Bloom v. Shawnee County , 69 F. App'x 933 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 27 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
STEVEN KENT BLOOM,
Plaintiff-Appellant,
v. No. 02-3366
(Kansas)
CHARLES E. ANDREWS, JR., in his (D.Ct. No. 02-CV-3043)
individual capacity and in his official
capacity as Judge of Division IX,
Third Judicial District, Shawnee
County, KS; JOYCE D. REEVES, in
her official capacity as Clerk of the
Third Judicial District, Shawnee
County, KS; THEODORE D.
ENSLEY, in his official capacity as
Senior Member of the Shawnee,
County Commission; SHAWNEE
COUNTY, KANSAS; ALLEN
MORGAN, in his individual capacity
and in his official capacity as
Classification Administrator of the
Topeka Correctional Facility, R.D.U.,
Kansas Department of Corrections;
DEBORAH McGEE, in her individual
capacity and in her official capacity as
Reception and Diagnostic Specialist of
the Kansas D.O.C.; CHARLES E.
SIMMONS, in his official capacity as
Secretary of Corrections of the Kansas
D.O.C.; The KANSAS
DEPARTMENT OF CORRECTIONS;
STATE OF KANSAS,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Pursuant to the screening provisions of the Prison Litigation Reform Act,
28 U.S.C. §1915A, the district court dismissed sua sponte prisoner Steven K.
Bloom’s 42 U.S.C. § 1983 complaint filed against various Shawnee County
officials, a state judge, and others within the Kansas Department of Corrections,
claiming a violation of his constitutional rights. Mr. Bloom, a state prisoner,
appeals the dismissal pro se. 1 Exercising jurisdiction pursuant to 28 U.S.C.
§ 1291, we affirm.
Mr. Bloom’s complaint, as well as his brief on appeal, are nearly
incomprehensible. The district court charitably construed his complaint as
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1
We liberally construe pro se pleadings. Ledbetter v. City of Topeka, 318
F.3d 1183, 1187 (10th Cir. 2003).
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seeking declaratory judgment and damages for alleged violations of his civil
rights under the Eighth Amendment and the Due Process Clause. The district
court screened Mr. Bloom’s allegations in accord with 28 U.S.C. §1915A, 2
attempting to identify any cognizable claim for relief. Finding none, the district
court dismissed the complaint, articulating its reasons as follows.
First, to the extent Mr. Bloom seeks correction of his sentence, his civil
rights complaint is inappropriate; habeas corpus is the correct vehicle. Second,
the state court judge named as a Defendant enjoys absolute immunity from
judicial actions. Third, no comprehensible claim for relief was stated with regard
to Mr. Bloom’s contention that an intentional, clerical error was made when his
sentence was documented. Fourth, no viable claim emerged from Mr. Bloom’s
accusations that his records were intentionally falsified, a psychiatrist’s
recommendation was ignored, and his medical needs were met with deliberate
indifference. 3 The district court stated, and we agree, “the resulting conditions to
2
28 U.S.C. § 1915A applies to all prison litigants, without regard to their
fee status, who bring civil suits against a governmental entity, officer, or
employee. Plunk v. Givens, 234 F.3d 1128, 1129 (10th Cir. 2000).
3
For instance, Mr. Bloom appears to accuse prison officials of aggravating
conditions of his post traumatic stress syndrome by ignoring a psychiatrist’s
recommendation that, when in group situations, he should have the opportunity to
distance himself from others to avoid conflict. He filed a grievance with the
Kansas Department of Corrections, complaining that he should have been placed
in maximum not minimum security apparently to effectuate isolation. A
classification administrator responded to the grievance, noted that Mr. Bloom had
failed to request any relief, and explained that there was no medical diagnosis that
would have affected his classification. Mr. Bloom fails to present any facts in his
complaint to suggest that the recommendation by the psychiatrist or any medical
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which plaintiff claims he was subjected do not suggest that defendants were
deliberately indifferent to a serious medical need of plaintiff . . . and are not the
type of atypical, significant deprivation in which a state might conceivably create
a liberty interest.” (Bloom v. Shawnee County, No. 02-3043, District Court Order
at 4 (Sept. 5, 2002) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976); Sandin v.
Conner, 515 U.S. 472 (1995)). After parsing the complaint for any possible cause
of action, and finding none, the district court concluded Mr. Bloom could not
state a factual or legal basis for his damage claim against Shawnee County or its
officials.
Dismissal pursuant to § 1915A for failure to state a claim upon which relief
can be granted is reviewed de novo. McBride v. Deer, 240 F.3d 1287, 1289 (10th
Cir. 2001). 4 “‘The procedure required by § 1915A is by its terms a screening
needs were ignored. He presents no evidence that he is unable to leave group
situations when he becomes irritated, and there is nothing in the record to identify
what medical needs he sought and allegedly never received.
Mr. Bloom appears fixated on the idea that the psychiatrist’s note suggested
he be given the opportunity to leave volatile situations should mandate that he be
classified to maximum security. As explained by the United States Supreme
Court in Sandin v. Conner, 515 U.S. 472 (1995), Mr. Bloom’s incarceration
classification in light of the psychiatrist’s recommendation falls quite short of a
liberty deprivation. Instead, it sits within the range of administrative decisions
made by prison officials to effectuate the “ordinary incidents of prison life.” 515
U.S. at 483. No cause of action exists here.
4
It appears that the district court dismissed for failure to state a claim but
occasionally characterized the complaint as frivolous. In Plunk v. Givens, 234
F.3d 1128, 1130 (10th Cir. 2000), we noted this Court had not yet determined
whether a dismissal pursuant to § 1915A on the ground that the complaint is
legally frivolous is reviewed de novo or for abuse of discretion. Mr. Bloom’s
complaint fails under either standard.
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process, to be applied sua sponte and as early as possible in the litigation.’”
Plunk v. Givens, 234 F.3d 1128, 1129 (10th Cir. 2000) (quoting Carr v. Dvorin,
171 F.3d 115, 116 (2d Cir. 1999)). Our review of the record substantiates the
district court’s disposition of this case as one that presents no cognizable claim
upon which relief can be granted. To the extent Mr. Bloom’s appellate brief
could be interpreted to present new ideas as to how his civil rights were violated,
we will not consider a new theory mounted for the first time on appeal. Tele-
Communications, Inc. v. Comm’r Int’l Revenue, 104 F.3d 1229, 1233 (10th Cir.
1997).
Accordingly, we AFFIRM the district court’s 28 U.S.C. §1915A dismissal.
This appeal is frivolous and is dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i). Dismissal of Mr. Bloom’s frivolous appeal counts as a strike
pursuant to 28 U.S.C. § 1915(g). Likewise, the district court’s dismissal of his
complaint for failure to state a claim also counts as a strike. While Mr. Bloom
has paid his filing fee, he is reminded that he now has two strikes. If he accrues
three strikes, he will be denied in forma pauperis status in any civil action filed in
a federal court unless he is in imminent danger of physical injury. 28 U.S.C. §
1915(g).
Entered by the Court:
TERRENCE L. O’BRIEN
United States Circuit Judge
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