Lewis (ID 2000066923) v. Zmuda et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TONY TREMAYNE LEWIS,
Plaintiff,
v. 	CASE NO. 25-3271-JWL
JEFF ZMUDA, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff brings this pro se civil rights case under 42 U.S.C. § 1983. Plaintiff is incarcerated
at the Hutchinson Correctional Facility in Hutchinson, Kansas (“HCF”). 	The Court granted
Plaintiff leave to proceed in forma pauperis. 	On January 16, 2026, the Court entered a
Memorandum and Order to Show Cause (Doc. 7) (“MOSC”) granting Plaintiff until February 17,
2026, to show good cause why his claims should not be dismissed for the reasons set forth in the
MOSC or to file an amended complaint to cure the deficiencies. Plaintiff has not filed an amended
complaint. This matter is before the Court on Plaintiff’s response (Doc. 11). Plaintiff’s factual
allegations and the Court’s screening standards are set forth in detail in the MOSC.
Plaintiff’s claims in Counts I and II are based on disciplinary proceedings that occurred in
December 2022. Count III is based on an incident that allegedly occurred in March 2023. Plaintiff
filed his Complaint on December 12, 2025. The Court found in the MOSC that Plaintiff’s claims
in Counts I, II, and III are barred by the applicable statute of limitations and that Plaintiff failed to
allege facts suggesting that he would be entitled to statutory or equitable tolling.
The Court found that even if Plaintiff’s claims regarding his disciplinary hearings were not
barred by the statute of limitations, the Court in Case No. 23-3236 found that Plaintiff failed to
state a due process claim based on his disciplinary proceedings. See Lewis v. Zmuda, Case No. 23-
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3236-JWL, Doc. 6, at 18–20 (D. Kan. Nov. 17, 2023). 	The Court found that Plaintiff was
attempting to raise claims that have already been dismissed for failure to state a claim.
“Repetitious litigation of virtually identical causes of action may be dismissed under § 1915 as
frivolous or malicious.” Winkle v. Hammond, 601 F. App’x 754, 754–55 (10th Cir. 2015) (quoting
McWilliams v. State of Colo., 121 F.3d 573, 574 (10th Cir. 1997) (internal quotation marks and
brackets omitted)); see also Davis v. Bacon, 234 F. App’x 872, 874 (10th Cir. 2007) (dismissing
as frivolous a complaint that “substantially mirrors” a prior complaint that was dismissed). The
Court found that Plaintiff’s claims in Counts I and II were also subject to dismissal as frivolous or
malicious.
In his response, Plaintiff indicates that because the claims in Counts I and II were dismissed
from his prior case “without prejudice” he believes that they should not be barred by the statute of
limitations. (Doc. 11, at 1.) The Court’s Memorandum and Order in Case No. 23-3236 dismisses
the case “for failure to state a claim upon which relief may be granted” and does not state that it is
dismissed “without prejudice.” 	See Lewis v. Zmuda, Case No. 23-3236-JWL, Doc. 12, at 8 (D.
Kan. Jan. 31, 2024) (“all claims, except Plaintiff’s First Amendment claim, are dismissed for
failure to state a claim upon which relief may be granted”); Doc. 27, at 8 (D. Kan. July 11, 2024)
(“this matter is dismissed for failure to state a claim upon which relief may be granted” and
“ ‘Motion for Leave to File Second Amended Complaint’ is denied”). 	The only thing in the
docket that is “without prejudice” is the denial of Plaintiff’s first motion for appointment of
counsel. See id. at Doc. 6. In addition, even “[i]f the district court dismissed the complaint without
prejudice and without leave to amend, any further complaint filed in a new case would be barred
by the statute of limitations.” Hogan v. Pilgrim’s Pride Corp., 73 F.4th 1150, at n.9 (10th Cir.
2023).
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Plaintiff also claims that the Court referenced his exhibit and should have used it as proof
of the validity of his claims regarding his disciplinary proceedings. However, the Court merely
cited the exhibit to show the timeframe of Plaintiff’s disciplinary proceedings, which indicated
they were time-barred. As to Count III, Plaintiff alleges that this claim was not addressed in his
prior case and therefore he assumed he would be allowed to make the claim in this case. (Doc. 11,
at 2.) Plaintiff provides no argument as to why he should be able to file a claim that is time-barred
merely because it was not addressed in his prior case.
Plaintiff then argues that his claims in Counts I, II, and III are part of “continuing wrongs.”
(Doc. 11, at 1–2.) 	“The continuing violation theory combines ‘conduct from both inside and
outside the limitations period into one single violation that, taken as a whole, satisfies the
applicable statute of limitations.’ ” Balance v. Johnson Cty., Kansas, Bd. of Comm’rs, 2026 WL
228639, at *2 (10th Cir. 2026) (unpublished) (citing Hamer v. City of Trinidad, 924 F.3d 1093,
1100 (10th Cir. 2019)). “The doctrine applies where no single act comprises the cause of action
because the claim is based upon combining the effects of the individual actions.” Id. (citing Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002)). Plaintiff’s claimed injuries are not
those where a series of related events are needed to constitute the violation. See id. Plaintiff’s
alleged violations are based on disciplinary proceedings that occurred in 2022 and an incident
occurring in March 2023. Plaintiff has failed to show good cause why his claims in Counts I, II,
and III should not be dismissed for failure to state a claim.1
As Count IV, Plaintiff alleges that when he requested to be separated from his cellmate at
EDCF in January 2024, he was placed in a less-favorable MRA cell with no electricity or a bunk
1 A dismissal as time-barred is for failure to state a claim. Smith v. Veterans Admin., 636 F.3d 1306, 1313 (10th Cir.
2011).
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to avoid sleeping on the floor. As Count V, Plaintiff alleges that the KDOC subjected Plaintiff to
a retaliatory in-facility transfer and cruel and unusual punishment. The Court found in the MOSC
that Plaintiff alleged minor deprivations suffered for short periods of time and failed to state a
sufficiently serious deprivation regarding his conditions of confinement. 	The Court also found
that Plaintiff does not have a right to dictate where he is housed.
In his response, Plaintiff claims that he was not denied electricity, but rather was denied a
phone in his cell for three weeks. (Doc. 11, at 2.) Plaintiff alleges that staff failed to give him a
reason why he was denied a telephone in violation of an IMPP. Id. Plaintiff also alleges that his
placement that is the subject of Count V was also done without documenting a reason why in
violation of an IMPP. Id. at 3. In an attempt to argue that his transfer was retaliatory, Plaintiff
alleges that days before his move he had filed documents to amend his claims in his prior action
and to add the KDOC as a defendant. 	Id. 	He also claims that he had filed grievances against
prison officials. Id. As for the conditions in cell 200, Plaintiff alleges that there was no outlet, so
he was not allowed to watch his television for seven days. Id. at 4. Plaintiff alleges that this failure
to provide him use of his television also violated an IMPP. Id.
Violations of state law or prison regulations do not provide a cause of action under § 1983.
Plaintiff must state a federal constitutional violation. 	State statutes do not provide a basis for
liability under § 1983 which only protects rights secured by the Constitution and laws of the United
States. 	D.L. v. United Sch. Dist. No. 497, 596 F.3d 768, 776 (10th Cir. 2010) (finding that
“Plaintiffs’ citations to Kansas case law to support their claim . . . is unavailing, as § 1983 affords
a remedy for violations of federal law and does not ‘provide a basis for redressing violations of
state law.’”) (citation omitted).
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Plaintiff claims violations of IMPPs (KDOC Internal Management Policy & Procedure).
The violation of a prison regulation does not state a constitutional violation unless the prison
official’s conduct “failed to conform to the constitutional standard.” Porro v. Barnes, 624 F.3d
1322, 1329 (10th Cir. 2010) (internal quotation marks omitted) (holding prisoner must establish
that violation of a prison policy necessarily stated a constitutional violation). As the Tenth Circuit
has stated:
[N]o reasonable jurist could conclude that [a plaintiff’s] claim that
prison officials deprived him of due process by violating internal
prison regulations rises to the level of a due process violation.
Prison regulations are “primarily designed to guide correctional
officials in the administration of a prison [They are] not designed to
confer rights on inmates….” Sandin v. Conner, 515 U.S. 472, 481-
82, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995).
Brown v. Wyoming Dept. of Corrections, 234 F. App’x 874, 878 (10th Cir. 2007). Plaintiff has
failed to show good cause why his claims in Counts IV and V should not be dismissed for failure
to state a claim.
As Count VI, Plaintiff alleges he sent a Form 9 to Officer Owens to serve as a deposition
asking Owens to confirm that Plaintiff had a bleeding lip after the assault by another inmate. The
form was returned to Plaintiff without a written confirmation on it, and Plaintiff was told that
officials were not allowed to get involved with inmates’ legal matters. 	Plaintiff claims that his
grievance on the matter was denied. The Court found in the MOSC that Plaintiff failed to state a
constitutional violation, finding that if Plaintiff was attempting to obtain discovery for Count III
in this case, any attempt at discovery is premature before his case has passed screening. 	In
addition, the Court noted that Count III was subject to dismissal as barred by the statute of
limitations, and the denial of a grievance does not constitute a constitutional violation. Plaintiff
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does not address Count VI in his response. Plaintiff has failed to show good cause why Count VI
should not be dismissed for failure to state a claim.
As Count VII, Plaintiff alleges that the KDOC’s unconstitutional policy constituted cruel
and unusual punishment. Plaintiff alleges that although his incentive level was Status 2, because
he was in restrictive housing he was not allowed to order commissary items under the Union
Supply monthly package program that was supposed to provide level 2 and 3 inmates the privilege
to order better canteen items. 	The Court found that Plaintiff failed to allege a constitutional
violation. The Court cited the Court’s decision in Plaintiff’s prior case and found that the same
rationale would apply to Plaintiff’s claim regarding his ability to order better canteen items. See
Lewis v. Zmuda, Case No. 23-3236-JWL, Doc. 6, at 17–18, 20 (D. Kan. Nov. 17, 2023).
In his response, Plaintiff alleges that the Union Supply monthly package ban is being
enforced in violation of an IMPP. 	(Doc. 11, at 5.) 	Plaintiff argues that an IMPP is considered
state law. Id. As set forth above, the violation of a prison regulation does not state a constitutional
violation unless the prison official’s conduct failed to conform to the constitutional standard. The
Court’s MOSC sets forth in detail the reasoning from Plaintiff’s prior case, in which the Court
found that: restrictions on telephone use, property possession, visitation, and recreation privileges
do not impose an atypical and significant hardship in relation to the ordinary incidents of prison
life; and Plaintiff does not have a protected liberty interest in a particular incentive level. (Doc. 7,
at 15.) Plaintiff has failed to show good cause why his claims in Count VII should not be dismissed
for failure to state a claim.
As Count VIII, Plaintiff alleges that in November 2023 he sought an emergency transfer
due to being retaliated against and harassed by staff at EDCF. 	Plaintiff alleges that he filed a
grievance that was not forwarded to the proper EDCF official and the response he received from
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Defendant Chastain was “Thank you for your input.” Plaintiff then filed a grievance on Chastain,
and it was denied. 	Plaintiff appealed to the Warden and received no response. 	He refiled the
grievance a year later and it was denied. 	The Court found in the MOSC that Plaintiff’s
dissatisfaction with the responses or lack of responses to his grievances does not state a claim;
claims based on events occurring in November 2023 are barred by the applicable two-year statute
of limitations; and Plaintiff does not have a right to dictate where he is housed. Plaintiff does not
address Count VIII in his response. Plaintiff has failed to show good cause why Count VIII should
not be dismissed for failure to state a claim.
Plaintiff’s Complaint includes another Count labeled as Count 32, alleging that although
at EDCF he was allowed 15-20 minutes to shower and the use of a mirror when shaving, he is only
given 5 to 7 minutes to shower at HCF and is not permitted to use a mirror while shaving. (Doc. 1,
at 19.) Plaintiff also alleged that staff refused to give Plaintiff his television, refused his request
to transfer, that HCF’s mailroom failed to provide him with the four manila envelopes he requested
for mailing out legal letters, and that his transfer to HCF from EDCF was retaliatory. 	Id. 	The
Court found in the MOSC that Plaintiff’s claims regarding reduced shower time, lack of a mirror
or television, and the denial of four manila envelopes, fail to state a constitutional violation. The
Court found that Plaintiff failed to show that he is being denied the minimal civilized measure of
life’s necessities.
Regarding his transfer to HCF, Plaintiff alleges in Count 32 that his “transfer to HCF from
EDCF must be deemed an act of retaliation.” Id. at 20. Plaintiff provides no other factual support
in his Complaint for why he believes his transfer to HCF was retaliatory. 	“[I]t is well established
that an act in retaliation for the exercise of a constitutionally protected right is actionable under
[42 U.S.C.] Section 1983 even if the act, when taken for a different reason, would have been
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proper.” Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990) (citations omitted). The Tenth
Circuit has held that:
Government retaliation against a plaintiff for exercising his or her First Amendment
rights may be shown by proving the following elements: (1) that the plaintiff was
engaged in constitutionally protected activity; (2) that the defendant’s actions
caused the plaintiff to suffer an injury that would chill a person of ordinary firmness
from continuing to engage in that activity; and (3) that the defendant’s adverse
action was substantially motivated as a response to the plaintiff’s exercise of
constitutionally protected conduct.
Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007).
However, an “inmate claiming retaliation must allege specific facts showing retaliation
because of the exercise of the prisoner’s constitutional rights.” Fogle v. Pierson, 435 F.3d 1252,
1264 (10th Cir. 2006) (quotations and citations omitted). 	Thus, for this type of claim, “it is
imperative that plaintiff’s pleading be factual and not conclusory. 	Mere allegations of
constitutional retaliation will not suffice.” Frazier v. Dubois, 922 F.2d 560, 562 n. 1 (10th Cir.
1990). “To prevail, a prisoner must show that the challenged actions would not have occurred ‘but
for’ a retaliatory motive.” Baughman v. Saffle, 24 F. App’x 845, 848 (10th Cir. 2001) (citing Smith
v. Maschner, 899 F.2d 940, 949–50 (10th Cir. 1990); Peterson v. Shanks, 149 F.3d 1140, 1144
(10th Cir. 1998)).
The Court found in the MOSC that Plaintiff’s claims of retaliation are subject to dismissal
for failure to allege adequate facts in support of the claims, and that Plaintiff’s allegations regarding
retaliation are generally conclusory, lacking facts to demonstrate any improper retaliatory motive.
The Court ordered Plaintiff to show good cause why any claim based on retaliation should not be
dismissed for failure to state a claim. Plaintiff was also given the opportunity to file an amended
complaint to cure the deficiencies noted in the MOSC.
Plaintiff has not filed an amended complaint to add factual support for his retaliation claim.
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In his response, Plaintiff argues that his transfer from EDCF to HCF was retaliatory. (Doc. 11, at
6.) He claims that he was transferred because he “voiced a preparation to sue prison officials.” Id.
Plaintiff claims that he was transferred shortly after he had that conversation with Centurion mental
health provider Ashley McKeen. 	Id. 	Plaintiff alleges that when he was transferred, he did not
receive his property for approximately 12 days, and when he finally received it, several documents
were missing. 	Id. 	Plaintiff claims the conversation where he indicated he was considering a
lawsuit occurred with Centurion mental health provider Ashley McKeen at EDCF, but he does not
indicate when the conversation occurred, what exactly was said, or why he believes this resulted
in his transfer to HCF.
Plaintiff claims that his placement at HCF was “something which could surely chill a
person from continuing his or her civil suit.” Id. The online Kansas Adult Supervised Population
Electronic Repository (“KASPER”) shows that Plaintiff was transferred to HCF on September 15,
2025. 2 He filed this action on December 12, 2025.
Plaintiff claims, without explanation, that if he had not disclosed his plans to file the
lawsuit, he is certain he would have remained at EDCF. 	(Doc. 11, at 6.) 	However, in his
Complaint, he indicated that he was seeking a transfer from EDCF at the end of 2023, and that he
continued to seek a transfer for over a year after that timeframe. 	Plaintiff alleges that he was
housed at EDCF during November 2023, and “during that time [he] was constantly being retaliated
and harassed by prison staff.” (Doc. 1, at 18.) Plaintiff claims that due to those retaliatory actions
he was being subjected to, “[he] sought an immediate ‘emergency transfer,’ away to a safer
facility.” 	Id. 	Plaintiff alleges that his request was responded to on December 13, 2023, by
Defendant Shawn Chastain with “thank you for your input.” Id. Plaintiff alleges that he filed a
2 See https://kdocrepository.doc.ks.gov/kasper/search/results (last visited March 5, 2026).
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grievance based on Chastain’s response and appealed the matter to the warden. Id. Plaintiff claims
that he “didn’t receive a response, so [he] resubmitted [his] dissent almost a year later.” 	Id.
Plaintiff claims that the Warden’s Office made another denial and he appealed to the Central
Office. Id. Plaintiff claims that about two weeks later, Chastain repeated this sort of harassment,
and again his grievances were denied as well as “the remedy [he] requested which was an
immediate transfer and an extra pancake and hamburger meal.” 	Id. 	Plaintiff claims that his
conditions at HCF are less favorable than his conditions at EDCF. Id. at 19. He argues that he
then sought a transfer “to a place similar to EDCF’s RHU.” Id. 	In his request for relief in his
Complaint, Plaintiff seeks a transfer to Vermont or Indiana. Id. at 26–27.
Plaintiff’s Complaint fails to provide any factual support regarding his claim that his
transfer to HCF was retaliatory. He merely makes the bald conclusion that his “transfer to HCF
from EDCF must be deemed an act of retaliation.” Id. at 20. In his response to the MOSC, Plaintiff
does not indicate what was said to his mental health provider, when it was said, or why he believes
it resulted in his transfer. While housed at EDCF, Plaintiff was seeking a transfer. See Stauch v.
Zmuda, 2024 WL 3566678, at *20 (D. Kan. 2024) (finding that plaintiff’s conclusory allegations
that her transfer was retaliatory failed to show that her transfer would not have occurred but for a
retaliatory motive where she was transferred after expressing concerns for her safety due to her
high-profile criminal case); Payton v. Marlette, 2013 WL 3147661, at *5 (D. Kan. 2013) (finding
that although defendants did not move plaintiff to his preferred location, the transfer was initiated
by plaintiff’s request to be transferred and not in retaliation). 	Plaintiff has failed to allege specific
facts in his Complaint showing retaliation because of the exercise of his constitutional rights.
Plaintiff has failed to show good cause why his retaliation claim in Count 32 should not be
dismissed for failure to state a claim.
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The Court’s MOSC provides that “[i]f Plaintiff does not file an amended complaint within
the prescribed time that cures all the deficiencies discussed herein, Plaintiff’s claims may be
dismissed without further notice.” (Doc. 7, at 22.) Plaintiff has failed to file an amended complaint
and has failed to show good cause why his Complaint should not be dismissed for the reasons set
forth in the MOSC.
Plaintiff filed a “Motion for Court Order” (Doc. 14) alleging that the survival of his claims
depends on his ability to provide a current six-month account statement, and asking the Court to
order the KDOC to use his forced saving to pay the filing fee in full. 	(Doc. 14, at 1–2.) 	On
January 16, 2026, the Court granted Plaintiff’s motion for leave to proceed in forma pauperis and
assessed an initial partial filing fee in the amount of $21.50. (Doc. 6.) The initial partial filing fee
was paid on January 29, 2026. Therefore, the survival of this case was not dependent on Plaintiff
providing an updated six-month account statement and his filing fee is not due in full. 	The
remainder of the $350.00 filing fee will be paid in installments calculated under 28 U.S.C.
§ 1915(b)(2). Plaintiff’s motion is denied as moot.
IT IS THEREFORE ORDERED BY THE COURT that this matter is dismissed for
failure to state a claim.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Court Order (Doc. 14) is denied
as moot.
IT IS SO ORDERED.
Dated March 6, 2026, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE
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