Robertson (ID 76205) v. Lee

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

JOSHUA JAMES ROBERTSON,

Plaintiff,

v. CASE NO. 18-3014-SAC

KESHIA LEE, et al.,

Defendants.

MEMORANDUM AND ORDER

This matter is a civil rights action filed under 42 U.S.C. § 1983

by a prisoner in state custody. Defendants filed a motion to dismiss,

or, in the alternative, for summary judgment, and plaintiff has filed

a response. For the reasons that follow, the Court grants the motion

for summary judgment.

Background

On or about October 26, 2017, officers in the mailroom of the

Lansing Correctional Facility (LCF) rejected a letter sent to

plaintiff by his mother and marked “Legal Mail.” The return address

on the envelope read:

Mother of Joshua James Robertson (John 15:13)

Inmate #76205 In Care of

[residential address of sender]

Shortly afterwards, the LCF mailroom received approximately 17

more envelopes from plaintiff’s mother marked as legal mail and

identifying her as the sender. Each of the envelopes contained copied

materials from a book. Defendants Lee, a staff member in the mailroom,

and Winkelbauer, the deputy warden, reviewed these materials and

requirement under Kansas law that books mailed to prisoners be sent

from a publisher or vendor.

The first envelope was returned to the sender marked “Return to

Sender” with the stamped notation, “Books, Calendars, Newspapers and

Magazines must come from the Publisher or Vendor.”

Although LCF officials failed to issue a notice of censorship

to plaintiff concerning the first letter from his mother, he learned

of the rejection from her and filed a grievance. The first response

to the grievance stated that the letter “contained copies of a book.

The materials were reviewed and determined that they needed to be

returned to the sender. Additionally, the envelope weighed more than

1 ounce.”

Plaintiff appealed to the warden, whose response affirmed the

rejection, stated that the envelope explained the reason for the

rejection, and added, “Several other 9” x 12” envelopes were also

rejected for excess weight and copied book pages.”

Plaintiff then appealed to the Secretary, who found that,

although the institution erred in failing to issue a notice of

censorship, plaintiff had challenged the censorship through the

grievance procedure. The response upheld the rejection.

Plaintiff did not file grievances concerning the remaining

envelopes.

Finally, plaintiff presents a claim that defendants

substantially burdened his religious exercise by depriving him of the

December 2017 and January 2018 issues of Sapphires, a daily devotional

published by Hope of the World, a Messianic Jewish Ministry.

Discussion

The Court first addresses the pending non-dispositive motions.

Plaintiff’s motion for court order (Doc. 28)

Plaintiff seeks an order directing counsel for the Kansas

Department of Corrections to include in the Martinez report1 evidence

and contents of a mailing from his mother that was censored on October

5, 2018. Attachments show that plaintiff received a notice of mail

censorship on the same day. The notice identified the grounds for the

censorship as (1) the publication was not received from a vendor; (2)

the weight exceeded the one ounce limit; and (3) the mailing contained

legal materials that were not sent from a legal source (Doc. 28, Att.

p. 2).

The Court denies this request. In light of the Court’s resolution

of this action, the addition sought by plaintiff, concerning another

item of mail from his mother identified as legal mail, is futile.

Plaintiff’s motion to amend complaint (Doc. 33)

Plaintiff filed a motion to amend which seeks to add a claim

arising under state law and alleging a deprivation of property caused

by the return of the purported legal mail sent by his mother. The Court

finds this claim is legally frivolous and denies the motion to amend

the complaint.

Plaintiff’s motion to strike clerk’s order extending time and motion

to recuse (Doc. 37)

On January 8, 2019, plaintiff filed a combined motion to recuse

and motion to strike the clerk’s order extending time to answer. The

rules of the District of Kansas allow the clerk of the court to grant

certain orders, including orders extending for 14 days the time to

1 Under Martinez v. Aaron, 570 F.2d 317, 318-19 (10th Cir. 1978)(per curiam), district

answer or otherwise plead to a complaint. D. Kan. R. 77.2(a)(2). The

clerk’s order in this matter was issued in compliance with that rule,

and plaintiff is not entitled to relief.

Plaintiff also moves for recusal, citing the delay in ruling on

his motion to amend. Two statutes govern judicial recusal, 28 U.S.C.

§§ 144 and 455. Burleson v. Spring PCS Group, 123 F. App’x 957, 959

(10th Cir. 2005). For recusal under §144, the moving party must submit

an affidavit showing bias and prejudice. Id. (citing Glass v. Pfeffer,

849 F.2d 1261, 1267 (10th Cir. 1988)). The bias and prejudice must be

personal, extrajudicial, and identified by “facts of time, place,

persons, occasions, and circumstances.” Id. at 960 (quoting Hinman

v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987)). The facts will be

accepted as true, but they must be more than conclusions, rumors,

beliefs, and opinions. Id. Without an affidavit showing bias or

prejudice and proper identification of events indicating a personal

and extrajudicial bias, a plaintiff does not support a request for

recusal under 28 U.S.C. § 144.

Under 28 U.S.C. § 455(a) and (b)(1), a judge “shall disqualify

himself in any proceeding in which his impartiality might reasonably

be questioned” or if “he has a personal bias or prejudice concerning

a party.” 28 U.S.C. § 455(a) and (b)(1).

A judge has as strong a duty to preside in a case where there

is no legitimate reason for recusal as a duty to recuse when the

circumstances require it. Hinman v. Rogers, 831 F.2d 937, 939 (10th

Cir. 1987). The Court is familiar with the case, has considered the

record, and finds plaintiff makes only broad allegations that do not

show bias or prejudice. Likewise, the Court finds no reason to recuse

Accordingly, the Court declines to grant the request for recusal.

Defendants’ motion for extension of time to answer (Doc. 38)

On January 18, 2019, defendants filed a motion for extension of

time to file an answer. The Court grants the motion and notes that

defendants filed a motion to dismiss or, in the alternative, for

summary judgment on January 31, 2019.

Defendants’ motion to stay discovery (Doc. 42)

Defendants move for a stay of discovery (Doc. 42). The District

of Kansas has a general policy that a pending dispositive motion does

not require a stay of discovery. See Wolf v. United States, 157 F.R.D.

296, 297-98 (D. Kan. 1994). There are four exceptions to this policy,

namely, discovery may be stayed if the case is likely to be resolved

through the dispositive motion; the facts to be developed through

discovery would not affect the resolution of the dispositive motion;

the discovery would be unduly burdensome; or the dispositive motion

presents issues concerning a defendant’s immunity from suit. Citizens

for Objective Public Educ. Inc. v. Kansas State Bd. of Educ., 2013

WL 6728323, *1 (D. Kan. Dec. 19, 2013); see also Kutilek v. Gannon,

132 F.R.D. 296, 297-98 (D.Kan. 1990).

In this case, defendants assert a defense of qualified immunity,

and the Court grants the request to stay discovery. See Siegert v.

Gilley, 500 U.S. 226, 232-33 (1991)(discovery and pretrial

proceedings should not go forward until threshold immunity question

is resolved); Workman v. Jordan, 958 F.2d 332, 336 (10th Cir.

1992)(where defendant asserts qualified immunity defense, court

should grant request to stay discovery pending ruling on that issue).

Plaintiff’s motion for extension of time to respond to defendants’

dispositive motion (Doc. 44)

On February 4, 2019, plaintiff moved for an extension of time

to respond to defendants’ motion to dismiss or summary judgment (Doc.

44). The Court grants the motion and notes that plaintiff filed the

response on February 18, 2019.

Summary judgment standard

Summary judgment provides a means of testing whether the

available evidence would allow a reasonable jury to find in favor of

a party presenting a claim. Summary judgment is appropriate “if the

movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). “An issue is ‘genuine’ if there is sufficient evidence

on each side so that a rational trier of fact could resolve the issue

either way.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th

Cir. 1998). “An issue of fact is ‘material’ if under the substantive

law it is essential to the proper disposition of the claim.” Id.

A party moving for summary judgment has the burden of showing

that the undisputed material facts entitle it to judgment as a matter

of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the

moving party carries the initial burden, the opposing party must “go

beyond the pleadings and designate specific facts” that would be

admissible at trial “so as to make a showing sufficient to establish

the existence of an element essential to that party’s case in order

to survive summary judgment.” Self v. Crum, 439 F.3d 1227, 1230 (10th

Cir. 2006).

The court then must determine “whether the evidence presents a

it is so one-sided that one party must prevail as a matter of law.”

Anderson v. Liberty Lobby, 477 U.S. 242, 251-52 (1986).

A court considering a motion for summary judgment views the

evidence and the inferences supported by the record in the light most

favorable to the nonmoving party. Pepsi-Cola Bottling Co. of

Pittsburg, Inc. v. PepsiCo Inc., 431 F.3d 1241, 1255 (10th Cir. 2005).

There must be more than a scintilla of evidence to support the position

of the nonmoving party; rather, “there must be evidence on which the

[trier of fact] could reasonably find for the [nonmoving party].”

Celotex, 477 U.S. at 322.

When a defendant raises the defense of qualified immunity on

summary judgment, “the burden shifts to the plaintiff to show that:

(1) the defendant violated a constitutional right and (2) the

constitutional right was clearly established.” Martinez v. Beggs, 563

F.3d 1082, 1088 (10th Cir. 2009).

Defendants seek summary judgment on the following grounds:

first, plaintiff has failed to exhaust administrative remedies on

claims except those related to the first letter, received on or about

October 26, 2017; next, they seek dismissal of plaintiff’s claims

against defendants in their official capacity as barred by the

Eleventh Amendment; third, they allege the complaint fails to support

a plausible claim that defendants Burris, Cline, Shipman, Wagner, and

Winkelbauer personally participated in the alleged violation of

plaintiff’s rights; fourth, they allege a failure to state a claim

for relief; fifth, they assert that defendants are entitled to

qualified immunity; finally, they allege amendment is futile due to

plaintiff’s failure to exhaust available remedies on any other alleged

The Court considers these grounds in order.

The failure to exhaust

The Prison Litigation Reform Act (PLRA) requires a prisoner to

exhaust available administrative remedies before commencing a federal

lawsuit. 42 U.S.C. § 1997e(a). “[T]o properly exhaust administrative

remedies, prisoners must complete the administrative review process

in accordance with the applicable procedural rules – rules that are

defined not by the PLRA, but by the prison grievance process itself.”

Jones v. Bock, 549 U.S. 199, 218 (2007)(internal citation and

quotation marks omitted).

Prisoners in the custody of the Kansas Department of Corrections

normally must use the four-part grievance procedure set out in K.A.R.

44-15-101. This regulation requires a prisoner to first attempt to

informally resolve the matter with staff members in the unit team.

K.A.R. 44-15-101(b). If the informal attempt is unsuccessful, the

prisoner then uses the formal, three-tiered grievance process which

requires a written grievance first to the unit team, next to the

warden, and finally to the office of the secretary of corrections.

K.A.R. 44-15-101(d).

Plaintiff filed Grievance No. AA20180249 on November 2, 2017,

after he learned from his mother that her first letter to him

identified as legal mail had been returned. It is clear that he

completed all phases of the grievance procedure concerning the initial

piece of mail rejected by the LCF mailroom (Doc. 30, Ex. 2).

The plaintiff did not pursue grievances concerning the remaining

envelopes rejected in late October 2017, although they were addressed

briefly in the grievance response prepared by the warden (Doc. 1, Att.

those materials in its evaluation of plaintiff’s claims.

Defendants have presented evidence that plaintiff did not submit

a grievance concerning the December 2017 and January 2018 issues of

Sapphires (Doc. 41, Ex. 1, Burris decl.). These materials were not

censored by the Department of Corrections, and plaintiff does not

argue that he filed a grievance or property claim concerning them.

The Court therefore finds the claim concerning these items must be

dismissed for failure to exhaust administrative remedies.

Eleventh Amendment immunity

The Eleventh Amendment bars actions against states and state

entities in federal court. See Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 98 (1984). Claims against state officials in

their official capacities are viewed as claims against the state

entity. Kentucky v. Graham, 473 U.S. 159, 165 (1985)

(“Official-capacity suits . . . generally represent only another way

of pleading an action against an entity of which an officer is an

agent.”). Plaintiff’s claims for damages against defendants in their

official capacities therefore are dismissed.

Personal participation

An essential element of a civil rights claim against an

individual is that person’s direct, personal participation in acts

or omissions upon which the complaint is based. Graham, 473 U.S. at

166. It is settled that Ҥ 1983 does not recognize a concept of strict

supervisory liability; the defendant’s role must be more than one of

abstract authority over individuals who actually committed a

constitutional violation.” Fogarty v. Gallegos, 523 F.3d 1147, 1162

(10th Cir. 2008); see Ashcroft v. Iqbal, 556 U.S. 662, 676

suits, a plaintiff must plead that each Government-official

defendant, through the individual’s own actions, has violated the

Constitution.”).

An individual official’s participation in the denial of

administrative grievances is insufficient to establish personal

participation. See Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir.

2009)(the “denial of a grievance, by itself, without any connection

to the violation of constitutional rights alleged by plaintiff, does

not establish personal participation under § 1983.”).

The Court has considered the record and finds support for the

personal participation of defendants Lee and Winkelbauer, who met to

review the materials sent to plaintiff and determined they violated

the publications policy. See Doc. 30, Ex. 3, Lee affidavit. The

remaining defendants, namely, Shipman, Wagner, Cline, and Burris will

be dismissed.

Qualified immunity

“Individual defendants named in a § 1983 action may raise a

defense of qualified immunity, which shields public officials from

damages actions unless their conduct was unreasonable in light of

clearly established law.” Estate of Booker v. Gomez, 745 F.3d 405,

411 (10th Cir. 2014)(internal citation and punctuation omitted). See

Elder v. Holloway, 510 U.S. 510, 514 (1994)(“The central purpose of

affording public officials qualified immunity from suit is to protect

them ‘from undue interference with their duties and from potentially

disabling threats of liability.’”)(quoting Harlow v. Fitzgerald, 457

U.S. 800, 806 (1982)).

A dispositive motion based on qualified immunity places the

occurred and that the right was clearly established when the violation

occurred. Green v. Post, 574 F.3d 1294, 1300 (10th Cir.

2009)(quotations omitted).

“A clearly established right is one that is ‘sufficiently clear

that every reasonable official would have understood that what he is

doing violates that right.’” Mullenix v. Luna, ___ U.S. ___, 136 S.Ct.

305, 308 (2015)(per curiam)(quoting Reichle v. Howards, 566 U.S. 658,

664 (2012)). The plaintiff must show that there is Supreme Court or

Tenth Circuit precedent on point or that there is a “clearly

established weight of authority from other courts [that] have found

the law to be as the plaintiff maintains.” Klein v. City of Loveland,

661 F.3d 498, 511 (10th Cir. 2011)(quotations omitted). In this

context, “the salient question … is whether the state of the law …

gave [defendants] fair warning that their alleged treatment of

[plaintiff] was unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741

(2002).

The Court incorporates its discussion of whether the defendants

are entitled to qualified immunity in the discussion of whether

plaintiff fails to state a claim for relief.

Failure to state a claim for relief

To state a claim for relief under § 1983, a plaintiff must allege

acts by government officials, acting under color of law, that caused

the deprivation of a constitutional right. West v. Atkins, 487 U.S.

42, 48 (1988).

Plaintiff’s claim implicates the First Amendment right of free

speech. “[A] prison inmate retains those First Amendment rights that

are not inconsistent with his status as a prisoner or with the

v. Procunier, 417 U.S. 817, 822 (1974). The federal courts, however,

have upheld the censorship of inmate mail where it is supported by

legitimate penological interests. See Wolff v. McDonnell, 418 U.S.

539, 576 (1974).

Here, the defendant officials rejected plaintiff’s incoming mail

on dual grounds, namely, that the material was over the one-ounce

limit, and that it appeared to be an attempt to avoid the requirement

that a book must be obtained directly from the publisher or vendor.

Mail sent to Kansas inmates is governed by K.A.R. 44-12-601,

Mail. At least two provisions are relevant to the action here. First,

subsection 44-12-601(g) governs publications and provides, in part,

“[o]nly books, newspapers, and periodicals received

directly from a publisher or a vendor shall be accepted.

However, an inmate shall be permitted to receive printed

material, including newspaper and magazine clippings, if

the material is included as part of a first-class letter

that does not exceed one ounce in total weight.”

K.A.R. 44-12-601(g)(1).

Second, the regulation defines “legal mail” in

44-12-601(a)(1)(A) as follows:

(1)(A) “Legal mail” means mail affecting the inmate’s right

of access to the courts or legal counsel. This term shall

be limited to letters between the inmate and any lawyer,

a judge, a clerk of a court, or any intern or employee of

a lawyer or law firm, legal clinic, or legal services

organization, including legal services for prisoners.

The courts have upheld publisher-only regulations. See, e.g.,

Bell v. Wolfish, 441 U.S. 520, 549-50 (1979)(recognizing that

hardbound books present security concerns and are conducive to the

introduction of contraband); and Jones v. Salt Lake Cty, 503 F.3d 1147,

1156-57 (10th Cir. 2007)(upholding county jail’s prohibition on

hardbound and paperback books received from outside the facility).

Here, prison officials were faced with multiple envelopes, sent

between the same parties on the same day, and containing a large amount

of photocopies of legal materials.

Although the weight of each envelope may have been slightly below

the one ounce limit2, in light of the multiple envelopes mailed at the

same time from the same person, it was reasonable for defendants to

consider the material as a whole in evaluating whether the mailing

was intended to avoid restrictions. Also, given the unusual

circumstances and volume of the mailings to plaintiff, the Court finds

the decision of the defendants to reject the mailings as an effort

to skirt the regulations was reasonable. Finally, the sender’s

identification of the mail as “legal mail” was, at best, erroneous,

and provides additional support for the rejection.

Defendants acknowledge error in the failure to issue a censorship

notice to plaintiff concerning the rejection of the October 26

correspondence. But despite that error, which would have allowed him

to protest the censorship before the materials were returned, he was

able to use the grievance procedure to challenge that decision.

After careful consideration of the record, the Court concludes

the defendants are entitled to qualified immunity in this action, and

2 See Doc. 32, Ex. 2, affidavit of Sarah Bishop and attachments, showing mailing

of 14 envelopes, each weighing 0.9 ounces at the time postage was issued. A letter

mailed to plaintiff by his mother dated October 23, 2017, reads, in part, “I just

that their actions did not violate plaintiff’s protected rights

despite the error in procedure. The Court therefore will enter summary

judgment for defendants.

IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s claim

concerning the nondelivery of two issues of Sapphires is denied for

failure to exhaust administrative remedies; defendants Shipman,

Wagner, Cline, and Burris are dismissed for lack of personal

participation; and defendants’ motion to dismiss, or, in the

alternative, for summary judgment (Doc. 40) is granted as to

defendants Lee and Winkelbauer.

IT IS FURTHER ORDERED plaintiff’s motion for court order (Doc.

28) is denied.

IT IS FURTHER ORDERED plaintiff’s motion to amend complaint

(Doc. 33) is denied.

IT IS FURTHER ORDERED plaintiff’s combined motion to strike

clerk’s order extending time and for recusal (Doc. 37) is denied.

IT IS FURTHER ORDERED defendants’ motion for extension of time

(Doc. 38) is granted.

IT IS FURTHER ORDERED defendants’ motion to stay discovery (Doc.

42) is granted.

IT IS FURTHER ORDERED plaintiff’s motion for extension of time

(Doc. 44) is granted.

IT IS SO ORDERED.

DATED: This 8th day of July, 2019, at Topeka, Kansas.

S/ Sam A. Crow

SAM A. CROW

U.S. Senior District Judge