Williams v. United States of America et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARSHALL DEWAYNE WILLIAMS,
Plaintiff,
v. CASE NO. 26-3036-JWL
UNITED STATES OF AMERICA, et al.,
Defendants.
MEMORANDUM AND ORDER
TO SHOW CAUSE
Plaintiff Marshall DeWayne Williams 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, a federal prisoner housed at FCI-Leavenworth in Leavenworth, Kansas (“FCIL”),
brings this pro se action. Plaintiff’s claims arose during his incarceration at FCI-McKean in Lewis
Run, Pennsylvania (“FCIM”).
Plaintiff’s Complaint involves a dispute over his “legal materials” and an allegation of
stalking. He alleges that his legal materials (briefs, transcripts, notes, photocopies, case law,
research materials) for “dozens of underlying cases formerly and currently pending in United
States district and appeals courts” have been confiscated. (Doc. 1, at 4.) He states that K. Allen,
Case Manager Coordinator at FCIM, took six boxes of his materials without justification and
without following the policy of the Board of Prisons (“BOP”). Allen told Plaintiff that she would
“throw it all in the trash” on April 11, 2026. Id. at 5.
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Plaintiff was transferred to FCIM in 2025, but his legal materials did not arrive for at least
four or five months. During the delay, Plaintiff spoke with Warden Newman about his property
and was seen doing so by Associate Warden Wilson. According to Plaintiff, Wilson was angry
that Plaintiff had gone over her head. Plaintiff was issued a warning for loitering in unauthorized
areas. Plaintiff signed the warning but wrote “I disagree” on the form. Id. at 7. He was then
charged with refusing an order and lying or falsifying a statement and taken to the Segregation
Housing Unit (“SHU”). Id. Days later, the disciplinary committee ordered him to remain in the
SHU for 30 days on mattress restriction. Id. Plaintiff was told by Officer Weseman that Wilson
was accusing Plaintiff of stalking her. When Plaintiff was transferred to FCIL, he was told to be
careful because he had been transferred for stalking Wilson.
Plaintiff states that as a result of the allegation, he is now precluded from prison jobs around
women and his prison reputation, earned over 42 years, has been jeopardized and questioned. Id.
at 8. He has filed this lawsuit to recover for damages and to “correct the injuries” he has suffered.
Id. Plaintiff lists the following claims: property loss, personal injuries, assault, battery, false
imprisonment, false arrest, abuse of process, malicious prosecution, libel, slander,
misrepresentation, deceit, cruel and unusual punishment, and machination. Id. He asserts
violation of his Fifth Amendment due process rights and Eight Amendment right to be free from
cruel and unusual punishment.
Plaintiff also includes allegations about the conditions in the SHU at FCIM. First, he
alleges that he suffered injury to his neck, shoulders, hips, and knees from the mattress restriction.
He further claims that inmates were given minimal amounts of food, deprived of medical
treatment, sprayed with pepper spray if they complained, exposed to mold, not allowed to
exchange clothing for over six weeks, and only allowed to shower every week or two. Id. at 10.
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Plaintiff names as defendants the United States of America; D. Alatary, Warden of FCIL;
A. Newman, Warden of FCIM; K. Allen, Case Manager Coordinator, FCIM; and H. Wilson,
Associate Warden, FCIM. Plaintiff seeks the return of his legal materials, compensatory damages
of $10 million, and punitive damages of $10 million. Id. at 12-14
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,
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1110 (10th Cir. 1991). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] 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.
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Ct. at 1974).
III. DISCUSSION
Plaintiff asserts many causes of action. They fall into two categories: tort claims and
constitutional claims.
A. Tort Claims
The only avenue for a federal prisoner to bring most state law tort claims based on the
actions of a BOP employee acting within the scope of his employment is through the Federal Tort
Claims Act (“FTCA”). See 28 U.S.C. § 2679. The FTCA, 28 U.S.C. §§ 1346(b)(1), 2671–2680,
“allows the United States to be sued for claims arising out of negligent or wrongful acts or
omissions of its employees, when such employees are acting within the scope of their duties.”
Ingram v. Faruque, 728 F.3d 1239, 1245 (10th Cir. 2013) (citing § 1346(b)(1)). The FTCA
“provides the exclusive avenue to assert a claim sounding in tort against the United States.”
Franklin Sav. Corp., In re, 385 F.3d 1279, 1286 (10th Cir. 2004), cert. denied, 546 U.S. 814 (2005)
(citing 28 U.S.C. § 2679(a), which provides that “the FTCA remedy is ‘exclusive’ for all ‘claims
which are cognizable under section 1346(b)’”).
Plaintiff mentions several tort claims. His first problem is that the FTCA has procedural
and jurisdictional requirements that he has not met. See Staggs v. U.S. ex rel. Dep’t of Health and
Human Servs., 425 F.3d 881, 885 (10th Cir. 2005) (stating that the “FTCA’s presentation
requirements are jurisdictional and cannot be waived”) (citation omitted). The Tenth Circuit has
summarized the FTCA requirements as follows:
Under the FTCA, filing an administrative claim with the appropriate
federal agency is a prerequisite to bringing a civil action against the
United States for damages for the negligence or wrongful act of any
United States employee. 28 U.S.C. § 2675(a); Three-M Enterprises,
Inc. v. United States, 548 F.2d 293, 294 (10th Cir. 1977) . . . A claim
is deemed presented when a federal agency receives from a claimant
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“an executed Standard Form 95 or other written notification of an
incident, accompanied by a claim for money damages in sum certain
for . . . personal injury, or death alleged to have occurred by reason
of the incident.” 28 C.F.R. § 14.2(a). “[B]ringing an administrative
claim is a jurisdictional prerequisite to suit, imposed by Congress,
which the courts have no power to waive.” Nero v. Cherokee Nation
of Oklahoma, 892 F.2d 1457, 1463 (10th Cir. 1989); see also
Bradley v. United States, 951 F.2d 268, 270 (10th Cir. 1991).
Industrial Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 967 (10th Cir. 1994).
Section 2675(a) provides that “[a]n action shall not be instituted” upon an FTCA claim “unless the
claimant shall have first presented the claim to the appropriate Federal agency and his claim shall
have been finally denied by the agency in writing . . . .” Id. at n.1. The amount of damages claimed
in a lawsuit under the FTCA is limited to “the amount of the claim presented to the federal agency.”
28 U.S.C. § 2675(b); see McNeil v. United States, 508 U.S. 106, 108 n.2 (1993) (citing 28 U.S.C.
§ 2675(a)).
Therefore, exhaustion of administrative remedies is a prerequisite to suit under the FTCA,
and courts lack jurisdiction over FTCA claims not presented to the appropriate federal agency.
See 28 U.S.C. § 2675(a); Greenlee v. U.S. Postal Serv., 247 F. App’x 953, 954–55 (10th Cir. 2007).
“Because the FTCA constitutes a waiver of the government’s sovereign immunity, the notice
requirements established by the FTCA must be strictly construed.” Bradley v. United States by
Veterans Admin., 951 F.2d 268, 270 (10th Cir. 1991) (citation omitted). “The requirements are
jurisdictional and cannot be waived.” Id. (citation omitted); Duplan v. Harper, 188 F.3d 1195,
1199 (10th Cir. 1999) (“As a jurisdictional prerequisite, the FTCA bars claimants from bringing
suit in federal court until they have exhausted their administrative remedies.”) (citing 28 U.S.C.
§ 2675(a); McNeil, 508 U.S. at 113; Pipkin v. U.S. Postal Service, 951 F.2d 272, 273 (10th Cir.
1991)).
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Plaintiff has not alleged facts establishing that he exhausted the administrative tort claim
remedy in a proper and timely manner prior to filing this action. This deficiency bars the Court
from hearing any of Plaintiff’s FTCA claims.
Moreover, several of the claims Plaintiff mentions cannot be brought under the FTCA.
Libel, slander, misrepresentation, and deceit are not actionable under the FTCA. 28 U.S.C. §
2680(h). Plaintiff’s claim based on the confiscation or loss of his personal property is also
excepted from the FTCA. See 28 U.S.C. § 2680(c) (exception to FTCA’s waiver of sovereign
immunity includes claims arising from the detention of property by law enforcement officers); Ali
v. Fed. Bureau of Prisons, 552 U.S. 214, 228 (2008) (holding that BOP officers who allegedly lost
inmate’s personal property during his transfer to another prison were “law enforcement officers”
as the term is used in § 2680(c)); Williams v. Mestas, 355 F. App’x 222 (10th Cir. 2009) (holding
that FTCA claim against prison officials arising from mishandling of personal property during
transfer to another institution was improper because claim was barred by sovereign immunity);
Robinson-Bey v. Feketee, 219 F. App’x 738 (10th Cir. 2007) (holding that FTCA did not waive
sovereign immunity as to inmate’s claim for lost or stolen property allegedly in possession of
prison officials); Greer v. U.S., 72 F. App’x 793, 797 (10th Cir. 2003) (unpublished) (finding
United States did not waive sovereign immunity where legal documents were “goods” and prison
employees are “law enforcement officers” under 28 U.S.C. § 2680(c)).
Further, to the extent that Plaintiff asserts that the loss of his legal property was an
unauthorized intentional act under 28 U.S.C. § 2680(h), a claim premised on an alleged intentional
destruction of property is also outside the scope of the FTCA. See Williams, 355 F. App’x at 225
(“Insofar as Mr. Williams might argue that the property damage was intentional, moreover, the
statute would not waive sovereign immunity for that type of intentional action.”) (citing 28 U.S.C.
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§ 2680(h); Dalton v. United States, 2022 WL 21808236, at *2–4 (D. Colo. 2022), adopted by 2022
WL 21808239 (D. Colo. 2022) (citing see 28 U.S.C. § 2680(h) (the waiver of immunity for
intentional torts is limited to assault, battery, false imprisonment, false arrest, abuse of process, or
malicious prosecution); Lane v. Pena, 518 U.S. 187, 192 (1996) (“A waiver of the Federal
Government’s sovereign immunity must be unequivocally expressed in statutory text . . . and will
not be implied[.]”)).
“Congress . . . did provide an administrative remedy for lost property claimants . . . Federal
agencies have authority under 31 U.S.C. § 3723(a)(1) to settle certain ‘claim[s] for not more than
$1,000 for damage to, or loss of, privately owned property that . . . is caused by the negligence of
an officer or employee of the United States Government acting within the scope of employment.’”
Ali, 552 U.S. at n.7. The claim must be presented to the head of the agency within one year after
it accrues. 31 U.S.C. § 3723(b).
Therefore, whether Plaintiff asserts that the loss of his legal files was intentional or
negligent, the Court lacks subject matter jurisdiction over his FTCA claim, and Plaintiff’s
Complaint is subject to dismissal.
Other claims Plaintiff mentions, such as assault, battery, false imprisonment, false arrest,
malicious prosecution, abuse of process, and machination, are merely listed with no supporting
factual allegations or explanation. As explained above, “conclusory allegations without supporting
factual averments are insufficient to state a claim upon which relief can be based.” Hall, 935 F.2d
at 1110. 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.” Twombly, 550 U.S.
at 555, 570.
For these reasons, Plaintiff fails to state an actionable claim under the FTCA.
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B. Civil Rights/Constitutional Claims
Plaintiff also asserts that the defendants violated some of his constitutional rights.
Plaintiff’s civil rights claims are subject to dismissal because he filed this lawsuit in the wrong
court. General venue principles are found in 28 U.S.C. § 1391(b), which provides that a civil
action may be brought in a judicial district where any defendant resides, a district where a
substantial part of the events giving rise to the claim occurred, or, if no district meets those criteria,
a district in which a defendant is subject to the court’s personal jurisdiction in the action. The
Court has reviewed the Complaint and concludes it is clear from the face that the District of Kansas
is not a proper venue for Plaintiff’s civil rights claims. While Plaintiff names the warden at FCIL
as a defendant, all of the alleged events giving rise to Plaintiff’s claims occurred while Plaintiff
was at FCI-McLean in Pennsylvania.
When a case is brought in the wrong venue, the district court in which the case is filed
“shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in
which it could have been brought.” 28 U.S.C. § 1406(a). To determine whether transfer is in the
interest of justice, the Court considers, for example, whether the action would be time-barred if
filed anew in the proper venue, whether the claims are likely to have merit, and whether the action
was filed in good faith or “filed after ‘plaintiff either realized or should have realized that the forum
in which he or she filed was improper.’” See Trujillo v. Williams, 465 F.3d 1210, 1223 n.16 (10th
Cir. 2006) (citations omitted). The Court finds that the interest of justice does not require the
transfer of Plaintiff’s civil rights claims; the statute of limitations has not run, and the claims are
unlikely to have merit, as explained below.
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Even if Plaintiff’s constitutional claims were not subject to dismissal for improper venue,
they are subject to dismissal for failure to state a claim. The U.S. Supreme Court has permitted,
in extremely limited circumstances, a damages claim against a federal officer in his individual
capacity for a deprivation of constitutional civil rights. See Bivens v. Six Unknown Named Agents
of the Federal Bureau of Narcotics, 403 U.S. 388 (1971); Ashcroft v. Iqbal, 556 U.S. 662, 675
(2009) (“In Bivens - proceeding on the theory that a right suggests a remedy – [the United States
Supreme] Court ‘recognized for the first time an implied private action for damages against federal
officers alleged to have violated a citizen's constitutional rights.’”) (quoting Corr. Servs. Corp. v.
Malesko, 534 U.S. 61, 66, 68 (2001)). To state a Bivens claim, a plaintiff must allege the violation
of a constitutional right by a federal officer acting under color of federal authority. Bivens, 403
U.S. at 389.
In Bivens, the Supreme Court “held that, even absent statutory authorization, it would
enforce a damages remedy to compensate persons injured by federal officers who violated the
prohibition against unreasonable search and seizures” under the Fourth Amendment. Ziglar v.
Abbasi, 582 U.S. 120, 131 (2017). Since Bivens, the Supreme Court has recognized a Bivens
remedy in only two other cases: Davis v. Passman, 442 U.S. 228 (1979) and Carlson v. Green, 446
U.S. 14 (1980).
The Supreme Court has made it clear that expanding the Bivens remedy beyond the already
recognized contexts is a “disfavored judicial activity.” Abbasi, 582 U.S. at 135 (quotations
omitted). Therefore, a plaintiff may proceed on a Bivens action only if the court determines the
action survives a two-part inquiry. First, the court must determine whether the claim arises under
a new Bivens context. If not, the claim may be brought under Bivens. However, if the claim
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involves a new context, the court may create a new Bivens remedy only if there are no special
factors counseling hesitation against the creation of such a remedy. Wilkie v. Robbins, 551 U.S.
537, 550 (2007).
As to the first part of the inquiry, the test is whether “the case is different in a meaningful
way from previous Bivens cases decided by [the United States Supreme] Court[.]” Abbasi, 582
U.S. at 139. In other words, courts should determine whether the claims at issue differ
meaningfully from “a claim against FBI agents for handcuffing a man in his own home without a
warrant; a claim against a Congressman for firing his female secretary [based on her gender]; and
a claim against prison officials for failure to treat an inmate's asthma [resulting in his death].” Id.
at 140. Therefore, it is not merely a question of whether a plaintiff’s claim arises under the Fourth,
Fifth, or Eighth Amendment. “A claim may arise in a new [Bivens] context even if it is based on
the same constitutional provision as a claim in a case in which a damages remedy was previously
recognized.” Hernandez v. Mesa, 589 U.S. 93, 103 (2020).
Plaintiff has not shown that a Bivens remedy is available for his claims. The Tenth Circuit
recently noted that the Supreme Court “is on course to treating Bivens as a relic of the 20th century”
and that “[t]his development has been gradual, but relentless.” Logsdon v. U.S. Marshal Serv., 91
F.4th 1352, 1355 (10th Cir. 2024), rehr’g denied (Apr. 5, 2024). The Tenth Circuit in Logsdon
found that:
Without explicitly overruling its three acknowledged precedents, the
[Supreme] Court has shown an increasing willingness to distinguish
them, now stating that the ultimate question to ask when
determining whether the courts should recognize a Bivens cause of
action not created by Congress is ordinarily only “whether there is
any reason to think that Congress might be better equipped to create
a damages remedy.” Egbert v. Boule, 596 U.S. 482, 492, 142 S. Ct.
1793, 213 L.Ed.2d 54 (2022). And the circumstances in which the
answer to the question is “no” appears to comprise a null set. See id.
at 503, 142 S. Ct. 1793. (Gorsuch, J., concurring) (“When might a
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court ever be ‘better equipped’ than the people’s elected
representatives to weigh the ‘costs and benefits’ of creating a cause
of action? It seems to me that to ask the question is to answer it. To
create a new cause of action is to assign new private rights and
liabilities—a power that is in every meaningful sense an act of
legislation.”); see also Silva v. United States, 45 F.4th 1134, 1140
(10th Cir. 2022) (“[W]e are left in no doubt that expanding Bivens
is not just ‘a disfavored judicial activity,’ it is an action that is
impermissible in virtually all circumstances.” (quoting Egbert, 596
U.S. at 491, 142 S. Ct. 1793) (citation omitted)). The Court has said
in effect that almost any difference between the case at hand and the
three Court precedents can justify rejecting a cause of action. See
Egbert, 596 U.S. at 503, 142 S. Ct. 1793 (Gorsuch, J., concurring)
(“Candidly, I struggle to see how this set of facts differs
meaningfully from those in Bivens itself.”).
And, perhaps even more striking, the Court has justified a departure
from those precedents even when the facts are virtually the same if
the government can provide a reason for not recognizing a cause of
action that was not considered in the applicable precedent. Thus, in
Egbert itself the Court considered an excessive-force claim, similar
to the one in Bivens, against a federal officer. See Egbert, 596 U.S.
at 495, 142 S. Ct. 1793 (“Bivens and this case do involve similar
allegations of excessive force and thus arguably present almost
parallel circumstances or a similar mechanism of injury.” (internal
quotation marks omitted)). But it held that the court of appeals erred
by recognizing a cause of action under Bivens, distinguishing Bivens
based on facts that have no bearing on the elements of an excessive-
force claim: the incident arose in the “border-security context,” and
Congress had created remedies for misconduct by government
agents. See id. at 494, 142 S. Ct. 1793. Given such hurdles placed in
the way of a Bivens cause of action, Mr. Logsdon has no claim.
Id. at 1355–56.
The Tenth Circuit in Logsdon found that “[a] second independent ground for not
recognizing a Bivens action . . . is that the availability of alternative remedies for misconduct . . .
suggests that this court should not be the institution to create a remedy.” Id. at 1359. “If there are
alternative remedial structures in place, that alone, like any special factor, is reason enough to limit
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the power of the Judiciary to infer a new Bivens cause of action.” Id. (quoting Egbert, 596 U.S. at
493). The Tenth Circuit quoted Egbert as follows:
“So long as Congress or the Executive has created a remedial
process that it finds sufficient to secure an adequate level of
deterrence, the courts cannot second-guess that calibration by
superimposing a Bivens remedy. That is true even if a court
independently concludes that the Government’s procedures are not
as effective as an individual damages remedy.” Id. at 498, 142 S. Ct.
1793 (internal quotation marks omitted).
Id.
In Silva, the Tenth Circuit held that the Bureau of Prison’s Administrative Remedy
Program (“ARP”) was adequate. Silva v. United States, 45 F.4th 1134, 1141 (10th Cir. 2022)
(finding that the key takeaway from Egbert is “that courts may dispose of Bivens claims for ‘two
independent reasons: Congress is better positioned to create remedies in the [context considered
by the court], and the Government already has provided alternative remedies that protect
plaintiffs”) (citation omitted); see also Noe v. United States Gov’t, 2023 WL 8868491, at *3 (10th
Cir. Dec. 22, 2023) (“We need not decide whether Noe’s case is meaningfully different from
Carlson, because in the wake of Egbert and Silva . . . the availability of the ARP is sufficient to
foreclose a Bivens claim despite any factual similarity between the two.”).
The Tenth Circuit had little difficulty in concluding “that the BOP Administrative Remedy
Program is an adequate ‘means through which allegedly unconstitutional actions . . . can be brought
to the attention of the BOP and prevented from recurring.’” Silva, 45 F.4th at 1141 (citation
omitted). The Silva court found that “because Bivens ‘is concerned solely with deterring the
unconstitutional acts of individual officers,’. . . the availability of the BOP’s Administrative
Remedy Program offers an independently sufficient ground to foreclose Plaintiff’s Bivens claim.”
Id. (citing Egbert, 596 U.S. at 498 (quoting Malesko, 534 U.S. at 71)).
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Based on the reasoning set forth in the recent Tenth Circuit opinions cited above, the Court
finds that Plaintiff fails to state a claim for relief under Bivens.
In addition to the lack of a Bivens remedy and the improper venue, Plaintiff fails to state a
claim for violation of his constitutional rights. His primary complaint is the confiscation of his
legal files. Plaintiff mentions violation of the Fifth Amendment in connection with his legal files.
However, he cannot prevail on his claim that his Fifth Amendment rights were violated because
the BOP has an administrative remedy to challenge the confiscation of his property, and the FTCA
provides another such post-deprivation remedy. Akervik v. Ray, 24 F. App'x 865, 869 (10th Cir.
2001). He therefore cannot assert a constitutional claim for the intentional deprivation of property.
See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (explaining an intentional deprivation of property
does not constitute a violation of the Due Process Clause “if a meaningful postdeprivation remedy
for the loss is available”).
If Plaintiff is alleging that the confiscation of his legal files violated his right to access the
courts, he also does not state a claim. “A prisoner must demonstrate actual injury from interference
with his access to the courts—that is, that the prisoner was frustrated or impeded in his efforts to
pursue a nonfrivolous legal claim concerning his conviction or his conditions of confinement.”
Gee v. Pacheco, 627 F.3d 1178, 1191 (10th Cir. 2010) (citing Lewis v. Casey, 518 U.S. 343, 351–
55 (1996)). Plaintiff’s allegations fail this test. He does not connect the deprivation of his legal
files to any actual injury.
As for Plaintiff’s complaint that Wilson made false accusations against him, resulting in
unfair disciplinary action, such claim is barred unless he shows the disciplinary conviction has
been invalidated. Heck v. Humphrey, 512 U.S. 477 (1994), held that if a judgment for damages
would necessarily imply the invalidity of a criminal conviction or sentence, the action does not
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arise until the conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by an authorized state tribunal, or called into question by the issuance of a
federal habeas writ. See Heck, 512 U.S. at 486-87. A civil rights action filed by a prisoner “is
barred (absent prior invalidation) – no matter the relief sought (damages or equitable relief), no
matter the target of the prisoner's suit (state conduct leading to conviction or internal prison
proceedings) – if success in that action would necessarily demonstrate the invalidity of
confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). Heck applies to
prison disciplinary convictions. See Edwards v. Balisock, 520 U.S. 641, 648 (1997); see also
Brown v. Cline, 319 F. App'x 704, 705-06 (10th Cir. 2009) (unpublished). Heck and Edwards
apply in Bivens actions. See Reed v. Smith, 182 F.3d 933 (10th Cir. 1999).
A favorable judgment in this action would necessarily imply the invalidity of Plaintiff’s
disciplinary conviction, and Plaintiff fails to allege that his disciplinary conviction has been
reversed, declared invalid, expunged, or called into question. Therefore, his claim based on the
disciplinary action is premature.
Even if not barred by Heck, Plaintiff fails to state a due process claim based on his
disciplinary proceedings. Plaintiff does not allege that the disciplinary actions affected the
duration of his sentence, and the punishment imposed, 30 days in the SHU with privilege
restriction, is not the type of atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life that creates a protected liberty interest. Beauclair v. High, No.
14-3020-SAC, 2015 WL 93636, at *3 (D. Kan. Jan. 7, 2015) (citing Hornsby v. Jones, 392 F.
App’x 653, 655 (10th Cir. 2010), for the proposition that punishments of fines and segregation for
a limited number of days generally fail to implicate a protected liberty interest); see also Marshall
v. Laird, 2013 WL 3226632, at *3 (D. Kan. June 25, 2013) (“[A] denial of privileges does not
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impose an atypical and significant hardship in relation to the ordinary incidents of prison life, and
consequently no liberty interest is at stake where the inmate may be sanctioned with a loss of
privileges only.”); Blum v. Federal Bureau of Prisons, 189 F.3d 477, 1999 WL 638232, at *3 (10th
Cir. Aug. 23, 1999) (concluding that 90-day disciplinary segregation which left inmate without
“store privileges, radio, phone calls, etc.” were “such conditions . . . not different in such degree
and duration as compared with ‘the ordinary incidents of prison life’ to be a protected liberty
interest under the Due Process clause.” (citations omitted))).
Furthermore, Plaintiff does not have a right to dictate where he is housed. The Supreme
Court has held that “the Constitution itself does not give rise to a liberty interest in avoiding
transfer to more adverse conditions of confinement.” Wilkinson v. Austin, 545 U.S. 209, 221–22
(2005) (citing Meachum v. Fano, 427 U.S. 215, 225 (1976) (no liberty interest arising from Due
Process Clause itself in transfer from low-to maximum-security prison because “[c]onfinement in
any of the State’s institutions is within the normal limits or range of custody which the conviction
has authorized the State to impose”). “Changing an inmate’s prison classification . . . ordinarily
does not deprive him of liberty, because he is not entitled to a particular degree of liberty in prison.”
Sawyer v. Jefferies, 315 F. App’x 31, 34 (10th Cir. 2008) (citing Templeman v. Gunter, 16 F.3d
367, 369 (10th Cir. 1994) (citing Meachum, 427 U.S. at 225)). Plaintiff has not alleged that his
assignment imposed any atypical and significant hardship in relation to the ordinary incidents of
prison life. Cf. Wilkinson, 545 U.S. at 223–24 (finding atypical and significant hardship in
assignment to supermax facility where all human contact prohibited, conversation not permitted,
lights on 24-hours-a-day, exercise allowed for only one hour per day in small indoor room,
indefinite placement with annual review, and disqualification of otherwise eligible inmate for
parole consideration).
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Plaintiff does not have a constitutional right to dictate where he is housed, whether it is
which facility or which classification within a facility. See Schell v. Evans, 550 F. App’x 553, 557
(10th Cir. 2013) (citing Meachum, 427 U.S. at 228–29; Cardoso v. Calbone, 490 F.3d 1194, 1197–
98 (10th Cir. 2007). Moreover, jail officials are entitled to great deference in the internal operation
and administration of the facility. See Bell v. Wolfish, 441 U.S. 520, 547–48 (1979).
Plaintiff also mentions the Eighth Amendment, seeming to assert that conditions in the
SHU at FCI-McLean amounted to cruel and unusual punishment. A prison official violates the
Eighth Amendment when two requirements are met. Farmer v. Brennan, 511 U.S. 825, 834
(1994). “First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Id. To satisfy
the objective component, a prisoner must allege facts showing he or she is “incarcerated under
conditions posing a substantial risk of serious harm.” Id.; Martinez v. Garden, 430 F.3d 1302,
1304 (10th Cir. 2005).
The Eighth Amendment requires prison and jail officials to provide humane conditions of
confinement guided by “contemporary standards of decency.” Estelle v. Gamble, 429 U.S. 97,
103 (1976). The Supreme Court has acknowledged that the Constitution “‘does not mandate
comfortable prisons,’ and only those deprivations denying ‘the minimal civilized measure of life’s
necessities’ are sufficiently grave to form the basis of an Eighth Amendment violation.” Wilson
v. Seiter, 501 U.S. 294, 298 (1991) (internal citations omitted). Indeed, prison conditions may be
“restrictive and even harsh.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). “Under the Eighth
Amendment, (prison) officials must provide humane conditions of confinement by ensuring
inmates receive the basic necessities of adequate food, clothing, shelter, and medical care and by
taking reasonable measures to guarantee the inmates’ safety.” McBride v. Deer, 240 F.3d 1287,
1291 (10th Cir. 2001) (citation omitted).
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The second requirement for an Eighth Amendment violation “follows from the principle
that ‘only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.’”
Farmer, 511 U.S. at 834. Prison officials must have a “sufficiently culpable state of mind,” and
in prison-conditions cases that state of mind is “deliberate indifference” to inmate health or safety.
Id. “[T]he official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837. “The
Eighth Amendment does not outlaw cruel and unusual ‘conditions’; it outlaws cruel and unusual
‘punishments.’” Id. It is not enough to establish that the official should have known of the risk of
harm. Id.
Because the sufficiency of a conditions-of-confinement claim depends upon “the particular
facts of each situation; the ‘circumstances, nature, and duration’ of the challenged conditions must
be carefully considered.” Despain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001) (quoting Johnson
v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000)). “While no single factor controls . . . the length of
exposure to the conditions is often of prime importance.” Id. As the severity of the conditions to
which an inmate is exposed increases, the length of exposure required to make out a constitutional
violation decreases. Accordingly, “minor deprivations suffered for short periods would not rise to
an Eighth Amendment violation, while ‘substantial deprivations. . .’ may meet the standard despite
a shorter duration.” Id. (citations omitted). Plaintiff has alleged fairly minor deprivations suffered
for short periods of time. He also does not make clear whether he suffered several of the described
deprivations or whether they were experienced by other prisoners. Plaintiff has failed to claim a
sufficiently serious deprivation regarding his conditions of confinement.
In summary, Plaintiff’s constitutional claims are subject to dismissal for improper venue
and for failure to state a claim.
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IV. Response Required
Plaintiff is required to show good cause why his Complaint should not be dismissed for the
reasons stated herein. Failure to respond by the deadline may result in dismissal of this matter
without further notice for failure to state a claim.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is granted until April
30, 2026, in which to show good cause, in writing to the undersigned, why Plaintiff’s Complaint
should not be dismissed for the reasons stated herein.
IT IS SO ORDERED.
Dated March 31, 2026, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE
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