Gillespie (ID 2000086107) v. Holthaus et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BRADLEY GILLESPIE,
Plaintiff,
v. 	CASE NO. 25-3265-JWL
DARCIE HOLTHAUS, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff Bradley Gillespie is hereby required to show good cause, in writing to the
undersigned, why his Eighth Amendment claim and his First Amendment claims based on the lack
of library access, should not be dismissed for failure to state a claim. 	The Court finds that the
proper processing of Plaintiff’s mail censorship claim and retaliation claim cannot be achieved
without additional information from appropriate KDOC officials. Plaintiff’s due process claims,
claims based on violations of prison regulations, and claims based on grievance responses and
procedures are dismissed for failure to state a claim.
I. Nature of the Matter before the Court
Plaintiff brings this pro se civil rights action under 42 U.S.C. § 1983. 	Plaintiff is
incarcerated at the El Dorado Correctional Facility in El Dorado, Kansas (“EDCF”). 	On
December 31, 2025, the Court entered a Memorandum and Order to Show Cause (Doc. 7)
(“MOSC”) ordering Plaintiff to show good cause why his Complaint should not be dismissed for
the reasons set forth in the MOSC and granting Plaintiff an opportunity to file an amended
complaint to cure the deficiencies. 	Plaintiff has filed a response (Doc. 8) and an Amended
Complaint (Doc. 9). This matter is before the Court for screening Plaintiff’s Amended Complaint.
The Court’s screening standards are set forth in the MOSC.
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Plaintiff’s claims are based on his treatment after he chose to remain silent during a prison
investigation regarding his cellmate. 	Plaintiff claims that Defendants Thomas Williams and
Francisco Ayala violated his due process rights by placing him in segregation without a hearing.
(Doc. 9, at 6.) He claims that Williams and Ayala also failed to release him within three days as
required by prison regulations. Id.
Plaintiff claims that Defendants Williams, Ayala, Mathew Rudd, and Tyler Clark retaliated
against him for “exercising his constitutional right to remain silent under the 5th Amendment.” Id.
Plaintiff claims that Defendants Williams, Ayala, and Rudd censored his outgoing mail without
fair notice or due process. Id. Plaintiff claims that Defendant Clark ordered a mass shakedown of
E Cell-house and Larry Teach retaliated against Plaintiff by destroying his property and room “in
an unethical punitive shakedown” in violation of the Eighth Amendment’s prohibition against
cruel and unusual punishment. Id.
Plaintiff alleges that Defendants Williams and Clark denied Plaintiff access to the library
during his legal appeals, causing “injury to his appeals and financial status.” Id. Plaintiff claims
that Defendants Darcie Holthaus and Jeremy Hoepner failed to correct the issue regarding access
to the library after Plaintiff filed a grievance on the issue. Id.
Plaintiff claims that Defendants Kyli Sparks and Robin Leonard censored Plaintiff’s mail
based upon a “nonexistent 1 once rule.” Id. Plaintiff alleges that the mail was not sent, and they
gave the mail to Defendants Ayala and Rudd without notice or a reason for the censorship. Id. at
6–7. 	Plaintiff claims that Defendants Holthaus, Williams, and Hoepner failed to correct the mail
censorship issue after Plaintiff filed grievances on the issue. Id. at 7. Plaintiff claims that these
same Defendants failed to adhere to their administrative remedies and violated 42 U.S.C.
§ 1997e(a). Id.
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Plaintiff claims that after he was released from segregation, Defendants Williams, Clark,
Ayala, and Rudd began to retaliate against Plaintiff for remaining silent: by taking his job; by
denying him access to the library; by censoring his mail; by Larry Teach destroying Plaintiff’s
room and damaging his property during a shakedown; by removing him from the Hustle 2.0
program; and by using the mail room to censor his mail without notice or due process. Id Plaintiff
claims that Defendants Sparks and Leonard censored his mail by using a nonexistent one once
rule. Id.
Plaintiff claims that Defendants Williams, Holthaus, and Hoepner failed to adhere to the
grievance process and failed to provide an adequate procedure. 	Id. 	Plaintiff claims that on
numerous occasions his grievances were not answered. Id. He claims that some grievances were
lost or destroyed, and the responses never addressed or corrected the issues. Id.
Plaintiff claims that Defendants Williams and Clark are subject to supervisory liability for
failure to correct the actions of their staff and for failure to properly train, supervise, and control
subordinates. Id. Plaintiff seeks compensatory and punitive damages. Id. at 8.
II. DISCUSSION
1. Due Process
Plaintiff claims that he was placed in segregation without a hearing when he refused to
cooperate with an investigation. 	Plaintiff alleges that this placed an atypical hardship on him.
(Doc. 9, at 6.) He claims the prison regulations were violated when he was kept in segregation
longer than three days without being given a written reason. Id. Plaintiff states in his response that
he was in restrictive housing for one week. 	(Doc. 8, at 2.) He was placed in segregation on
September 11, 2024, and was released on September 18, 2024. Id. at 4. Plaintiff claims that this
violated his right to due process. (Doc. 9, at 6.)
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The Due Process Clause protects against “deprivations of life, liberty, or property; and
those who seek to invoke its procedural protection must establish that one of these interests is at
stake.” 	Wilkinson v. Austin, 545 U.S. 209, 221 (2005). 	“A liberty interest may arise from the
Constitution itself, by reason of guarantees implicit in the word ‘liberty,’ . . . or it may arise from
an expectation or interest created by state laws or policies.” Id. (citing Vitek v. Jones, 445 U.S.
480, 493–94 (1980) (liberty interest in avoiding involuntary psychiatric treatment and transfer to
mental institution); Wolff v. McDonnell, 418 U.S. 539, 556–58 (1974) (liberty interest in avoiding
withdrawal of state-created system of good-time credits)).
Liberty interests which are protected by the Due Process Clause are “generally limited to
freedom from restraint which, while not exceeding the sentence in such an unexpected manner as
to give rise to protection by the Due Process Clause of its own force . . . nonetheless imposes
atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”
Sandin v. Conner, 515 U.S. 472, 484 (1995) (internal citations omitted). Plaintiff does not have a
constitutional right to a particular security classification or to be housed in a particular yard.
Meachum v. Fano, 427 U.S. 215, 224 (1976); Harbin-Bey v. Rutter, 420 F.3d 571, 577 (6th Cir.
2005) (increase in security classification does not constitute an atypical and significant hardship
because “a prisoner has no constitutional right to remain incarcerated in a particular prison or to
be held in a specific security classification”)).
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, 545 U.S. at
221–22 (citing Meachum, 427 U.S. at 225 (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
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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 shown that his
one-week assignment to restrictive housing 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).
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 was
briefly placed in segregation as part of an ongoing investigation. 	The Court found in the MOSC
that Plaintiff’s due process claim was subject to dismissal. Plaintiff’s Amended Complaint fails
to cure the deficiencies noted in the MOSC and fails to state a due process claim. Plaintiff’s due
process claims are dismissed.
2. Violations of Regulations
Plaintiff claims that Defendants failed to follow prison regulations when they kept him in
segregation for more than three days without a written reason. 	Violations of state statutes and
prison regulations do not provide a cause of action under § 1983. 	Plaintiff must state a federal
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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).
Likewise, 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). The Court found
in the MOSC that Plaintiff’s claims based on state statutes/regulations and IMPPs are subject to
dismissal for failure to state a constitutional violation. Plaintiff’s Amended Complaint fails to cure
the deficiencies noted in the MOSC and fails to state a claim based on the violation of prison
regulations. Any claim based on violations of state statutes or prison regulations is dismissed.
3. Grievances
Plaintiff claims that Defendants Holthaus, Williams, and Hoepner violated 42 U.S.C.
§ 1997e(a) and failed to adhere to their administrative procedures. (Doc. 9, at 7.) Section 1997e(a)
provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of
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this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
Plaintiff acknowledges that a grievance procedure is in place and that he used it. Plaintiff’s claims
relate to his dissatisfaction with responses or the lack of responses to his grievances.
The Tenth Circuit has held several times that there is no constitutional right to an
administrative grievance system. Gray v. GEO Group, Inc., No. 17–6135, 2018 WL 1181098, at
*6 (10th Cir. March 6, 2018) (citations omitted); Von Hallcy v. Clements, 519 F. App’x 521, 523–
24 (10th Cir. 2013); Boyd v. Werholtz, 443 F. App’x 331, 332 (10th Cir. 2011); see also Watson
v. Evans, Case No. 13–cv–3035–EFM, 2014 WL 7246800, at *7 (D. Kan. Dec. 17, 2014) (failure
to answer grievances does not violate constitutional rights or prove injury necessary to claim denial
of access to courts); Strope v. Pettis, No. 03–3383–JAR, 2004 WL 2713084, at *7 (D. Kan. Nov.
23, 2004) (alleged failure to investigate grievances does not amount to a constitutional violation);
Baltoski v. Pretorius, 291 F. Supp. 2d 807, 811 (N.D. Ind. 2003) (finding that “[t]he right to
petition the government for redress of grievances . . . does not guarantee a favorable response, or
indeed any response, from state officials”). Plaintiff’s claims regarding the grievance process and
the failure to properly respond to grievances are dismissed for failure to state a claim. These are
the only claims against Defendants Holthaus and Hoepner.
4. Eighth Amendment
Plaintiff claims that Defendant Clark ordered a mass shakedown of E Cell-house and Larry
Teach retaliated against Plaintiff by destroying his property and room “in an unethical punitive
shakedown” in violation of the Eighth Amendment’s prohibition against cruel and unusual
punishment. 	Plaintiff acknowledges that the mass shakedown was performed on the entire
cellhouse. Plaintiff attaches to his response his notarized statement of facts that states that after
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the shakedown there was hardly any concrete showing on the floor of his cell “because it was
completely covered with legal work, clothes, books, etc. Body wash was spilled on books, papers,
legal work; and boot prints [were] on everything for being scattered all over the floor.” (Doc. 8–
1, at 29.)
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).
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
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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.
Plaintiffs’ allegations fail to allege a “sufficiently serious” deprivation or facts showing he
is “incarcerated under conditions posing a substantial risk of serious harm.” Plaintiff fails to state
an Eighth Amendment violation, and his claims suggest, at most, negligence. Claims under § 1983
may not be predicated on mere negligence. See Daniels v. Williams, 474 U.S. 327, 330 (1986); see
also Vasquez v. Davis, 882 F.3d 1270, 1277–78 (10th Cir. 2018) (deliberate indifference requires
more than negligence) (citing Farmer v. Brennan, 511 U.S. 825, 835 (1994)).
In addition, deprivations of property do not deny due process as long as there is an adequate
post-deprivation remedy. A due process claim will arise only if there is no such procedure or it is
inadequate. See Hudson v. Palmer, 468 U.S. 517, 533 (1984); see also Smith v. Colorado Dept.
of Corr., 23 F.3d 339, 340 (10th Cir. 1994) (“Fourteenth Amendment due process guarantees
pertaining to property are satisfied when an adequate, state postdeprivation remedy exists for
deprivations occasioned by state employees.”). 	Kansas prisoners have an adequate state post-
deprivation remedy. See generally, Sawyer v. Green, 316 F. App’x 715, 717, 2008 WL 2470915,
at *2 (10th Cir. 2008) (finding Kansas county prisoner could seek relief in state courts to redress
alleged deprivation of property).
Plaintiff should show good cause why his Eighth Amendment claim should not be
dismissed for failure to state a claim. 	To the extent Plaintiff alleges that the destruction of his
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property during the shakedown was retaliatory, that claim is addressed as part of Plaintiff’s
retaliation claim.
5. Court Access
Plaintiff claims that he was denied access to the library during his legal appeals. (Doc. 9,
at 6.) Plaintiff alleges in his Amended Complaint, without explanation, that “Defendants’ actions
caused injury to his appeals and financial status.” Id. Plaintiff claims that this denied him court
access and freedom of speech. 	Id. 	Plaintiff fails to give any explanation as to how the lack of
library access violated his freedom of speech.
In his response to the MOSC, Plaintiff argues that the lack of library access caused injury
to his habeas corpus appeals. 	(Doc. 8, at 5.) 	He states that he “could not prepare, research, or
obtain legal materials for his federal habeas 2254, state habeas’ [sic] under K.S.A. 60-1507 and
K.S.A. 60-1501.” 	Id. 	Plaintiff states that he raised these nonfrivolous issues:”(1) ineffective
assistance of counsel, (2) multiplicity issues with his gun charges, (3) due process issue because
he was placed in jail more than a week without charges and was not brought before a judge, and
(4) his appellate lawyers failure to raise non frivolous issues on appeal, like the fore-mentioned
issues[,] (5) due process violations.” 	Id. 	Plaintiff also claims in his response that his “§ 2254
habeas petition became time-barred, and his K.S.A. 60-1507 and 60-1501 habeas actions were
harmed, because [he] could not research, prepare, obtain legal materials, and petition the court.”
Id. at 3. He states that he lost $45,000 because he had to pay lawyers to correct damage caused by
Plaintiff’s lack of court access. Id.
It is well-established that a prison inmate has a constitutional right of access to the courts.
However, it is equally well-settled that in order “[t]o present a viable claim for denial of access to
courts, . . . an inmate must allege and prove prejudice arising from the defendants’ actions.”
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Peterson v. Shanks, 149 F.3d 1140, 1145 (10th Cir. 1998) (citations omitted); Lewis v. Casey, 518
U.S. 343, 349 (1996) (“The requirement that an inmate . . . show actual injury derives ultimately
from the doctrine of standing.”).
An inmate may satisfy the actual-injury requirement by demonstrating that the alleged acts
or shortcomings of defendants “hindered his efforts to pursue” a non-frivolous legal claim. Lewis,
518 U.S. at 351-53; see also Burnett v. Jones, 437 F. App’x 736, 744 (10th Cir. 2011) (“To state
a claim for violation of the constitutional right to access the courts, a prisoner ‘must demonstrate
actual injury . . .—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.’”) (quoting
Gee v. Pacheco, 627 F.3d 1178, 1191 (10th Cir. 2010)).
The Supreme Court plainly held in Lewis that “the injury requirement is not satisfied by
just any type of frustrated legal claim.” Lewis, 518 at 354. Rather, the injury occurs only when
prisoners are prevented from attacking “their sentences, directly or collaterally” or challenging
“the conditions of their confinement.” Id. at 355. “Impairment of any other litigating capacity is
simply one of the incidental (and perfectly constitutional) consequences of conviction and
incarceration.” Id. (emphasis in original); see also Carper v. DeLand, 54 F.3d 613, 617 (10th Cir.
1995) (“[A]n inmate’s right of access does not require the state to supply legal assistance beyond
the preparation of initial pleadings in a civil rights action regarding current confinement or a
petition for a writ of habeas corpus.”) (citations omitted).
The right to access the courts does not guarantee inmates the right to a law library or to
legal assistance, but merely to “the means for ensuring ‘a reasonably adequate opportunity to
present claimed violations of fundamental constitutional rights to the courts.’” Lewis, 518 U.S. at
350–51 (quoting Bounds v. Smith, 430 U.S. 817, 825 (1977)). 	The right to access the courts is
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“only [the right] to present . . . grievances to the courts,” and does not require prison administrators
to supply resources guaranteeing inmates’ ability “to litigate effectively once in court” or to
“conduct generalized research.” Id. at 354, 360.
Plaintiff alleges that he had to incur costs to have an attorney help with his state habeas
cases. He does not allege that he was unable to file those cases. He also alleges that the lack of
library access caused his federal § 2254 habeas action to become time-barred. However, there is
no indication that Plaintiff has attempted to file a § 2254 petition in this Court, and he fails to
explain why such an action is time-barred.
Plaintiff indicated that he was placed in segregation on September 11, 2024, and he was
denied library access during his one-week segregation and following his release. Plaintiff claims
the lack of library access caused injury to his habeas corpus appeals. Plaintiff filed a petition under
K.S.A. 60-1507 on June 10, 2022. 	See Gillespie v. Kansas, Case No. MI-2022-CV-000069
(District Court of Miami County, Kansas). 	The petition was filed by Plaintiff’s attorney Adam
Sokoloff on June 10, 2022. Id. The court granted the motion to file the petition out of time. Id.
At the January 24, 2023 hearing on the motion, the state court judge denied the motion. Id. On
February 15, 2023, Plaintiff’s attorney filed a Notice of Appeal, appealing the denied of the 1507
motion. Id. On March 22, 2024, the Kansas Court of Appeals affirmed the decision. See Gillespie
v. Kansas, No. 126,273 (Kan. Ct. App.). The opinion by the Kansas Court of Appeals lists Adam
Sokoloff as Plaintiff’s attorney. 	Therefore, it appears that Plaintiff was represented by counsel
throughout his first K.S.A. 60-1507 action, and the appeal was denied prior to the time Plaintiff
claims he was denied library access.
Plaintiff filed a second K.S.A. 60-1507 action in Miami County on March 2, 2026, and he
is represented by attorney David Miller. See Gillespie v. Kansas, Case No. MI-2026-CV-000034
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(District Court of Miami County, Kansas).
The Tenth Circuit has found that whether or not a party is represented by counsel or
proceeding pro se “is important because a court-access claim is necessarily intertwined with the
assistance vel non of counsel.” 	Carr v. Zwally, 760 F. App’x 550, 556 (10th Cir. 2019)
(unpublished) (citing United States v. Taylor, 183 F.3d 1199, 1204 (10th Cir. 1999) (“It is well
established that providing legal counsel is a constitutionally acceptable alternative to a prisoner’s
demand to access a law library.”); accord Lewis v. Clark, 577 F. App’x 786, 796–97 (10th Cir.
2014) (unpublished) (affirming dismissal of court-access claim because prisoner was represented
by counsel in underlying criminal case)).
Furthermore, the Tenth Circuit has recognized that “because there is no constitutional right
to ‘a hybrid form of representation,’” . . . “when defendants have the assistance of counsel, courts
need not consider any filings made pro se.” United States v. Sandoval-De Loa, 283 F. App’x 621,
625 (10th Cir. 2008) (unpublished) (citing United States v. McKinley, 58 F.3d 1475, 1480 (10th
Cir. 1995) and United States v. Bennett, 539 F.2d 45, 49 (10th Cir. 1976) (“[P]ermission for [hybrid
representation] [is] recognized as being discretionary with the trial court.”); see also United States
v. Castellon, 218 F. App’x 775, 780 n.4 (10th Cir. 2007) (unpublished) (“[W]here a defendant is
represented by counsel, we do not accept pro se filings or allegations.”)).
Plaintiff should show good cause why his court access claim and freedom of speech claim
regarding the lack of library access should not be dismissed for failure to state a claim. 	To the
extent Plaintiff alleges that the lack of library access was retaliatory, that claim is addressed in
Plaintiff’s retaliation claim.
6. Mail Censorship
Plaintiff claims that Defendants Sparks and Leonard censored his mail based upon a
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“nonexistent 1 once rule.” (Doc. 9, at 6.) Plaintiff alleges that Defendants violated his right to
freedom of speech and his right to send and receive mail under the First Amendment. Id. Plaintiff
alleges that Defendants Sparks and Leonard gave Plaintiff’s mail to Defendants Ayala and Rudd
“without notice or written penological reason of the censorship.” Id. Plaintiff claims the mail was
not sent or delivered. Id. at 6–7. Plaintiff claims that his mail was censored without notice or due
process. Id. at 7. In his response, Plaintiff states that he filed a grievance asking about his mail
being opened that he sent to family and friends, and “some of the mail was never received by the
family and friends.” 	(Doc. 8, at 5.) 	He also filed a grievance regarding “his mail is not being
processed and sent out by the mailroom.” Id. at 6. 	He also claims that Defendants Sparks and
Leonard stopped Plaintiff’s legal mail and letters from coming in citing a false one ounce rule “that
did not exist.” Id.
A prisoner does not surrender his constitutional rights at the prison gates, but “simply
because prison inmates retain certain constitutional rights does not mean these rights are not
subject to restrictions and limitations.” Bell v. Wolfish, 441 U.S. 520, 545 (1979). 	“A prisoner
has a constitutional right to have his outgoing mail processed for delivery, absent legitimate
penological interests to the contrary.” 	Gee v. Pacheco, 627 F.3d 1178, 1188 (10th Cir. 2010)
(citing Treff v. Galetka, 74 F.3d 191, 195 (10th Cir. 1996)).
The Court finds that the proper processing of Plaintiff’s mail censorship claim cannot be
achieved without additional information from appropriate KDOC officials. See Martinez v. Aaron,
570 F.2d 317 (10th Cir. 1978); see also Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991).
Accordingly, the Court orders the appropriate KDOC officials of to prepare and file a Martinez
Report. Once the report has been received, the Court can properly screen Plaintiff’s claims under
28 U.S.C. § 1915A.
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7. Retaliation
Plaintiff alleges that Defendants Williams, Ayala, Rudd, Clark, and Teach retaliated
against him for remaining silent during the prison investigation regarding his cellmate. Plaintiff
claims that these Defendants retaliated against him by: censoring his outgoing mail; destroying
his property in a shakedown; taking his job; denying him access to the library; and removing him
from the Hustle 2.0 program. (Doc. 9, at 6–7.)
“[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 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
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v. Maschner, 899 F.2d 940, 949–50 (10th Cir. 1990); Peterson v. Shanks, 149 F.3d 1140, 1144
(10th Cir. 1998)).
The Court finds that the proper processing of Plaintiff’s retaliation claim cannot be
achieved without additional information from appropriate KDOC officials, and this claim should
also be included in the Martinez Report.
8. Request for Relief
Plaintiff’s request for compensatory damages is barred by 42 U.S.C. § 1997e(e), because
Plaintiff has failed to allege a physical injury. Section 1997e(e) provides that “[n]o 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 or
the commission of a sexual act (as defined in section 2246 of Title 18).” 42 U.S.C. § 1997e(e).
“The plain language of the statute does not permit alteration of its clear damages
restrictions on the basis of the underlying rights being asserted.” Searles v. Van Bebber, 251 F.3d
869, 876 (10th Cir. 2001). 	“The statute limits the remedies available, regardless of the rights
asserted, if the only injuries are mental or emotional.” Id. (citing Robinson v. Page, 170 F.3d 747,
748 (7th Cir.1999)).
III. Motion for Temporary Restraining Order (“TRO”)
Plaintiff has filed a motion seeking a TRO. (Doc. 11.) Plaintiff alleges that Defendants
are subjecting Plaintiff to constitutional violations and retaliation on an ongoing basis. Id. at 1.
Plaintiff claims that Defendants are engaging in mail censorship, retaliation, obstruction, and
intimidation. Id. The only details provided by Plaintiff in the motion is his allegation that former
EI1 Officer Francisco Ayala threatened to arrest Plaintiff’s mother “for using their constitutional
rights to seek relief for unconstitutional mail censorships.” Id. 	Plaintiff asks the Court to enter an
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order restraining Defendants from: censoring Plaintiff’s mail “unconstitutionally under unwritten
rules that are unpublished”; interfering with Plaintiff’s court access; and retaliating, threatening,
and intimidating Plaintiff. Id. at 2.
“The [C]ourt may issue a temporary restraining order without written or oral notice to the
adverse party or its attorney only if: (A) specific facts in an affidavit or a verified complaint clearly
show that immediate and irreparable injury, loss, or damage will result to the movant before the
adverse party can be heard in opposition; and (B) the movant’s attorney certifies in writing any
efforts made to give notice and the reasons why it should not be required.” Fed. R. Civ. P. 65(b)(1).
“Except as to notice and duration, the legal standards governing a temporary restraining
order (“TRO”) and a preliminary injunction are the same.” Vietti v. Welsh & McGough, PLLC,
2022 WL 1288314, at *2 (N.D. Okla. April 30, 2022) (citing People’s Tr. Fed. Credit Union v.
Nat’l Credit Union Admin. Bd., 350 F. Supp. 3d 1129, 1138 (D.N.M. 2018) (“The requirements
for a TRO issuance are essentially the same as those for a preliminary injunction order.”)). “The
primary difference between a TRO and a preliminary injunction is that a TRO may issue without
notice to the opposing party and that a TRO is of limited duration.” 	Id. (citing Fed. R. Civ.
P. 65(b)).
A party seeking preliminary injunctive relief must establish “(1) a substantial likelihood of
success on the merits; (2) irreparable injury to the movant if the injunction is denied; (3) the
threatened injury to the movant outweighs the injury to the party opposing the preliminary
injunction; and (4) the injunction would not be adverse to the public interest.” Derma Pen, LLC v.
4EverYoung Ltd., 737 F. App’x 396, 402 (10th Cir. 2018) (unpublished) (quoting Dominion Video
Satellite, Inc. v. EchoStar Satellite Corp., 269 F.3d 1149, 1154 (10th Cir. 2001)). Whether sought
through a TRO or a preliminary injunction, injunctive relief is an “extraordinary remedy,” and the
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movant must demonstrate a “clear and unequivocal right” to have its request granted. Vietti, 2022
WL 1288314, at *2 (citing Greater Yellowstone Coalition v. Flowers, 321 F.3d 1250, 1256 (10th
Cir. 2003)).
Plaintiff has failed to show that he will suffer immediate and irreparable injury, loss, or
damage before the adverse party can be heard in opposition. Plaintiff fails to set forth any efforts
made to give notice to Defendants or the reasons why it should not be required. A preliminary
injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the
plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).
Plaintiff’s allegations do not establish that injury is certain and not theoretical, or more than merely
feared as liable to occur in the future. “To constitute irreparable harm, an injury must be certain,
great, actual and not theoretical.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th Cir.
2003) (internal quotation marks omitted). A preliminary injunction is only appropriate “to prevent
existing or presently threatening injuries. One will not be granted against something merely feared
as liable to occur at some indefinite time in the future.” State of Connecticut v. Commonwealth of
Massachusetts, 282 U.S. 660, 674 (1931).
A preliminary injunction is appropriate only when the movant’s right to relief is clear and
unequivocal. Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005). Moreover, a federal
court considering a motion for preliminary injunctive relief affecting the conditions of a prisoner’s
confinement must give “substantial weight to any adverse impact on public safety” and on prison
operation. 18 U.S.C. § 3626(a)(2). Finally, a mandatory preliminary injunction, such as the one
sought by Plaintiff, which requires the non-moving party to take affirmative action, is disfavored
and therefore requires the moving party to make a heightened showing of the four factors above.
Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010). Because preliminary injunctions and TRO’s
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are drastic remedies—“the exception rather than the rule—plaintiffs must show that they are
clearly and unequivocally entitled to relief.” Adrian v. Westar Energy, Inc., No. 11-1265-KHV,
2011 WL 6026148, at *3 (D. Kan. 2011) (citations omitted).
The Court finds that Plaintiff has not met his burden to make a heightened showing that
entry of a TRO is warranted. 	He has not demonstrated a likelihood of success on the merits such
that his right to relief is clear and unequivocal. Plaintiff’s motion is denied.
IV. Response Required
Plaintiff should show good cause why his Eighth Amendment claim and his First
Amendment claims based on the lack of library access, should not be dismissed for failure to state
a claim. 	Failure to respond by the deadline may result in the dismissal of these claims without
further notice for failure to state a claim.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Temporary Restraining
Order (Doc. 11) is denied.
IT IS FURTHER ORDERED that Plaintiff’s due process claims, claims based on
violations of prison regulations, and claims based on grievance procedures and responses are
dismissed for failure to state a claim. All claims against Defendants Darcie Holthaus and Jeremy
Hoepner are dismissed.
IT IS FURTHER ORDERED that Plaintiff is granted until April 13, 2026, in which to
show good cause, in writing to the undersigned, why Plaintiff’s Eighth Amendment claim and his
First Amendment claims based on the lack of library access should not be dismissed for failure to
state a claim.
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IT IS FURTHER ORDERED that that:
(1) 	The Court will enter a separate e-service order directing the Clerk of Court to serve
Defendants Thomas Williams, Tyler Clark, Francisco Ayala, Kyli Sparks, Robion Leonard,
Matthew Rudd, and Larry Teach.
(2) 	The Kansas Department of Corrections (“KDOC”) shall submit the Martinez
Report within sixty (60) days following the electronic filing of the Waiver of Service Executed.
Upon the filing of that Report, the Court will screen the remaining claims in Plaintiff’s Amended
Complaint. If any claim survives screening, the Court will enter a separate order setting an answer
deadline. Therefore, any answer deadline provided in the docket entry for the waiver of service is
not controlling.
(3) 	Officials responsible for the operation of EDCF are directed to undertake a review
of the subject matter of the remaining claims in the Amended Complaint:
a. 	To ascertain the facts and circumstances;
b. 	To consider whether any action can and should be taken by the institution
to resolve the subject matter of the Amended Complaint; and
c. 	To determine whether other like complaints, whether pending in this Court
or elsewhere, are related to this Amended Complaint and should be considered together.
(4) 	Upon completion of the review, a written report shall be compiled which shall be
filed with the Court and served on Plaintiff. 	If the KDOC officials wish to file any exhibits or
portions of the report under seal or without service on Plaintiff, they must file such portions
separately from the public report and provisionally under seal, to be followed immediately by a
Motion to Seal or Redact Document(s). The KDOC officials are exempt from filing the Notice of
Proposed Sealed Record under D. Kan. Rule 5.4.2(b).
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(5) 	Statements of all witnesses shall be in affidavit form. 	Copies of pertinent rules,
regulations, official documents, and, wherever appropriate, the reports of medical or psychiatric
examinations shall be included in the written report. Any recordings related to Plaintiff’s claims
shall also be included. The KDOC officials shall redact and/or mute audio for any personal
identifiers included in any video or recording submitted.
(6) 	Authorization is granted to the KDOC officials to interview all witnesses having
knowledge of the facts, including Plaintiff.
(7) 	No motion or other document addressed to the Amended Complaint shall be filed
until the Court has reviewed the Martinez Report and entered an order screening the remaining
claims in the Amended Complaint.
(8) 	Discovery by Plaintiff shall not commence until Plaintiff has received and reviewed
any Court-ordered answer or response to the Amended Complaint. This action is exempted from
the requirements imposed under Fed. R. Civ. P. 26(a) and 26(f).
IT IS FURTHER ORDERED that the Clerk of Court shall enter the KDOC as an
interested party on the docket for the limited purpose of preparing the Martinez Report ordered
herein. Upon the filing of that report, the KDOC may move for termination from this action.
Copies of this order shall be transmitted to Plaintiff, Defendants, counsel for the KDOC,
and the Attorney General for the State of Kansas.
IT IS SO ORDERED.
Dated March 13, 2026, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE
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