McCoy (ID 76894) v. Henderson et al

Filing 18

MEMORANDUM AND ORDER: This action is dismissed and all relief is denied without prejudice. Plaintiff's motion 12 to appoint counsel and motion 17 for status hearing are denied. Signed by Senior District Judge Sam A. Crow on 3/6/2013. (Mailed to pro se party DeRon McCoy by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DERON McCOY,
Plaintiff,
v.

CASE NO.

12-3051-SAC

RANDY HENDERSON,
et al.,
Defendants.
MEMORANDUM AND ORDER
This action was filed pursuant to 42 U.S.C. § 1983 by an
inmate currently confined at the Lansing Correctional Facility,
Lansing, Kansas.

The court screened the original complaint and

issued an order requiring plaintiff to file an Amended Complaint
that cured the deficiencies discussed in the order.

This matter

is now before the court upon plaintiff’s First Amended Complaint
(Doc. 13).

The court is required by statute to screen the

Amended Complaint and to dismiss the complaint or any portion
thereof

that

is

frivolous,

fails

to

state

a

claim

on

which

relief may be granted, or seeks relief from a defendant immune
from such relief.

28 U.S.C. § 1915A(a) and (b); 28 U.S.C. §

1915(e)(2)(B).

ALLEGATIONS AND CLAIMS
Plaintiff’s claims arose during his pretrial detention
1

at the Reno County Jail (RCJ), which was from March 22, 2011, to
March 6, 2012.

Plaintiff names as defendants the following jail

employees: Captain Larry Dyer, Deputy Sergeant Donald Beiard,
Deputy Annie Bearg, Deputy Daniel McKuey, Deputy Megan Hiedari,
and Dietician Debbie Gibson.
As Count I of his Amended Complaint, Mr. McCoy claims
that

his

First

Amendment

different sets of facts.

rights

were

violated

under

two

Under the first set of facts, he

claims that his right to practice his religion as well as his
rights under the Religious Land Use and Institutionalized Person
Act (RLUIPA) were violated when defendant Gibson and defendant
Dyer

improperly

denied

him

following facts in support.

Kosher

meals.

He

alleges

the

On October 29, 2011, he requested

Kosher meals, and his request was granted.

On October 30 and 31

and November 1, 2011, defendant Gibson sent him meals that “had
non-Kosher meats or food items” and “were not kosherly prepared”
and ordered him “to eat the meal provided or not at all.”

On

November 2 plaintiff submitted a grievance on the matter, and
defendant Dyer responded that he was “taking (McCoy) off Kosher
meals” because he had ordered non-Kosher food items from the
commissary in June 2011.
Under a different set of facts, plaintiff claims that
his First Amendment rights were violated in that his incoming
mail was withheld by defendant Hiedari.

2

In support, he alleges

as follows.
incoming

On April 15, April 23, and October 6, 2011, his

mail

was

neither

given

to

him

nor

returned

to

its

sender, he was not notified of its withholding, and he was not
provided a written reason for the withholding or informed as to
his mail’s disposition.1
As
rights

Count

were

II,

plaintiff

violated

circumstances.

claims

based

on

two

his

Eighth

separate

Amendment
sets

of

First, he claims that “defendants” subjected him

to inhumane conditions in his cell at the RCJ.

As facts in

support, he alleges as follows.

He was placed in a cramped 9 x

13 cell with 3 other inmates.

The cell had no natural light,

had black mold on the ceiling, and he was not given cleaner for
the mold or recreation outside his cell.

On March 30, 2011 the

toilets and sinks backed up and spewed feces into his cell, he
was unable to reach and clean a catwalk area adjacent to the
cell where feces remained and smelled, and back-ups recurred
about

every

week

thereafter.

He

was

exposed

to

100-degree

temperatures in May through August 2011 and temperatures in the
lower 50’s in October 2011 through February 2012. His cell had
no

fan,

ventilation

or

heating

apparatus;

and

he

was

not

provided adequate clothing or bedding for the cold.
As his second Eighth Amendment claim, plaintiff alleges

1

In his original complaint, Mr. McCoy alleged that this mail was placed
in his inmate property without notification and that he only became aware of

3

that defendant Bieard and defendant Bearg denied him access to
medical treatment by a nurse or doctor for injuries he sustained
in an assault by another inmate.

In support, he alleges that on

February 17, 2012, he was placed in a segregation cell and given
an

ice

pack

and

over-the-counter

medication;

and

that

on

February 22, 2012, he was taken to a medical clinic, diagnosed
with a dislocated finger, and provided x-rays and treatment.
As Count III, plaintiff claims that he was denied due
process.

As factual support, he alleges that on May 23, 2011,

defendant McKuey placed him in disciplinary segregation for 30
days without a report, hearing, or reason, and sanctioned him by
taking his commissary items worth $20 and personal mail he had
retained in his cell.
Plaintiff

seeks

compensatory

and

punitive

damages

as

well as costs.

DISCUSSION
I. DISMISSAL OF DEFENDANTS NOT NAMED IN AMENDED COMPLAINT
Plaintiff

named

several

defendants

in

his

original

complaint that are not named in his Amended Complaint: Randy
Henderson, Sheldon Stewart, Linda McMahon, Daniel Nuest, Josh
Scott, and Anthony Carder.

This action is dismissed as against

all these defendants.

4

II. COMPENSATORY DAMAGES CLAIM BARRED BY 42 U.S.C. 1997e(e)
In his original complaint, Mr. McCoy sought injunctive
relief as well as damages.

His claim for injunctive relief

became moot upon his subsequent transfer out of the RCJ.

In his

Amended Complaint, he seeks compensatory and punitive damages
only.

Federal law prohibits prisoners from bringing federal

actions

“for

mental

or

emotional

injury

suffered

custody without a prior showing of physical injury.”
§ 1997e(e).

while

in

42 U.S.C.

Section 1997e(e) . . . provides in pertinent part:

“No Federal civil action may be brought by a prisoner confined
in a jail, prison, or other correctional facility, for mental or
emotional

injury

suffered

showing of physical injury.”

while
Id.

in

custody

without

a

prior

In Searles v. Van Bebber, 251

F.3d 869 (10th Cir. 2001), cert. denied, 536 U.S. 904 (2002),
the

Tenth

Circuit

specifically

held

that

the

“Limitation

on

Recovery” set forth in § 1997e(e) applied to a First Amendment
claim that prison officials denied the plaintiff a Kosher diet
and to claims for actual or compensatory damages.

Id. at 879,

881; see also Sisney v. Reisch, 674 F.3d 839, 843 (8th Cir.),
cert. denied, 133 S.Ct. 359 (2012); Nasious v. Robinson, 2010 WL
1268135, *8, n.6 (D.Colo. Feb. 17, 2010, unpublished), aff’d in
part

dismissed

in

part,

396

Fed.Appx.

526

(10th

Cir.

2010)(unpublished).2

2

Unpublished opinions are not cited herein as binding precedent, but for

5

This

limitation

on

recovery

applies

to

claims

under

RLUIPA as well under the First Amendment free exercise clause.
Sossaman v. Texas, ___U.S.___, 131 S.Ct. 1651 (2011)(States did
not waive their Eleventh Amendment sovereign immunity to suits
for money damages under the RLUIPA, and as a consequence money
damages are not available as a private remedy for violations of
RLUIPA

or

against

defendants

in

their

official

capacities.);

Stewart v. Beach, 701 F.3d 1322, 1333-35 (10th Cir. 2012)(There
is no cause of action under RLUIPA against defendants in their
individual capacities).
With

the

possible

exception

of

plaintiff’s

denial

of

medical treatment claim, which is deficient in other respects,
Mr. McCoy has not described any physical injury that was caused
by

the

alleged

deprivations

of

his

constitutional

rights.

Murray v. Edwards County Sheriff’s Dept., 248 Fed.Appx. 993, 995
(10th

Cir.

2007)(unpublished)

cert.

denied,

553

U.S.

1035

(2008)(affirming dismissal under § 1997e(e) of similar claims
regarding

jail

injury).

conditions

The

court

without

concludes

that

allegation

of

plaintiff’s

physical
claim

for

compensatory damages is barred by § 1997e(e).

III.

FAILURE

TO

STATE

FACTS

TO

SUPPORT

CLAIM

DAMAGES
persuasive value.

See Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.

6

FOR

PUNITIVE

Plaintiff also requests relief in the form of punitive
damages.

However, punitive damages are awarded under § 1983

“only when ‘the defendant’s conduct is shown to be motivated by
evil motive or intent, or when it involves reckless or callous
indifference

to

the

federally

protected

rights

of

others.’”

Jolivet v. Deland, 966 F.2d 573, 577 (10th Cir. 1992)(quoting
Smith v. Wade, 461 U.S. 30, 56 (1983)); Ciempa v. Jones, 745
F.Supp.2d 1171, 1201 (N.D. Okla. 2010), aff’d, 477 Fed.Appx. 508
(10th Cir. 2012); Nasious, 2010 WL 1268135 at *8, n.6 (citations
omitted));

see also Patel v. Wooten, 264

Fed.Appx. 755, 760

(10th Cir. 2008)(unpublished)(In the First Amendment context,
prison officials’ actions did not “rise to the level of evil
intent or reckless or callous indifference to sustain a jury
award of punitive damages.”)).

Here, Mr. McCoy describes no act

on the part of either person alleged to have participated in the
denial of his religious meals indicating that he or she acted
with

evil

motive

or

reckless

federally protected rights.

indifference

to

plaintiff’s

Accordingly, plaintiff’s claim for

punitive damages is dismissed for failure to state sufficient
facts upon which relief may be granted.

IV. FAILURE TO STATE FACTS TO SUPPORT A FEDERAL CONSTITUTIONAL
VIOLATION
The court further finds that plaintiff has failed to

7

present additional facts in his Amended Complaint sufficient to
support

most,

if

constitutional

not

all,

of

violations.

The

his

claims

court

of

briefly

federal
discusses

plaintiff’s claims and the deficiencies that were not cured.

A. Count I – Denial of First Amendment Free-Exercise
Rights
Plaintiff
providing

the

cured

dates

one

on

deficiency

which

he

was

in

this

denied

claim

kosher

by

meals.

However, he does not refute that he purchased non-kosher items
from the commissary and his authority to receive kosher meals
was revoked on this basis.

He argues in his Amended Complaint

that the purchases were too remote from the revocation of his
privileges.

He

does

not

support

this

argument

with

facts

regarding his initial request for kosher meals or otherwise show
that this administrative decision was unfounded or improperly
motivated.

In any event, as noted, plaintiff no longer can or

does seek injunctive relief for kosher meals at the jail, and
his claims for damages based upon these facts are barred and
without

factual

plausible

support.

constitutional

Thus,
violation

even

if

on

the

the

court

facts

alleged,

McCoy would not be entitled to the requested relief.

B. Count I – First Amendment Withholding of Mail

8

found

a

Mr.

Plaintiff was informed in the court’s prior screening
order that his claim that his mail was withheld on three days
was not supported by sufficient facts to show a constitutional
violation.

Isolated incidents of mail interference “without any

evidence of improper motive or resulting interference with . . .
the right to counsel or access to the courts, do[] not give rise
to a constitutional violation.”
940, 944 (10th Cir. 1990).

Smith v. Maschner, 899 F.2d

In his Amended Complaint, he again

fails to reveal the contents of this mail.

He also fails to

allege facts showing improper motive, and fails to describe any
resulting harm of a constitutional magnitude such as a denial of
access

to

the

courts.

Consequently,

the

court

finds

that

plaintiff’s allegations regarding the withholding of his mail
remain insufficient to state a plausible claim under § 1983.

C. Count II – Inhumane Cell Conditions
Even though plaintiff provided some additional facts in
his Amended Complaint to

support his claim of inhumane jail

conditions, the court finds that he still fails to allege enough
facts to state a plausible Eight Amendment violation.

Plaintiff

was notified in the court’s screening order “that, to state a
claim

in

federal

court,

a

complaint

must

explain

what

each

defendant did to [the pro se plaintiff]; when the defendant did
it;

(and)

how

the

defendant’s

9

action

harmed

him

.

.

.

.”

Nasious

v.

Two

Unknown

B.I.C.E.

Agents,

at

Arapahoe

Justice Center, 492 F.3d 1158, 1163 (10th Cir. 2007).

County
He was

also notified that an essential element of a civil rights claim
against

an

individual

is

that

person’s

direct

personal

participation in the acts or inactions upon which the complaint
is

based.

Despite

these

holdings,

plaintiff

fails

in

his

Amended Complaint to describe the acts of each named defendant
showing that he or she caused the alleged jail conditions.

Mr.

McCoy’s general allegation that “defendants” subjected him to
the

challenged

personal

conditions

participation

on

is

not

the

part

sufficient
of

each

to

demonstrate

defendant

or

to

provide adequate notice of his claims against each defendant.
In addition, plaintiff has again failed to allege the
crucial element of the actual duration of the harsher conditions
like the presence of odor from fecal matter and his exposure to
extreme temperatures.

He provides a general time frame but not

the duration of each condition.

His allegation that no vent or

heating apparatus was located within his cell does not establish
that this space was inadequately heated.
Mr.

McCoy=s

own

allegations

indicated

As previously noted,
that

he

was

provided

clothing, a blanket, and hot showers, and that a heating problem
was solved.

Triple-celling, standing alone, does not rise to

the level of a constitutional violation; and plaintiff has not
alleged that he was unable to exercise in his cell.

10

Plaintiff’s

amended allegations do not show that any named jail official
failed

to

shelter.”

provide

him

with

“adequate

food,

clothing,

or

Farmer v. Brennan, 511 U.S. 825, 832 (1994)(quoting

Hudson v. Palmer, 468 U.S. 517, 526-527 (1984)).
fails to show that conditions

at the RCJ

Thus, he still

were “sufficiently

serious so as to deprive him of the minimal civilized measure of
life’s necessities” or that they presented a “substantial risk”
of harm to him.

Wilson v. Seiter, 501 U.S. 294, 298 (1991).

Furthermore, plaintiff has alleged no facts whatsoever to
satisfy the objective component of his conditions claim.

He

does not allege facts showing that any defendant knew of and
disregarded an excessive risk to plaintiff’s personal health or
safety.

Aston

v.

Cunningham,

216

F.3d

(10th

1086

Cir.

2000)(Table).
Finally,
alleged

no

the

facts

court

showing

previously
he

was

noted

harmed

that
the

by

conditions, and he has not cured this deficiency.
Zavaras,

94

Corrections

F.3d
Corp.

1399,
of

1405B06

America,

(10th
134

F.3d

1998)(unpublished)(upholding

summary

failed

establishing

to

present

serious harm”

evidence

Cir.

that

from the alleged deprivation).

challenged

See Penrod v.

1996);

383,

judgment

plaintiff

*2

where
she

Marsh

(10th

v.

Cir.

“plaintiff
suffered

a

In any event,

plaintiff is no longer subject to conditions at the RCJ, his
claim for damages based on these conditions is barred, and he

11

has stated no facts to support his claim for punitive damages.

D. Count II – Denial of Medical Attention
In

the

screening

order,

the

court

notified

plaintiff

that a “prisoner who merely disagrees with a diagnosis or a
prescribed course of treatment does not state a constitutional
violation.”
803,

811

Perkins v. Kansas Dept. of Corrections, 165 F.3d
(10th

Cir.

1999).

The

court

then

found

that

plaintiff’s bald allegation that he was denied medical attention
was refuted by his own factual allegations that he was provided
pain relievers and an ice pack by Nurse McMahon” and that his
claim “appeared to be nothing more than his disagreement with
the medical provider as to what medical care was necessary.”
Plaintiff’s allegations in his Amended Complaint, rather than
curing these deficiencies, confirm that this claim amounts to
nothing more than his mere disagreement with treatment provided
at the jail and a four-day delay in treatment for a dislocated
finger.

Plaintiff has not alleged substantial harm from the

delay or any

additional facts sufficient to state an Eighth

Amendment claim of denial of medical treatment.

E. Count III – Denial of Due Process
With regard to this claim, plaintiff was informed in the
screening order that that the Constitution does not require a

12

hearing

before

a

jail

inmate

is

transferred

to

a

more

restrictive area or sanctions are imposed that do not include
forfeiture of good time.

He has not responded with additional

facts in his Amended Complaint that are sufficient to state a
federal

due

forfeited.

process

violation,

such

as

that

good

time

was

Plaintiff’s allegations that his commissary items

were taken are likewise insufficient to state a claim under §
1983.

“[A]n unauthorized intentional deprivation of property”

by jail officials does not violate the Due Process Clause “if a
meaningful post deprivation remedy for the loss is available.”
Hudson v. Palmer, 468 U.S. 517, 6533 (1984).
allegations

indicate

an

administrative

Plaintiff’s own

remedy

process

was

available at the jail, and Kansas statutes provide tort remedies
for

loss

of

property.

For

these

reasons,

plaintiff’s

allegations fail to state a federal due process violation.

V.

IMPROPER JOINDER OF CLAIMS AND PARTIES
In

screening

the

original

complaint,

the

court

repeatedly pointed out that not all defendants were alleged to
have

been

plaintiff’s

involved

in

multiple

circumstances.

each

claims

of

plaintiff’s

appeared

to

claims

arise

from

and

that

unrelated

Plaintiff was reminded that he was required to

adhere to the Federal Rules of Civil Procedure regarding proper
joinder

of

claims

and

parties.

13

Despite

these

admonitions,

plaintiff’s
unrelated

Amended
claims

Complaint

that

different defendants.
the several

are

still

forth
alleged

the
to

same
have

array

of

involved

Mr. McCoy has made no effort to show that

parties and

properly joined.

sets

claims in his Amended Complaint

are

Nor has he omitted improperly joined claims or

parties from his Amended Complaint.
throughout

his

complaint.

litigating

improperly-joined

Thus, this defect remains

Plaintiff

is

claims.

not

prevented

However,

in

from

order

to

pursue claims that may not be properly joined, he must present
them in separately-filed lawsuits.
In

sum,

the

court

concludes

that

plaintiff

is

not

entitled to the damages he seeks, and that plaintiff has failed
to

allege

sufficient

facts

to

state

a

claim

of

federal

constitutional violation.
The court has considered plaintiff’s Motion to Appoint
Counsel (Doc. 12).

There is no right to appointment of counsel

in a civil action, this action is not shown to have merit, and
plaintiff is capable of presenting his claims.

In any event,

this motion is now moot.
The court has considered plaintiff’s Motion for Status
Hearing (Doc. 17) and finds that it is moot due to this order of
dismissal.
IT IS THEREFORE BY THE COURT ORDERED that this action is
dismissed

and

all

relief

is

denied,

14

without

prejudice,

on

account

of

support

a

plaintiff’s
federal

failure

to

constitutional

state

sufficient

violation

against

facts
the

to

named

defendants, failure to state a constitutional claim of denial of
medical treatment, failure to allege physical injury to support
claim a for compensatory damages, failure to allege facts to
support a claim for punitive damages, and due to his failure to
cure the improper joinder of numerous claims and parties.
IT IS FURTHER ORDERED that plaintiff’s Motion to Appoint
Counsel (Doc. 12) and Motion for Status Hearing (Doc. 17) are
denied.
IT IS SO ORDERED.
Dated this 6th day of March, 2013, at Topeka, Kansas.

s/Sam A. Crow
U. S. Senior District Judge

15