Salary v. United States Government

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

TENTH CIRCUIT August 11, 2014

Elisabeth A. Shumaker
Clerk of Court
MARK T.J. SALARY,
Plaintiff – Appellant,
v. No. 14-3095
UNITED STATES GOVERNMENT; (No. 5:14-CV-03061-SAC)
KANSAS BOARD OF (D. Kan.)
CORRECTIONS,
Defendants – Appellees.

ORDER AND JUDGMENT*

Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.**

Mark Salary, a state prisoner, filed a civil rights suit alleging that the conditions of his

confinement—the small square footage in his cell, his lack of privacy, high noise levels,

poor sanitation, lack of access to cleaning supplies, lack of access to showers, poor

nutrition and dining conditions, poor air quality, and lack of safety—violated the Eighth

and Fourteenth Amendments. He named the United States and the Kansas Board of

*
This order is not binding precedent except under the doctrines of law of the case, res
judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Court Rule
32.1.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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.
Corrections1 as defendants, and he sought monetary damages. On preliminary review,2

the district court dismissed his claims because the defendants are immune from suits for

money damages.

STANDARDS

We review de novo the District Court's sua sponte dismissal under 28 U.S.C.

§ 1915A(b). See McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997); see also

Haddock v. RJW Inc., 173 F.3d 863 (10th Cir. 1999).

Because Salary is pro se, we afford his pleadings a liberal construction. See Haines v.

Kerner, 404 U.S. 519, 520–21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

1991). But he still must comply with the fundamental requirements of the Federal Rules

of Civil Procedure. Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994).

Likewise, his pro se status does not excuse his obligation to comply with the

requirements of substantive law. See McNeil v. United States, 508 U.S. 106, 113 (1993).

1
The district court liberally construed this defendant to mean the Kansas Department
of Corrections.
2
Under 28 U.S.C. § 1915A(a), a federal court must conduct a preliminary review of
any case in which a prisoner seeks relief against a governmental entity or an officer or
employee of such an entity. Following this review, the court must dismiss any portion of
the complaint that is frivolous, malicious, fails to state a claim upon which relief may be
granted, or seeks monetary damages from a defendant who is immune from that relief.
See 28 U.S.C. § 1915A(b).

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 DISCUSSION

As the district court explained, the United States is immune from suit for monetary

relief unless a statute waives immunity. FDIC v. Meyer, 510 U.S. 471, 475 (1994)

(“Absent a waiver, sovereign immunity shields the Federal Government and its agencies

from suit.”); Block v. North Dakota, 461 U.S. 273, 287 (1983) (the basic rule of federal

sovereign immunity is that the United States cannot be sued at all without the consent of

Congress). The United States has not given its consent to be sued for alleged violations of

the Eighth and Fourteenth Amendments committed against state prisoners. See Martinez

v. Winner, 771 F.2d 424, 442 (10th Cir. 1985) (The United States “has not waived its

sovereign immunity for constitutional torts as such.”). Thus, the district court rightly

dismissed Salary’s claim for damages against the United States according to 28 U.S.C.

§ 1915A(b), which requires a court to dismiss a prisoner complaint that seeks monetary

damages from a defendant who is immune from that relief.

As the district court also explained, addressing the claim against the Kansas

Department of Corrections, the Eleventh Amendment bars suits in federal court for

monetary relief against a state by the citizens of the state. Atascadero State Hosp. v.

Scanlon, 473 U.S. 234, 238 (1985). Absent consent, Eleventh Amendment immunity

extends to state agencies “regardless of the nature of the relief sought.” Pennhurst State

Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Because no consent was given

here, the district court rightly dismissed Salary’s claim for damages against the Kansas

Department of Corrections. See 28 U.S.C. § 1915A(b).

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 CONCLUSION

Interpreting and applying Salary’s pleadings generously, we still affirm the district

court’s order dismissing his complaint because the defendants are immune from suits for

money damages. Thus, we dismiss this appeal.

Because we affirm the district court’s dismissal under 28 U.S.C. § 1915A, we assess

one strike against Salary under the Prison Litigation Reform Act. 28 U.S.C. § 1915(g);

see Jennings v. Natrona County Detention Center Medical Facility, 175 F.3d 775, 780

(10th Cir. 1999) (“If we affirm a district court dismissal under 28 U.S.C. § 1915(e)(2)(B),

the district court dismissal then counts as a single strike.”).3

The district court granted Salary leave to proceed on appeal without prepayment of

fees. We remind Salary that he is obligated to continue making partial payments until the

entire fee has been paid.

ENTERED FOR THE COURT

Gregory A. Phillips
Circuit Judge

3
Though the district court here dismissed under 28 U.S.C. § 1915A(b) “due to
defendants’ immunity from suit for monetary damages,” Jennings still controls because a
dismissal under § 1915(e)(2)(B) encompasses situations where the prisoner “seeks
monetary relief against a defendant who is immune from such relief.”
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