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Goston v. Green et al Doc.

IN THE UNITED STATES DISTRICT COURT

v. CASE NO. 06-3302-SAC

LEROY GREEN, et al.,

This matter is before the court on a complaint filed under 42

U.S.C. § 1983 by a prisoner confined in the Wyandotte County

Detention Center in Kansas City, Kansas. Plaintiff proceeds pro se,

and seeks leave to proceed in forma pauperis under 28 U.S.C. § 1915.

Motion for Leave to Proceed In Forma Pauperis

A prisoner seeking to bring a civil action without prepayment

of the district court filing fee is required to submit an affidavit

that includes a statement of all assets, a statement of the nature

of the complaint, and the affiant's belief that he is entitled to

redress, 28 U.S.C. § 1915(a)(1), and to submit a certified copy of

the filing of the action from an appropriate official from each

prison in which the inmate is or was incarcerated, 28 U.S.C. §

1915(a)(2). Because plaintiff’s motion for leave to proceed in

forma pauperis includes no certified financial records regarding the

assets in plaintiff’s inmate account, the court directs plaintiff to

supplement the motion with this necessary information. The failure

to do so in a timely manner may result in the dismissal of this

action based on plaintiff’s failure to either pay the $350.00

district court filing fee, 28 U.S.C. § 1914, or to comply with the

statutory requirements for seeking leave to proceed without

prepayment of the fee, 28 U.S.C. § 1915.

Initial Screening of the Complaint

Additionally, because plaintiff is a prisoner, the court is

required to screen his complaint and to dismiss the complaint or any

portion thereof that is frivolous, fails to state a claim on which

relief may be granted, or seeks monetary relief from a defendant

immune from such relief. 28 U.S.C. § 1915A(a) and (b).

In this action, plaintiff states that he was farmed out from

the Wyandotte County facility to the Davies DeKalb County Regional

4 x 5 foot cell with no water or toilet, and then placed in B-tank

where no bunks were available and he had to sleep on the floor.

Plaintiff states he was provided a blanket and sheet, but no

mattress or pillow, and not change of underwear or socks his “entire

stay” at the regional jail. On these allegations, plaintiff seeks

defendants named in the complaint are the Wyandotte County Sheriff

and the Mayor of Kansas City, Kansas.

To allege a valid claim under 42 U.S.C. § 1983, the plaintiff

must assert the denial of a right, privilege or immunity secured by

finds the instant complaint is subject to being summarily dismissed

because plaintiff’s allegations fail to state a cognizable claim of

Prison conditions violate the constitutional prohibition

against cruel and unusual punishment if they cause the "unnecessary

and wanton infliction of pain" grossly disproportionate to the

crime underlying the inmate's incarceration or result "in

unquestioned and serious deprivations of basic human needs." Rhodes

v. Chapman, 452 U.S. 337, 346-47 (1981). Plaintiff does not

of the complaint, however, allegations of having to sleep on the

floor one night without a mattress or pillow, and of not having

replacement underwear or socks for an apparent limited number of

days, fall far short of stating a cognizable claim of constitutional

Additionally, plaintiff’s allegations state no claim for relief

against the defendants absent supplementation of the complaint to

demonstrate that either defendant personally participated in any

alleged violation of plaintiff’s constitutional rights. See Foote

liability under 42 U.S.C. 1983 must be based on personal involvement