Hodge (ID 6008057) v. Topeka Correctional Facility et al

Filing 5

MEMORANDUM AND ORDER ENTERED: Plaintiff's amended complaint 4 is construed as incorporating the original complaint. Plaintiff is granted thirty (30) days in which to submit to the court an initial partial filing fee of $52.00. Any obje ction to this order must be filed on or before the date payment is due. The failure to pay the fees as required herein may result in dismissal of this action without prejudice. Within the same thirty-day period, plaintiff is required to cure the de ficiencies in her amended complaint. Plaintiff's motion 3 for appointment of counsel is denied without prejudice. Signed by Senior District Judge Sam A. Crow on 11/16/2012. (Mailed to pro se party Nathasha Genene Hodge by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

NATASHA GENENE HODGE,
Plaintiff,
v.

CASE NO.

12-3228-SAC

TOPEKA CORRECTIONAL
FACILITY, et al.,
Defendants.
MEMORANDUM AND ORDER
This pro se civil complaint was filed pursuant to 42 U.S.C. §
1983 by an inmate of the Topeka Correctional Facility, Topeka, Kansas
(TCF).

Plaintiff sues the TCF; the Kansas Department of Corrections

(KDOC); and Douglas W. Burris, Secretary of Corrections Designee,
KDOC.

She also sues several persons employed at the TCF: Deb Mayo,

Counselor; Linda Hull-Viera, Unit Manager; Hope Cooper, Warden;
Colene Fischli, Deputy Warden; Andrea Ballhagen, Facility Services
Administrator; and Allen Morgan, Head of EAI.

Having reviewed all

materials filed, the court assesses an initial partial filing fee.
In addition, plaintiff is required to cure the deficiencies found
upon screening and discussed herein or she will suffer dismissal of
part of all of her complaint.

I.

ASSESSMENT OF INITIAL PARTIAL FILING FEE
The statutory fee for filing a civil rights complaint is
1

$350.00.

Plaintiff has submitted a motion to proceed without

prepayment of fees and attached an Inmate Account Statement in
support as statutorily mandated.

Plaintiff is reminded that under

28 U.S.C. § 1915(b)(1), a plaintiff granted such leave is not relieved
of the obligation to pay the full fee for filing a civil action.
Instead, it merely permits an inmate to proceed without prepayment
of the full fee, and to pay the filing fee over time through payments
deducted automatically from her or his inmate trust fund account as
authorized by § 1915(b)(2).

Furthermore, § 1915(b)(1), requires the

court to assess an initial partial filing fee of twenty percent of
the greater of the average monthly deposit or average monthly balance
in the prisoner’s account for the six months immediately preceding
the date of filing of a civil action.

Having examined the records

of plaintiff’s account, the court finds the average monthly deposit
during the relevant period was $262.24, and the average monthly
balance was $ 156.18.

The court therefore assesses an initial

partial filing fee of $52.00, twenty percent of the average monthly
deposit, rounded to the lower half dollar.

Plaintiff must pay this

initial partial filing fee before this action may proceed further,
and will be given time to submit the fee to the court.

Failure to

submit the initial fee in the time allotted may result in dismissal
of this action without further notice.
Plaintiff asks in this motion to have the filing fee paid from
her Forced Savings Account.

This request is denied because
2

plaintiff provides no factual basis or legal authority that would
allow this court to order that the filing fee in this case be paid
from this particular account.

II.

AMENDED COMPLAINT (DOC. 1 & DOC. 4)
Plaintiff has attached grievances and administrative responses

to her complaint.
complaint.

These attachments are considered as part of the

In addition, plaintiff has filed a single-page document

entitled “Amended Complaint” (Doc. 4).

A plaintiff may amend her

or his complaint once without leave of court.

However, a plaintiff

does not properly amend a complaint by filing a pleading that only
sets forth those claims or parties she wants to add to the original
complaint.

Instead, in order to properly add claims or parties, a

plaintiff must comply with Rule 15 of the Federal Rules of Civil
Procedure (Fed.R.Civ.P.).

Under Rule 15, the plaintiff must prepare

and submit a complete Amended Complaint.

An “Amended Complaint” is

not automatically combined with the original complaint.

Rather, an

Amended Complaint completely supersedes the original complaint.
Consequently, in the Amended Complaint plaintiff must name all
defendants and set forth all claims that the plaintiff intends to
pursue in the action including any that are to be retained from the
original complaint.

Any claims not actually set forth in an Amended

Complaint are no longer before the court.
The “Amended Complaint” (Doc. 4) filed in this case is simple
3

in that plaintiff seeks to add several persons as defendants and to
sue all defendants in their individual and official capacities.

Her

clear intent is for the Amended Complaint to serve as an addendum
to rather than a replacement for the original complaint.

This court

ordinarily requires the filing of a complete new Amended Complaint
because problems can arise from having two documents that must be
read,

served,

and

answered

as

the

complaint.

Under

the

circumstances of this case, the court decides instead to liberally
construe plaintiff’s “Amended Complaint” (Doc. 4) to incorporate the
original complaint (Doc. 1).

However, plaintiff is forewarned that

if she hereafter seeks to submit a Second Amended Complaint she must
fully comply with Rule 15 by filing a Motion to Amend with a complete
Second Amended Complaint on forms attached.

III.

FACTUAL ALLEGATIONS AND CLAIMS
Plaintiff submitted her original complaint upon court-approved

forms, but she did not properly utilize the forms.

As Count I,

plaintiff claims violation of her right to be free of abuse and
harassment.

As Count II, she claims violation of her right to be

free from humiliation by prison staff.

As Count III plaintiff claims

a violation of her “right to not be viewed on camera monitors without
(her knowledge) and/or recorded visually in the reasonable privacy
of (her) room.”

Plaintiff states no facts in support of these three

counts in the spaces provided for supporting facts.
4

Instead, she

simply writes in those spaces: “Please see attached.”

Attached to

her complaint are numerous exhibits, none of which is designated as
the facts alleged in support of a particular ground in the complaint.
Consequently, the court has parsed plaintiff’s attachments in search
of the supporting facts.
The first attachment to plaintiff’s original complaint (Doc.
1) contains no facts to support her claims.

The second attachment

is a single-page statement by plaintiff that is entitled “Sexual
harassment/lewd acts Staff negligence.”

While this attachment

makes no reference to any of the three counts, the allegations therein
appear to be facts in support of plaintiff’s Count I claim of
harassment and lewd acts.
administrative

responses

After this statement, grievances and
dated

August

and

September

2012

attached that are relevant to plaintiff’s harassment claim.

are

Next,

plaintiff includes her summaries of two general orders and two IMPPs,
which she has cited as legal support for her claims.
includes

another

single-page

statement

Then, plaintiff

entitled

“Intrusive

Cameras,” in which she apparently alleges the facts in support of
her Count II and Count III claims of humiliation and violation of
privacy.
Plaintiff’s allegations and exhibits clearly complain about two
distinct factual scenarios.

First, plaintiff alleges that another

inmate subjected her to lewd acts and sexual harassment and claims
that defendants failed to prevent the inmate’s continued misconduct.
5

Second, plaintiff alleges that “intrusive cameras” in her cell
allowed her to be viewed on a security monitor as she was dressing
and undressing, and claims this was inappropriate and humiliating.
The court construes the Amended Complaint as raising these two
grounds.
In support of her first claim, plaintiff alleges the following.
On June 18, 2012, Ms. Hodge reported to her counselor defendant Deb
Mayo that she was being exposed to unwanted touching and frequent
masturbation in her presence by her bunkmate LD.
to no avail.

She told LD to stop

She reported LD’s continued behavior to Mayo and to

defendant Unit Team Manager Linda Hull-Viera.
viewed it as “simple misconduct.”

Mayo and Hull-Viera

In her attached exhibits “Inmate

Grievance Form” and “Appeal of Grievance to Secretary,” plaintiff
stated that on June 27 Mayo held a “conflict resolution meeting” in
plaintiff’s cell with the four cellmates present at which her
cellmates also reported having seen LD masturbate and “dig in” her
rectum.

Plaintiff requested a room change, but no action was taken.

Additional incidents occurred in July and were reported to Mayo, but
plaintiff was not separated from LD.
Plaintiff states that under “PREA” all reports of sexual
harassment, contact, or activity must be investigated, and “PREA
protocol” must be followed.

Hull-Viera told plaintiff that she had

not instituted a room reassignment because “she did not think the
‘unwanted touching’ was a big deal.”
6

Hull-Viera told defendant

Allen Morgan that “she did not feel this was a PREA situation.”
Hodge was upset and went to her Mental Health (MH) counselor.

Ms.

Mental

Health and medical staff handled plaintiff’s claims “as PREA from
the beginning.”
to “EAI.”

Her MH counselor immediately reported LD’s behavior

When medical staff learned of her situation, they called

Ms. Hodge in for a “PREA protocol exam” on July 11 or 12.
Filby was present and asked for her statement.

Officer

Her MH counselor’s

report was “dismissed by EAI” and never investigated.
interviewed Ms. Hodge on September 19, 2012.

The EAI

In her complaint,

plaintiff states that she was not moved out of the living unit with
LD until October 16, 2012, and then only because she threatened
violence against LD the next time LD touched her.

However, in her

exhibited grievance Ms. Hodge made the contrary statement that she
“was finally moved July 1.”
Plaintiff complains that “TCF staff” never took her claims
seriously and “repeatedly refused to remove” her, and that action
taken only after she had filed “Joint Committee claims” 1 was not
timely considering the seriousness of her claims.

She alleges that

defendants Fischli, Ballhagen, Morgan, and “Security Staff” were
“contacted

about

the

staff

negligence”

1

but

none

responded.

To the question in her complaint about other lawsuits based on the same facts,
plaintiff responds that she has filed two claims seeking monetary relief before
the “Joint Committee on Special Claims Against the State” that are still pending.
She describes the issues raised in those claims as “staff negligence in sexual
harassment/lewd acts complaints and “intrusive cameras” mounted for 2 years before
her grievance “got them corrected.”

7

Plaintiff exhibits the September 6, 2012 response of defendant Burris
to her grievance appeal stating that he forwarded her complaint to
the appropriate staff for review, which turned out to be Warden
Cooper.

Plaintiff also claims that she was “forced to risk (her)

good time, program, and custody” to obtain a room change.
The separate factual scenario underlying plaintiff’s second
claim is found in her attached statement entitled “Intrusive Cameras”
and the related grievance and response.

In the statement, plaintiff

alleges that on September 9, 2012, another inmate had witnessed a
male officer watching Ms. Hodge on a zoomed-in shot in her cell
putting on lotion and dressing after a shower.

She claims that

security cameras were placed in cells so that male guards could view
her and other unsuspecting inmates “on the monitor” getting dressed
and undressed and that “TCF” has been “aware of the intrusiveness
of certain cameras at J cellhouse” since they were installed.

She

alleges that discovering “that male officers have been able to see
(her) in various stages of undress” for the entire two years that
she has lived in J cellhouse is humiliating and demeaning.

Plaintiff

filed a grievance dated September 14, 2012, in which she complained
that “several security cameras in J cellhouse show female inmates
on the monitor as they get dressed and undressed inside their rooms”
and that she had been “videotaped while naked by a camera that’s only
supposed to show the north hallway and exit door.”

On September 21,

2012, Warden Cooper responded that the cameras were reviewed on
8

September 18, 2012, and corrective action was immediately taken in
that “blinders” were put on each camera to block out portions of
affected rooms.

Cooper also referred plaintiff to General Order

15-104, which provided that “Underclothing shall be worn at all
times,

except

when

in

restroom/shower

facilities”

and

“[u]nderclothing shall be covered by clothing, towel, robe, or by
other suitable means at all other times.”
Plaintiff seeks money damages for “sexual harassment/staff
negligence” and “intrusive camera violation.”

In her Amended

Complaint (Doc. 4) she baldly adds that she is “suing for punitive
damages and injunctive relief.”

IV.

SCREENING
Because Ms. Hodge is a prisoner, the court is required by statute

to screen her 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).

A court liberally construes a pro se complaint and applies “less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
litigant’s

“conclusory

allegations

Nevertheless, a pro se

without

supporting

factual

averments are insufficient to state a claim upon which relief can
be based.”

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
9

The court “will not supply additional factual allegations to round
out a plaintiff’s complaint or construct a legal theory on a
plaintiff=s behalf.”
(10th Cir. 1997).

Whitney v. New Mexico, 113 F.3d 1170, 1173-74

The court accepts all well-pleaded allegations

in the complaint as true.
Cir. 2006).

Anderson v. Blake, 469 F.3d 910, 913 (10th

Still, “when the allegations in a complaint, however

true, could not raise a claim of entitlement to relief,” dismissal
is appropriate.
(2007).

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558

To avoid dismissal, the complaint’s “factual allegations

must be enough to raise a right to relief above the speculative
level,” and contain “enough facts to state a claim to relief that
is plausible on its face.”

Id. at 555, 570.

Having screened all

materials filed under these standards, the court finds that the
complaint is subject to being dismissed for reasons that follow.

V.

IMPROPER DEFENDANTS
“To state a claim under § 1983, a plaintiff must allege the

violation of a right secured by the Constitution and laws of the
United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.”

West v.

Atkins, 487 U.S. 42, 48-49 (1988)(citations omitted); Northington
v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992).

The State of Kansas,

the KDOC, and the TCF are not proper defendants because none is a
“person”

subject

to

suit

for
10

money

damages

under

§

1983.

Furthermore, the State of Kansas and its agencies like the KDOC are
absolutely immune to suit for money damages under the Eleventh
Amendment.

VI.

IMPROPER JOINDER OF CLAIMS
As previously noted, plaintiff’s two claims are based upon

entirely different factual scenarios.

While joinder is encouraged

for purposes of judicial economy, the

“Federal Rules do not

contemplate joinder of different actions against different parties
which present entirely different factual and legal issues.”2

Zhu v.

Countrywide Realty Co., Inc., 160 F.Supp.2d 1210, 1225 (D.Kan.
2001)(citation omitted).

Under “the controlling principle” in Rule

18(a), “[u]nrelated claims against different defendants belong in
different suits.”

George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).

The court finds that plaintiff’s claim regarding intrusive
cameras is not properly joined with her other claims in this lawsuit.
Plaintiff does not allege facts suggesting that any person named as

2

Fed.R.Civ.P Rule 20(a)(2) governs permissive joinder of defendants
and pertinently provides:
(2) Defendants.
Persons . . . may be
defendants if: (A) any right to relief
jointly, severally, or in the alternative
out of the same transaction, occurrence,
or occurrences; and (B) any question of
defendants will arise in the action.

joined in one action as
is asserted against them
with respect to or arising
or series of transactions
law or fact common to all

Id. Fed.R.Civ.P. Rule 18(a) governs joinder of claims and pertinently provides:
AA party asserting a claim . . . may join, as independent or alternative claims,
as many claims as it has against an opposing party.@

11

defendant in this action was personally involved in the placement
of the security cameras in question or her being improperly viewed
on a monitor.

Nor are the two sets of facts shown to have arisen

out of the same transaction, occurrence, or series of transactions
or occurrences so as to allow joinder of claims despite a difference
in defendants.3

Plaintiff’s claim regarding security cameras will

be dismissed from this action without prejudice unless she shows that
it is not improperly joined with her first claim.

The dismissal of

this claim without prejudice will not mean that Ms. Hodge cannot
pursue it.

But it does mean that in order to do so, she must file

a separate civil action that names as defendants those persons who
actually caused her injury with the security cameras and monitors.
Plaintiff is reminded that she must satisfy the statutory filing fee
3
The court makes no ruling as to the merits of this claim. However,
some possible deficiencies are noted for plaintiff’s consideration should she
decide to raise it in a separate lawsuit.
First, the right to privacy is clearly
subject to reasonable limitations in the prison context, and security cameras are
an accepted part of the prison environment. Thus, a bald reference to privacy
in a prison cell without more is insufficient. Certainly, prison employees may
not use security cameras as a means to improperly view naked inmates of the opposite
sex. Courts have held that if guards regularly watch inmates of the opposite sex
who are engaged in personal activities, such as undressing, using toilet
facilities, or showering, the inmates’ constitutional rights to privacy are
violated. See Cumbey v. Meachum, 684 F.2d. 712, 714 (10th Cir. 1982). However,
plaintiff was not viewed in the shower or toilet, but in her cell. Moreover,
plaintiff’s own exhibits indicate that inmates were expected to wear underclothing
and another cover outside the shower area, and plaintiff’s excuse for disobeying
this directive is not particularly convincing. Furthermore, plaintiff alleges
that a male guard viewed her undressed on a single date. Her allegation that she
could have been watched over a two-year period is speculation. In short, no facts
are alleged showing that plaintiff was regularly viewed in an area where she was
allowed to be undressed. See Hayes v. Marriott, 70 F.3d 1144, 1147 (10th Cir.
1995)(an analysis of the “frequency with which prison guards watch inmates of the
opposite sex undressing, using toilet facilities, and showering is an important
factor in assessing the constitutionality of prison practices,” although a
prisoner’s right to privacy may be violated by a single search under certain
circumstances).
Finally, plaintiff complained through the inmate grievance
procedure, and managed to get her complaint resolved.

12

for each separate civil complaint that she files.

VII.

NO CLAIM AGAINST DEFENDANTS IN THEIR OFFICIAL CAPACITIES
It is well established that “the Eleventh Amendment precludes

a federal court from assessing damages against state officials sued
in their official capacities because such suits are in essence suits
against the state.”

Hunt v. Bennett, 17 F.3d 1263, 1267 (10th Cir.),

cert. denied, 513 U.S. 832 (1994).

Therefore, to the extent that

the plaintiff’s § 1983 claims for money damages are against state
employees in their official capacities, such relief is barred by the
Eleventh Amendment.

Accordingly, plaintiff’s official capacity

claims against employees at the TCF and the KDOC must be dismissed.

VIII.

FAILURE TO ALLEGE PERSONAL PARTICIPATION OF EACH DEFENDANT

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.

Trujillo v.

Williams, 465 F.3d 1210, 1227 (10th Cir. 2006)(A defendant’s direct
personal

responsibility

for

the

claimed

deprivation

of

a

constitutional right must be established); Mitchell v. Maynard, 80
F.3d 1433, 1441 (10th Cir. 1996); Olson v. Stotts, 9 F.3d 1475, 1477
(10th

Cir.

“plaintiff

1993)(affirming
failed

defendants”).

to

district

allege

court’s

personal

dismissal

participation

of

where
the

The U.S. Supreme Court reconfirmed this principle in
13

Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009):
Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a
theory of respondeat superior.
(Citations omitted).
Because vicarious liability is inapplicable to Bivens and
§ 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official’s own
individual actions, has violated the Constitution.
Id.

As set forth earlier, in order to state a claim under § 1983,

plaintiff must allege the violation of a right secured by the
Constitution and laws of the United States.

In addition, the Tenth

Circuit Court of Appeals has held “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; how the defendant’s action
harmed (the plaintiff); and, what specific legal right the plaintiff
believes the defendant violated.”

Nasious v. Two Unknown B.I.C.E.

Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th
Cir. 2007).
Ms. Hodge alleges that she was subjected to sexual harassment,
personal abuse, unwanted touching, and lewd acts.

However, she does

not suggest that any named defendant participated in any of these
acts.

The only person that is alleged to have participated in these

acts is another inmate who was not a state actor.
Plaintiff’s complaint with respect to the defendant KDOC and
TCF employees is that they failed to properly respond when she
reported the other inmate’s misconduct.

She has described acts or

inactions of defendants Mayo and Hull-Viera in support of her claim
14

that these two defendants failed to properly respond.

However, she

has not adequately described the personal participation of any other
defendant.
negligence,

She generally describes the acts of all defendants as
failure

unreasonable.

Her

to

follow

only

PREA

protocol,

untimely,

allegations

referring

to

and

defendants

Ballhagen, Fischli, Cooper,4 Burris, and Morgan in particular are
nothing more than conclusory statements that they were aware and
never responded.

To the extent that plaintiff’s claim against any

defendant is based upon the defendant’s response or failure to
respond to an administrative grievance, the claim fails.
because

the

denial

of

an

administrative

grievance

or

This is
appeal

concerning an incident that occurred prior to the filing of the
grievance does not show personal participation on the part of the
responding official in that prior unconstitutional conduct.

In

short, Ms. Hodge does not adequately explain what defendants
Ballhagen, Fischli, Cooper, Burris and Morgan did that amounted to
a violation of her constitutional rights.

IX.

FAILURE TO STATE A FEDERAL CONSTITUTIONAL CLAIM
Plaintiff makes no reference to any federal constitutional

provision or federal law in her complaint.

She may believe that the

U.S. Constitution was violated but simply failed to specify the

4
Plaintiff’s own exhibits show to the contrary that defendants Cooper and
Burris responded to her administrative grievances.

15

constitutional provision.

However, the court is not free to “supply

additional factual allegations to round out a plaintiff’s complaint
or construct a legal theory on a plaintiff’s behalf.”
Plaintiff’s
negligence.”

express

claim

against

defendants

is

“staff

Negligence, even by state prison employees, does not

arise to a federal constitutional violation.

Simple negligence is

a tort claim that must be litigated in state court.
Plaintiff also claims violations of General Orders and KDOC
prison regulations.

These are matters of state law.

Violations of

state law are not sufficient grounds for relief in federal court under
42 U.S.C. § 1983.
Plaintiff also fails to allege any facts to suggest how the acts
or inaction of each defendant resulted in physical harm to her.
only claimed injuries are humiliation and feeling violated.

Her
Under

federal statutory law, an inmate may not bring a federal cause of
action for mental or emotional injury absent a showing of physical
injury.

42 U.S.C. § 1997e(e)(“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 while in custody
without a prior showing of physical injury.”).
Plaintiff’s bald statement that she had to risk her “goodtime,
program and custody” is not supported by any facts showing that she
actually lost any good time credit or that her program or custody
classification was changed to her detriment as a result of her efforts
16

to rectify her problems with her bunkmate.
Plaintiff’s claim for injunctive relief added in her Amended
Complaint is nothing more than a conclusory statement.

She does not

indicate what needs to be enjoined, and it appears that both
situations have been resolved.
Plaintiff’s

allegations

might

be

liberally

construed

as

attempting to state a claim of failure to protect under the Eighth
Amendment to the United States Constitution applicable to the states
through the Fourteenth Amendment.

See Barney v. Pulsipher, 143 F.3d

1299, 1310 n. 10 (10th Cir. 1998); Riddle v. Mondragon, 83 F.3d 1197,
1202 (10th Cir. 1996).

Clearly, a prisoner is entitled to reasonable

protection against assault by another inmate.
Muskogee, Okl., 900 F.2d 1489 (10th Cir. 1990).

Berry v. City of
However, plaintiff

has failed to allege sufficient facts to support such a claim.
A claim of failure to protect is evaluated under the deliberate
indifference standard of Estelle v. Gamble, 429 U.S. 97 (1976),
reiterated in Wilson v. Seiter, 501 U.S. 294 (1991).
deliberate

indifference

under

the

Eighth

The test for

Amendment

is

well

established in the Tenth Circuit and has “both an objective and a
subjective component.”
(10th Cir. 2000).

Sealock v. Colorado, 218 F.3d 1205, 1209

The objective component of the test is met if the

harm suffered is “sufficiently serious” to implicate the Cruel and
Unusual Punishment Clause.

Wilson, 501 U.S. at 298; Farmer v.

Brennan, 511 U.S. 825, 834 (1994).
17

To satisfy this component, the

inmate must show that she was incarcerated under conditions posing
a substantial risk of serious harm.5

The subjective component “is

met if a prison official ‘knows of and disregards an excessive risk
to inmate health or safety.’”
Farmer, 511 U.S. at 837).

Sealock, 218 F.3d at 1209 (quoting

Under this component, the inmate must

establish that prison officials had a sufficiently culpable state
of mind in allowing the deprivation to take place.

Wilson, 501 U.S.

at 302-03; Reynolds, 370 F.3d at 1031; Verdicia v. Adams, 327 F.3d
1171, 1175 (10th Cir. 2003)(quoting Benefield v. McDowall, 241 F.3d
1267, 1271 (10th Cir. 2001)).

To be liable for unsafe conditions

of confinement the prison official “must both be aware of facts from
which the inference could be drawn that a substantial risk of serious
harm exists, and he (or she) must also draw the inference.”

Farmer,

511 U.S. at 837; Gonzales v. Martinez, 403 F.3d 1179, 1186 (10th Cir.
2005).

Both components must be satisfied.

Callahan v. Poppell, 471

F.3d 1155, 1159 (10th Cir. 2006).
Eighth Amendment liability requires “more than ordinary lack
of due care for the prisoner’s interests or safety.”

Whitley v.

Albers, 475 U.S. 312, 319 (1986).

“Mere negligence does not

constitute deliberate indifference.”

Smith v. Cummings, 445 F.3d

5

A sufficiently serious prison condition is one which exposes an inmate to
“a substantial risk of serious harm.” Reynolds v. Powell, 370 F.3d 1028, 1031
(10th Cir. 2004).
Prison conditions may be harsh and restrictive without
violating constitutional rights, Barney, 143 F.3d at 1311, and the relevant inquiry
involves a review of the “circumstances, nature, and duration” of the conditions
with “the length of exposure to the conditions . . . of prime importance.” DeSpain
v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001).

18

1254, 1258 (10th Cir. 2006); see Board of County Commissioners v.
Brown, 520 U.S. 397, 407–10 (1997)(A higher standard is required than
simple negligence or heightened negligence).

Thus, negligent

failure to protect inmates from assaults by other inmates is not
actionable under the Eighth Amendment.

Farmer, 511 U.S. at 835.

An

official’s failure to alleviate a significant or obvious risk that
she

should

have

perceived

but

did

not,

“while

no

cause

for

commendation,” does not constitute a violation of the Eighth
Amendment.

Id. at 838.

As has been discussed, plaintiff fails to adequately describe
the individual actions of all but two defendants.

She alleges no

facts to establish a culpable state of mind on the part of any
defendant.

Accepting the facts in the complaint as true but not the

conclusory statements, the court concludes that plaintiff has not
alleged sufficient facts to state a plausible federal constitutional
violation against any named defendant.

IX.

MOTION FOR APPOINTMENT OF COUNSEL
The court has considered plaintiff’s Motion for Appointment

of Counsel (Doc. 3).

There is no constitutional right to appointment

of counsel in a civil case.

Durre v. Dempsey, 869 F.2d 543, 547 (10th

Cir. 1989); Carper v. Deland, 54 F.3d 613, 616 (10th Cir. 1995).

The

decision whether to appoint counsel in a civil matter lies in the
discretion of the district court.
19

Williams v. Meese, 926 F.2d 994,

996 (10th Cir. 1991).

The burden is on the applicant to convince

the court that there is sufficient merit to her claim to warrant the
Steffey v. Orman, 461 F.3d 1218, 1223 (10th

appointment of counsel.

Cir. 2006)(citing Hill v. SmithKline Beecham Corp., 393 F.3d 1111,
1115 (10th Cir. 2004)).

It is not enough “that having counsel

appointed would have assisted [the prisoner] in presenting his
strongest possible case, [as] the same could be said in any case.”
Steffey, 461 F.3d at 1223 (citing Rucks v. Boergermann, 57 F.3d 978,
979 (10th Cir. 1995)).

In deciding whether to appoint counsel, the

court has considered “the merits of the prisoner’s claims, the nature
and complexity of the factual and legal issues, and the prisoner’s
ability to investigate the facts and present his claims.”
57 F.3d at 979; Hill, 393 F.3d at 1115.

Rucks,

The court concludes in this

case that (1) it is not clear at this juncture that plaintiff has
asserted a colorable claim against a named defendant; (2) the issues
are not complex; and (3) plaintiff appears capable of adequately
presenting facts and arguments.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff’s Amended
Complaint (Doc. 4) is construed as incorporating the original
complaint (Doc. 1).
IT IS FURTHER ORDERED that plaintiff is granted thirty (30) days
in which to submit to the court an initial partial filing fee of $
52.00.

Any objection to this order must be filed on or before the

date payment is due.

The failure to pay the fees as required herein
20

may result in dismissal of this action without prejudice.
IT IS FURTHER ORDERED that within the same thirty-day period,
plaintiff is required to cure the deficiencies in her Amended
Complaint that have been set forth herein.
IT IS FURTHER ORDERED that plaintiff=s Motion for Appointment
of Counsel (Doc. 3) is denied, without prejudice.
IT IS SO ORDERED.
Dated this 16th day of November, 2012, at Topeka, Kansas.

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

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