Keith v. Koerner et al

Filing 25

MEMORANDUM AND ORDER sustaining in part defendants Werholtz, Koerner, Cummings, Essman, and Robertson's 7 Motion to Dismiss Plaintiff's Complaint. Plaintiff's claims against defendants Gallardo and Koerner remain in the case. The claims against defendants Werholtz, Cummings, Essman and Robertson are dismissed. Signed by Chief Judge Kathryn H. Vratil on 3/28/2012. (mg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TRACY KEITH,

)
)
Plaintiff,
)
)
v.
)
)
ROGER WERHOLTZ,
)
RICHARD KOERNER,
)
WILLIAM CUMMINGS,
)
MAJOR JOSEPH P. ESSMAN,
)
CAPTAIN MARK ROBERTSON, and
)
ANANSTACIO GALLARDO,
)
)
Defendants.
)
__________________________________________)

CIVIL ACTION
No. 11-2281-KHV

MEMORANDUM AND ORDER
Under 42 U.S.C. §§ 1983 and 1988, Tracy Keith brings suit against Topeka Correctional
Facility (“TCF”) employees Roger Werholtz, Richard Koerner, William Cummings, Joseph P.
Essman, Mark Robertson and Ananstacio Gallardo. Plaintiff brings individual capacity claims
against all defendants, alleging violation of the Eighth Amendment.

Specifically, plaintiff

alleges that on October 2, 2007, while she was incarcerated at TCF, Gallardo forced her to have
sex.

She alleges that prior to that date, the other defendants created and allowed a

custom/policy/practice/culture of sexual misconduct at TCF which put plaintiff and other
inmates at substantial risk of harm, failed to take reasonable measures to abate the culture of
sexual misconduct and were deliberately indifferent to this substantial risk of harm.
This matter is before the Court on the Motion To Dismiss Plaintiff’s Complaint (Doc. #7)
which defendants Werholtz, Koerner, Cummings, Essman and Robertson filed July 15, 2011.

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Under Rule 12(b)(6), Fed. R. Civ. P., the moving defendants assert qualified immunity and claim
that plaintiff brings her claims outside the statute of limitations. For reasons stated below, the
Court sustains defendants’ motion in part.
Legal Standards
A. Motion To Dismiss
In ruling on a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., the Court assumes
as true all well-pleaded factual allegations and determines whether they plausibly give rise to an
entitlement of relief. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). To survive a motion to
dismiss, a complaint must contain sufficient factual matter to state a claim which is plausible –
and not merely conceivable – on its face. Id.; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). In determining whether a complaint states a plausible claim for relief, the Court draws
on its judicial experience and common sense. Iqbal, 129 S. Ct. at 1950.
The Court need not accept as true those allegations which state only legal conclusions.
See id.; Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Plaintiff bears the burden of
framing her complaint with enough factual matter to suggest that she is entitled to relief; it is not
enough to make threadbare recitals of a cause of action accompanied by conclusory statements.
Twombly, 550 U.S. at 556. Plaintiff makes a facially plausible claim when she pleads factual
content from which the Court can reasonably infer that defendants are liable for the misconduct
alleged. Iqbal, 129 S. Ct. at 1949. Plaintiff must show more than a sheer possibility that
defendants have acted unlawfully – it is not enough to plead facts that are “merely consistent
with” defendants’ liability. Id. (quoting Twombly, 550 U.S. at 557). A pleading which offers
labels and conclusions, a formulaic recitation of the elements of a cause of action or naked
assertions devoid of further factual enhancement will not stand. Iqbal, 129 S. Ct. at 1949.

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Similarly, where the well-pleaded facts do not permit the Court to infer more than the mere
possibility of misconduct, the complaint has alleged – but has not “shown” – that the pleader is
entitled to relief. Id. at 1950. The degree of specificity necessary to establish plausibility and
fair notice depends on context, because what constitutes fair notice under Rule 8(a)(2),
Fed. R. Civ. P., depends on the type of case. Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th
Cir. 2008) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232-33 (3d Cir. 2008)).
B. Statute Of Limitations
While ordinarily the statute of limitations is an affirmative defense, the issue may be
resolved on a Rule 12(b)(6) motion to dismiss where the application of the limitations period is
apparent on the face of the complaint. Aldrich v. McCulloch Props. Inc., 627 F.2d 1036, 1041
(10th Cir. 1980). Because no federal statute of limitations exists for Section 1983 actions, courts
look to analogous state laws and the applicable state statutes of limitation to determine the
appropriate time limit for filing a particular Section 1983 action. Baker v. Bd. of Regents of
Kan., 991 F.2d 628, 630 (10th Cir. 1993). The parties agree that a two-year statute of limitations
applies here, and that plaintiff’s causes of action accrued on October 2, 2007. See K.S.A. § 60–
513.1 Plaintiff’s claims are thus time-barred unless she establishes a factual basis for tolling the
statute. Aldrich, 627 F.2d at 1041 n.4.

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K.S.A. § 60-513 states in relevant part as follows:
(a) The following actions shall be brought within two years: * * *
(4) An action for injury to the rights of another, not arising on
contract, and not herein enumerated.

K.S.A. § 60-513(a)(4).

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C. Qualified Immunity
Qualified immunity shields government officials from individual capacity liability for
performing discretionary acts so long as their conduct does not violate clearly-established
statutory or constitutional rights about which a reasonable person would know. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982).

Qualified immunity provides government officials

immunity from suit as well as from liability for their discretionary acts. See Mitchell v. Forsyth,
472 U.S. 511, 526-27 (1985). The doctrine of qualified immunity serves the goals of protecting
officials who are required to exercise their discretion and the related public interest in
encouraging the vigorous exercise of official authority. Butz v. Economou, 438 U.S. 478, 506
(1978). To survive a qualified immunity defense, plaintiff must allege that defendants either (1)
personally participated in the alleged constitutional violation, Foote v. Spiegel, 118 F.3d 1416,
1423 (10th Cir. 1997), or (2) in a supervisory capacity, created, promulgated or implemented a
policy which deprived plaintiff of her constitutional rights, acting with the state of mind required
to establish the alleged constitutional deprivation, Dodds v. Richardson, 614 F.3d 1185, 1199
(10th Cir. 2010), cert. denied, 131 S. Ct. 2150 (2011) (quotation omitted).
To analyze a qualified immunity defense in a motion to dismiss, the Court considers
whether plaintiff has alleged facts which make out a violation of a constitutional right, and
whether the right at issue was clearly established at the time of defendants’ alleged misconduct.
Leverington v. City of Colo. Springs, 643 F.3d 719, 732 (10th Cir. 2011) (quotations omitted).
Whether a right is “clearly established” is an objective test: “The relevant, dispositive inquiry in
determining whether a right is clearly established is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he confronted.” Stearns v. Clarkson, 615
F.3d 1278, 1282 (10th Cir. 2010) (quotation omitted). “In order for the law to be clearly

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established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly
established weight of authority from other courts must have found the law to be as the plaintiff
maintains.” Id. (quotation omitted). And, in the Tenth Circuit, it is “particularly important” that
the Section 1983 complaint makes clear exactly who is alleged to have done what to whom, to
provide each individual with fair notice as to the basis of the claims against him or her, as
distinguished from collective actions against the state. Brown v. Montoya, 662 F.3d 1152, 1163
(10th Cir. 2011) (internal quotations omitted).
Factual Background
Viewed in the light most favorable to plaintiff, the complaint and record evidence are as
follows:2
From November 16, 2006 through May 18, 2010, plaintiff was an inmate of the Kansas
Department of Corrections (“KDOC”) at TCF. During some or all of this period, defendants
worked at TCF: Werholtz as Secretary of Corrections, Koerner as Warden, Cummings as
Deputy Warden, Robertson as Captain, Essman as shift supervisor and Gallardo as an instructor
and maintenance worker.
Keith participated in the plumbing/maintenance program at TCF and Gallardo was her

2

In support of their motion, defendants attach several exhibits, all of which
plaintiff references or quotes in her complaint. Specifically, defendants attach the Performance
Audit Report to the Legislative Post Audit Committee (“Performance Audit”) (Docs. ##8-1, 8-2),
the article entitled “Women’s prison: Sex trade” published October 3, 2009 in the TopekaCapital Journal, and the Application To Modify Plea To Guilty/No Contest And Advice Of
Rights In Regards Thereto from Shawnee County Kansas District Court Case No. 08CR00433,
dated June 19, 2008. In ruling on a motion to dismiss under Rule 12(b)(6), the Court may
consider (1) indisputably authentic copies of documents if plaintiff referred to them in the
petition and the documents are central to plaintiff’s claims and (2) facts which are subject to
judicial notice. GFF Corp. v. Assoc. Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.
1997). Plaintiff does not dispute the authenticity of the documents, which appear to be central to
her claims.
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instructor. On October 2, 2007, Gallardo forced plaintiff to have sex with him. Afterward, he
smuggled morning-after pills to her and tried to give her the abortion pill RU486, but plaintiff
became pregnant.

In mid-November of 2007, another inmate told guards about Keith’s

pregnancy, and on December 19, 2007, a state victim services liaison drove Keith to the Johnson
County Planned Parenthood Clinic, where she had an abortion.
Gallardo stopped coming to work at TCF in early November of 2007 and his wife found
out about his conduct a few weeks later. Gallardo was later charged in Shawnee County, Kansas
and on June 19, 2008, he pleaded guilty to unlawful sexual relations and two counts of
trafficking in contraband in a correctional institution. While employed at TCF, Gallardo had sex
with as many as six other female prisoners and threatened to harm anyone who “broke their code
of silence.” In October of 2007, Gallardo had sex with an inmate V.S. in the TCF maintenance
building. The TCF chief investigator interviewed her and afterward, she was told not to talk to
anyone about it and sent to maximum security for approximately 30 days.
In June of 2005, another TCF inmate filed a lawsuit (Case No. 05-cv-3397-JTM-DWB)
alleging that male officers, including Essman, strip-searched her. Essman testified by affidavit
that during the strip-search he watched while another office (Van Dyke) cut off the inmate’s
clothing because it was necessary to prevent the inmate from harming herself. The Martinez
Investigative Report in that case indicates that after the incident, the warden (Koerner) clarified
the policy to require that only female officers should forcibly remove an inmate’s clothing unless
a true emergency situation exists. The suit was dismissed on summary judgment. Plaintiff
alleges that Essman hired Van Dyke and shared some of Van Dyke’s attitudes toward sexual
conduct.
On October 3, 2009, the Topeka Capital-Journal published an article entitled “Women’s

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prison: Sex trade.” The reporter interviewed plaintiff at the prison and the article quotes plaintiff
as she discusses Gallardo and specific details about the sexual assault which occurred on
October 2, 2007. In the article, Werholtz acknowledged that inmates and prison staff enter into
consensual relationships. In the 2010 Performance Audit, he admitted that that prison staff had
made the wrong choices. He also said that studies in Kansas show that veteran prison employees
are just as likely to be caught up in bad activities as young and inexperienced staff members, and
that there were likely things going on that prison staff did not know about.
Koerner treated corrections officers involved in disciplinary cases differently and his
definition of “undue familiarity” changed on a whim. In 2003, he dismissed a sergeant after four
warnings for engaging in undue familiarity with the same female inmate. In 2007, Koerner
suspended an officer for 10 days after his third instance of undue familiarity with an inmate.
Koerner allowed another corrections officer to resign after being accused of unlawful sexual
relations with a female inmate. As warden of TCF, Koerner is responsible for its overall
management, including disciplinary action of staff.

The Performance Audit indicates that

“conditions were ripe for staff misconduct” in the vocational program involving Gallardo and
that Koerner knew of issues with the program but did not make changes necessary to remedy
them until after Keith became pregnant. Koerner knows that employees try to avoid detection
when they grope inmates during the pat-down process.
Plaintiff alleges that in 2001, an inmate took semi-nude photographs of herself and gave
them to Robertson because the inmate wanted to start a relationship with him. He confiscated
the photographs but did not report the contraband within 48 hours as policy required and was
fired. He was later reinstated. In 2006, he became involved in a relationship with an inmate who
exposed herself to him and handled his genital area.

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Plaintiff generally alleges that Koerner, Cummings, Essman, Roberson, and Werholtz all
managed staff and inmates and were responsible for hiring, firing, discipline, training and
supervising corrections officers and other staff. She alleges that these defendants knew about
numerous cases of undue familiarity and sexual misconduct at TCF. For example, she alleges
that between June of 2003 and August of 2005, someone at TCF sent Form 9s to TCF
administration reporting a relationship between a corrections officer and an inmate. The officer
was not disciplined but the inmate was placed into administrative segregation for more than 70
days. She also alleges that another corrections officer (Van Dyke) regularly bragged about his
sexual conduct with inmates, fellow officers, and nurses and fathered an inmate’s child. In 2003,
a TCF store keeper specialist was suspended for 7 days and eventually terminated after taking
inappropriate photographs of inmates. She also alleges that these defendants all knew that heavy
magnets were affixed to security cameras to try to distort video images.
Plaintiff alleges that during her incarceration, she was prevented from accessing the
courts because (1) KDOC employees repeatedly instructed her not to speak with anyone or
disclose anything about “the events at issue;” (2) Gallardo threatened to kill anyone responsible
for disclosing the details described in the complaint such that his wife would learn about them;
and (3) TCF had an overall atmosphere of intimidation while plaintiff was incarcerated.
Analysis
A. Statute Of Limitations
The complaint alleges that K.S.A. § 60–515(a) tolled the statute of limitations until
May 18, 2010, when plaintiff was released from prison because during her incarceration she

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could not access the courts.3 Specifically, it alleges that (1) KDOC employees repeatedly
instructed plaintiff not to speak with anyone or disclose anything about “the events at issue;” (2)
Gallardo threatened to kill anyone responsible for disclosing the details of the assault such that
his wife would learn about them; and (3) TCF had an overall atmosphere of intimidation while
plaintiff was incarcerated there.
Defendants argue that K.S.A. § 60–515(a) does not apply because plaintiff has not
sufficiently alleged that she could not access the courts during her incarceration. Specifically,
defendants argue that the allegations which form the basis of plaintiff’s tolling argument are
conclusory and contradicted by other factual allegations within the complaint. Defendants argue
that plaintiff’s claims, which accrued on October 2, 2007, should thus be dismissed because she
filed her complaint more than two years later. K.S.A. § 60-513(a)(4). Finally, defendants argue
that Kansas courts do not recognize duress as a basis for tolling the limitations period.
Plaintiff notes that no court has analyzed K.S.A. § 60–515(a) under similar facts,
provides some additional affidavit testimony to supplement the allegations in her complaint and
argues that whether she sufficiently pleads facts which support tolling is a question of fact which

3

K.S.A. § 60–515 states in relevant part as follows:
[I]f any person entitled to bring an action . . . at the time the cause
of action accrued or at any time during the period the statute of
limitations is running, is . . . imprisoned for a term less than such
person’s natural life, such person shall be entitled to bring such
action within one year after the person’s disability is removed . . .
Notwithstanding the foregoing provision, if a person imprisoned
for any term has access to the court for purposes of bringing an
action, such person shall not be deemed to be under legal
disability.

K.S.A. § 60–515(a).

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the Court cannot appropriately resolve on a motion to dismiss. Plaintiff is correct that the cases
which interpret and apply K.S.A. § 60–515(a) do not involve facts similar to the facts upon
which she bases her tolling argument. Plaintiff bears the burden to assert facts in the complaint
which justify applying the tolling provisions of K.S.A. § 60–515(a), just like a plaintiff who
alleges a constitutional violation bears the burden to allege facts which state a plausible claim.
See Aldrich v. McCulloch Properties, Inc., 627 F.2d 1036, 1041 n.1 (10th Cir. 1980). When the
dates in the complaint make clear that the right sued upon has been extinguished, plaintiff has the
burden to establish a factual basis for tolling the statute, which may be appropriately resolved in
a motion under Fed. R. Civ. P. 12(b). Id.
Prisoners have a longstanding constitutional right of access to the courts. Bounds v.
Smith, 430 U.S. 817, 821 (1977). As such, myriad cases analyze violations of the right of access
to the courts and provide pleading standards for those who allege such claims. Government
action which chills constitutionally protected speech or expression contravenes the First
Amendment. Wolford v. Lasater, 78 F.3d 484, 488 (10th Cir. 1996). Here, plaintiff has alleged
that threats by defendants – specifically Gallardo – prevented her from accessing the courts
during her confinement.

In the Court’s view, and drawing on its judicial experience and

common sense, plaintiff has asserted sufficient facts to justify applying the tolling provision to
survive a motion to dismiss. See Rogers v. Garcia, No. 08-cv-02821-WYD-MJW, 2010 WL
3547432, at *3-6 (D. Colo. Sept. 3, 2010) (collecting cases). Defendants present facts which
purport to contradict plaintiff’s allegations, but in deciding a motion to dismiss the Court cannot
make credibility determinations about plaintiff’s subjective state of mind. Finally, the Court is
not persuaded that P.W.P. v. L.S., 266 Kan. 417, 969 P. 2d 896 (1998), forecloses duress as a
reason for tolling the statute of limitations. Rather, in that case (which was decided at summary

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judgment) the district court relied on expert testimony to find that plaintiff was not under duress
and thus could not justify tolling the statute. The Court takes this to mean that in proper cases,
duress which essentially qualifies as a separate constitutional violation could justify tolling. See
e.g. Ross v. United States, 574 F. Supp. 536, 542 (S.D.N.Y. 1983). The Court therefore overrules
defendants’ motion on statute of limitations grounds.
B. Qualified Immunity
To overcome the defense of qualified immunity, plaintiff must allege facts which show
how each named defendant, either through personal participation or in the promulgation of a
policy, violated a clearly established constitutional right. Brown, 662 F.3d at 1165. It is not
enough for the complaint to lump the named defendants together. Id. Rather, individualized
allegations of specific actions taken by particular defendants are especially important where each
defendant has different powers and duties. Id. When defendants are grouped in a single
allegation, a complaint fails to isolate the allegedly unconstitutional act(s) of each defendant. Id.
Here, plaintiff sufficiently alleges that Gallardo personally violated her constitutional
rights: sexual assaults constitute a violation under the Eighth Amendment. Smith v. Cochran,
339 F.3d 1205, 1215 (10th Cir. 2003). Plaintiff does not allege, however, that the individual
remaining defendants participated in Gallardo’s constitutional violation or knew that she faced a
substantial risk of serious harm from him and chose to ignore it. Bruner-McMahon v. Hinshaw,
No. 10-1064-KHV, 2012 WL 138607, at *16 (D. Kan. Jan. 18, 2012). Thus, plaintiff does not
allege facts which show that the named defendants, other than Gallardo, personally participated
in violating a clearly established constitutional right.
In Dodds, Brown, and Robbins, the Tenth Circuit clarified the pleading standards
necessary to impute supervisor liability after Iqbal and Twombly. A complaint which refers to

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the actions of “defendants” is not sufficient to show how each individual defendant is liable for
deprivations of constitutional rights. Brown, 662. F.3d at 1165. Thus, plaintiff cannot save
herself from this requirement by specifically naming each defendant in what is otherwise a
general allegation of misconduct. And while plaintiff correctly notes that a moment-by-moment
pleading is not required, see Dodds, 614 F.3d at 1199, the law does require some affirmative link
between the constitutional violation and “either the supervisor’s personal participation, his
exercise of control or direction, or his failure to supervise.” Id. at 1211.
Thus, it is not enough to merely show that a supervisor should
have known that a subordinate was violating someone’s
constitutional rights – rather, only a supervisor’s actual knowledge
of his subordinate’s behavior demonstrates the requisite deliberate,
intentional act by the supervisor to violate constitutional rights.
Negligence – even gross negligence, is insufficient to prove that a
supervisor caused a violation.
Id. In sum, a supervisor is only liable for violations that he caused, and causation requires at
least some degree of fault on the supervisor’s part. Id. After Iqbal, plaintiff can no longer
succeed on a Section 1983 claim by showing that a defendant supervisor behaved “knowingly or
with ‘deliberate indifference’ that a constitutional violation would occur” at the hands of his
subordinates, unless that is the same state of mind required for the constitutional deprivation she
alleges. Id. at 1204. In the Eighth Amendment context, a prison official is liability only if he
knows of and disregards an excessive risk to inmate health and safety. Gonzalez v. Martinez,
403 F.3d 1179, 1186 (10th Cir. 2005).
Here, the Court finds that plaintiff has alleged facts sufficient to state a plausible claim
against defendant Koerner, who was responsible for managing TCF and knew about multiple
instances of sexual misconduct at TCF over a period of years, inconsistently disciplined
corrections officers who engaged in prohibited sexual conduct with inmates and thus purportedly

12 

tolerated at least an informal policy which permitted sexual contact between prison staff and
inmates.
Plaintiff makes no specific allegations about Cummings, and the Court thus dismisses
plaintiff’s claims against him.

And while the complaint does make some individualized

allegations against Essman, Robertson and Werholtz, the allegations contain no affirmative link
with Gallardo’s conduct. The Court thus dismisses plaintiff’s claims against Werholtz, Essman,
and Robertson.
Plaintiff’s claims against defendants Gallardo and Koerner remain in the case.
IT IS THEREFORE ORDERED that the Motion To Dismiss Plaintiff’s Complaint
(Doc. #7) filed July 15, 2011 by Werholtz, Koerner, Cummings, Essman, and Robertson be and
hereby is SUSTAINED in part. Plaintiff’s claims against Gallardo and Koerner remain in the
case. The claims against Werholtz, Cummings, Essman and Robertson are DISMISSED.
Dated this 28th day of March, 2012 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge

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