Hammers et al v. Douglas County et al

Filing 37

MEMORANDUM AND ORDER granting 18 defendants' Motion to Dismiss for Failure to State a Claim and dismissing plaintiffs' amended complaint without prejudice. Signed by Chief Judge J. Thomas Marten on 10/21/14. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOSEPH M. HARVEY,
administrator of the estate of
RACHEL M. HAMMERS, et al.,
Plaintiffs,
v.

Case No. 14-2188-JTM

MIKE GAUGHAN, ET AL.,
Defendants.

MEMORANDUM AND ORDER
This matter comes before the court on defendants’ Motion to Dismiss pursuant to
Federal Rule of Civil Procedure 8 and 12(b)(6). Plaintiffs, the estate and surviving
children of Rachel M. Hammers, bring this action under 42 U.S.C. § 1983 and state law
against fifteen individuals and entities in connection with Hammers’s death while
detained at the Douglas County Correctional Facility. Plaintiffs’ five-count complaint
alleges three counts of Eighth Amendment violations under § 1983 and two counts of
wrongful death under Kansas state law.
Defendants raise the following seven issues: (1) plaintiffs failed to comply with
Fed. R. Civ. P. 8; (2) plaintiffs failed to state a claim under 42 U.S.C. § 1983 for alleged
deprivations of decedent Rachel Hammers’s rights under the Eighth Amendment; (3)
plaintiffs do not sufficiently identify defendants; (4) plaintiffs’ “official capacity” claim
fails to state a claim; (5) Defendants, in their individual capacities, enjoy qualified

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immunity; (6) plaintiffs improperly request punitive damages against the County and
individual defendants in their official capacities; and (7) this court should decline to
exercise supplemental jurisdiction over plaintiffs’ state-law wrongful death claims. Dkt.
18, at 2.
The court finds that plaintiffs have failed to plead a short, plain statement
showing they are entitled to relief for the deprivation of Eighth Amendment rights
under § 1983 and dismisses those claims without prejudice. Accordingly, the court does
not exercise supplemental jurisdiction over the remaining state-law claims and
dismisses them without prejudice. Dismissing counts on issues one, two, and seven
renders analysis of issues three, four, and five premature.
I. Background
In accord with the court’s obligation to accept as true a plaintiff’s alleged facts
when determining the sufficiency of a pleading, the following factual background is
adopted from the amended complaint.
Decedent Rachel Hammers, an alcoholic prone to binge drinking, was a thirtytwo year old resident of Douglas County, Kansas. Dkt. 17, at 20. On Friday, May 11,
2012, she began drinking in the morning and continued to drink until her arrest early
that evening. Dkt. 17, at 21. She was booked into the Douglas County Correctional
Facility (“DCCF”) at 5:57 p.m. but law enforcement neither administered a Breathalyzer
test nor screened for risk of alcohol withdrawal or a potential need for detoxification.
Dkt. 17, at 21. Her DCCF health record files were not consulted, she was not assessed by

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healthcare personnel, and she was placed into the general population of DCCF. Dkt. 17,
at 21.
At 9:51 a.m. on Saturday, May 12, 2012, DCCF personnel found Hammers
unresponsive and bloodied in her cell. Dkt. 17, at 22. She was transported by ambulance
to Lawrence Memorial Hospital, where medical personnel pronounced her dead at
10:46 a.m. Cause of death was attributed to seizure activity related to acute ethanol
withdrawal. Dkt. 17, at 22.
The administrator of Hammers’s estate, Joseph M. Harvey, filed this case on
behalf of the estate and of Hammers’s three surviving children. Dkt. 17, at 1. All
plaintiffs are domiciled in Douglas County, Kansas. Dkt. 17, at 4. The named defendants
are: the Board of County Commissioners of Douglas County, Kansas, in its corporate
capacity; Mike Gaughan, Nancy Thellman, and Jim Flory, the three commissioners of
the Douglas County Board, in their official capacities; Craig Weinaug, County
Administrator of Douglas County, Kansas, in his official and individual capacities;
Kenneth M. McGovern, Sheriff of Douglas County, Kansas, in his official and individual
capacities; Kenneth L. Massey and Steve Hornberger, Undersheriffs of the Sheriff’s
Office of Douglas County, Kansas, in their official and individual capacities; Troy
Miller, an officer of the Sheriff’s Office of Douglas County, Kansas, in his official and
individual capacities; Dennis E. Sale, D.O., L.L.C.; Dennis E. Sale, D.O., in his individual
capacity and representative capacity as managing member of Dennis E. Sale, D.O.,
L.L.C.; Douglas County Visiting Nurses Association, Inc. (“VNA”); Judith A. Bellome,
Chief Executive Officer of VNA, in her individual and representative capacities;
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Angelique Lower, Chief Financial Officer of VNA, in her individual and representative
capacities; and Eric Huerter, M.D., acting Medical Director of VNA, in his individual
and representative capacities. Dkt. 17, at 5-7. All defendants were domiciled at all
relevant times in Douglas County, Kansas. Dkt. 17, at 5-7. All defendants were, at all
relevant times, involved in the administration or operations of DCCF and its health care
practices regarding detainees.
Plaintiffs filed a five-count complaint on April 21, 2014, followed by a five-count
amended complaint on June 27, 2014. Dkts. 1; 17. Count I of the amended complaint
alleges a violation of Eighth Amendment rights against all defendants for deliberate
indifference to Hammers’s medical needs and failure to provide medical care and
treatment. Dkt. 17, at 25-26. Plaintiffs allege that DCCF medical policies and procedures
failed to adequately screen incoming prisoners for alcohol withdrawal risk, evaluate
prisoners “who screen positive for alcohol risk,” and did not provide adequate clinical
intervention and detoxification for prisoners who are at risk for or are experiencing
alcohol withdrawal. Dkt. 17, at 27.
Count II an Eighth Amendment violation for failure to train or inadequate
training against the Board of Douglas County Commissioners, Gaughan, Thellman,
Flory, Weinaug, McGovern, Massey, Hornberger, Sale, L.L.C., Sale, VNA, Bellome,
Lower, and Huerter. Dkt. 17, at 34. The claims in Count II relate to conduct alleged in
Count I.
Count III alleges another Eighth Amendment violation, i.e., for failure to
supervise or inadequate supervision, against the Board of Douglas County
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Commissioners, Gaughan, Thellman, Flory, Weinaug, Douglas County Sheriff’s Office,
McGovern, Massey, Hornberber, Sale, L.L.C., Sale, VNA, Bellome, Lower, and Huerter.
Dkt. 17, at 41. The claims in Count III relate to conduct alleged in Count I.
Count IV alleges Wrongful Death, pursuant to K.S.A. § 60-1902, against the
Board of Douglas County Commissioners, Gaughan, Thellman, Flory, Weinaug,
McGovern, Massey, Hornberger, and Miller for their conduct related to Count I. Dkt.
17, at 48. Count V alleges Wrongful Death, pursuant to K.S.A. § 60-1902, against Sale,
L.L.C., Sale, VNA, Bellome, Lower, and Huerter for their conduct related to Count I.
Dkt. 17, at 55.
Defendants Douglas County, Kansas Board of Commissioners, Gaughan,
Thellman, Flory, Weinaug, Massey, McGovern, Hornberger, and Miller filed this
Motion to Dismiss on July 11, 2014. Dkt. 18.
II. Analysis
A. Dismissal of Counts I, II, and III
1. Rule 8 Pleading Standard
Under Federal Rule of Civil Procedure 8, a complaint must contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). Each allegation within the complaint “must be simple, concise, and direct.”
Fed. R. Civ. P. 8(d)(1). “The complaint must give the defendant adequate notice of what
the plaintiff’s claim is and the grounds of that claim.” Swierkiewicz v. Sorema N.A., 534
U.S. 506, 512 (2002). The complaint must contain more than “labels and conclusions” or
a “formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v.
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Twombly, 550 U.S. 544, 555 (2007). Detailed factual allegations are not required, but the
complaint must state “sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations
and quotations omitted). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Igbal, 556 U.S. at 678 (clarifying and affirming
Twombly's probability standard). The allegations must be sufficient to “raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555. Where a complaint fails to
sufficiently plead a plausible claim to relief, the complaint may be dismissed. Fed. R.
Civ. P. 12(b)(6).
2. § 1983 Actions for Eighth Amendment Violations
Individuals deprived of constitutional rights by persons acting under the color of
state law may seek relief though civil action under 42 U.S.C. § 1983. 1983 does not itself
provide a substantive right, but is a vehicle for “vindicating federal rights elsewhere
conferred.” Graham v. Connor, 490 U.S. 386, 394 (1989). “To state a valid claim for
deprivation of a constitutional right under § 1983 a plaintiff must allege that the
defendants acted under color of state law to deprive him of a constitutional right.”
Norhtington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). When evaluating a §1983
claim, the court must first identify “which constitutional right is alleged to have been
infringed and then judge the validity of the claim ‘by reference to the specific standard
which governs that right . . . .’” Id. (quoting Graham, 490 U.S. at 394). Here, plaintiff
alleges an infringement of Eighth Amendment constitutional protections.
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The Eight Amendment prohibits “cruel and unusual punishments.” It requires
jail officials “to 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.” Barney v. Pulsipher, 143 F.3d
1299, 1310 (10th Cir. 1998). “[A] prison official’s ‘deliberate indifference’ to a substantial
risk of serious harm” implicates the Eighth Amendment. Farmer v. Brennan, 511 U.S.
825, 828 (1994).
However, “pretrial detainees are protected under the Due Process Clause rather
than the Eighth Amendment . . . .” Olsen v. Layton Hills Mall, 312 F.3d 1304, 1315 (10th
Cir. 2002); accord Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998). “[T]he due process
rights of a pretrial detainee are at least as great as the Eighth Amendment protections
available to a convicted prisoner.” County of Sacramento v. Lewis, 423 U.S. 833, 849-50
(1998). The Eighth Amendment “deliberate indifference” standard is therefore also
“enough to satisfy the fault requirement for due process claims based on the medical
needs of someone jailed while awaiting trial.” Id. Although the fault standard may be
the same or similar for an Eighth Amendment violation as for a Due Process violation, it
is not the Eighth Amendment itself that provides any protection to a pretrial detainee.
The amended complaint pleads that Hammers was a pretrial detainee. Taken as
true, the Due Process Clause of the Fourteenth Amendment, not the Eighth
Amendment, is the source of her protections. The complaint and the amended
complaint both clearly base claims for relief on the Eighth Amendment in Counts I, II,
and III, but the amended complaint does not assert Due Process rights. The original
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complaint mentions Due Process rights in one sentence, but not within any count (Dkt.
1, at 3), but it does not appear in the amended complaint. See Dkt. 17, at 3. Plaintiffs
have plainly stated claims invoking the Eighth Amendment, not the Due Process
Clause.
The Eighth Amendment offers no relief because Hammers was a pretrial
detainee. A plaintiff must plead the proper constitutional provision to state a valid
claim under § 1983. See Graham, 490 U.S. at 394; Chavez v. Board of Cnty. Comm’rs of Sierra
Cnty., 899 F. Supp. 2d 1163, 1185 (D.N.M.) (citing Anton v. Guarini, 2010 WL 5258219, at
*4-5 (E.D. Pa. Dec. 22, 2010) and Northington, 973 F.2d at 1523 (citing Graham, 490 U.S. at
394)). Counts I, II, and III plead an improper constitutional provision and therefore fail
to state a claim on which relief can be granted. The court dismisses Counts I, II, and III.
B. Dismissal of Counts IV and V for Lack of Subject Matter Jurisdiction
“The district courts of the United States, as we have said many times, are courts
of limited jurisdiction. They possess only that power authorized by Constitution and
statute.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005) (internal
quotation and citation omitted). The two statutory bases for federal subject matter
jurisdiction are federal question jurisdiction under 28 U.S.C. § 1331, and diversity
jurisdiction under 28 U.S.C. § 1332. Federal courts have original subject matter
jurisdiction over these matters. 28 U.S.C. §§ 1331, 1332.
Federal question jurisdiction exists for claims “arising under the Constitution,
laws, or treaties of the United States.” 28 U.S.C. § 1331. “A case arises under federal law
if its well pleaded complaint establishes either that federal law creates the cause of
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action or that the plaintiff’s right to relief necessarily depends on resolution of a
substantial question of federal law.” Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir.
1994) (internal quotation and citation omitted).
Diversity jurisdiction exists where parties are citizens of different states and the
amount in controversy exceeds $75,000. Diversity jurisdiction under § 1332 requires
complete diversity of parties; no defendant can be from the same state as any plaintiff.
Exxon Mobil Corp., 545 U.S. at 553.
Under 28 U.S.C. § 1367, federal courts may exercise supplemental jurisdiction
over any claims which “form part of the same case or controversy” as those within its
original jurisdiction. 28 U.S.C. § 1367(a). The district court may decline to exercise
supplemental jurisdiction over state law claims if it has dismissed all claims over which
it exercised original subject matter jurisdiction. 28 U.S.C. § 1367(c). Where “federal
claims are dismissed before trial, leaving only issues of state law, the federal court
should decline the exercise of [supplemental] jurisdiction by dismissing the case
without prejudice.” Brooks v. Gaenzle, 614 F.3d 1213, 1229 (10th Cir. 2010) (internal
quotation and citation omitted). Supplemental jurisdiction is generally declined in such
instances “because ‘[n]otions of comity and federalism demand that a state court try its
own lawsuits, absent compelling reasons to the contrary.’” Id. at 1230 (quoting Ball v.
Renner, 54 F.3d 664, 669 (10th Cir. 1995)).
Counts IV and V of the complaint contain only state law claims for wrongful
death under K.S.A. § 60-1902; they are not subject to federal question jurisdiction. The
parties to this case are from Douglas County, Kansas, and plaintiffs have not pled
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damages exceeding $75,000. Because they fail to meet the complete diversity and
amount in controversy requirements of § 1332, both necessary for diversity jurisdiction,
the court can only exercise subject matter jurisdiction over Counts IV and V by
supplemental jurisdiction, which is dependent on the federal claims of Counts I, II, and
III. The court’s dismissal of all federal claims from the complaint requires that it also
dismiss Counts IV and V for lack of subject matter jurisdiction. The court therefore
dismisses Counts IV and V without prejudice.
IT IS ACCORDINGLY ORDERED this 21st day of October, 2014, that defendants’
Motion to Dismiss (Dkt. 18) is GRANTED and plaintiffs’ amended complaint (Dkt. 17)
is DISMISSED without prejudice.

s/ J. Thomas Marten
J. THOMAS MARTEN,
CHIEF JUDGE

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