Hachmeister v. Kline et al

Filing 6

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted thirty (30) days in which to submit to the court an initial partial filing fee of $7.50. 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 may result in dismissal of this action without prejudice. Within the same thirty-day period, plaintiff is required to file a complete Amended Complaint upon court-approved forms that cures the deficiences discussed herein. Plaintiff's motion 4 to amend complaint is granted to the extent that he is allowed to submit a complete Amended Complaint and is granted to the extent that he seeks to voluntarily dismiss this action as against the State of Kansas. Plaintiff's motions 3 & 5 for discovery are denied without prejudice. Signed by Senior District Judge Sam A. Crow on 1/22/2013. (Mailed to pro se party Jason Wayne Hachmeister by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JASON WAYNE HACHMEISTER,
Plaintiff,
v.

CASE NO.

12-3263-SAC

RICHARD KLINE, Former Director,
Shawnee County Jail, 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 Shawnee County Jail, Topeka, Kansas (SCJ).
Plaintiff claims that defendants failed or refused to provide him
with properly prepared or served halal meals 1 during Ramadan and
thereby denied him the right to practice his religion in violation
the First and Fourteenth Amendments.

Having examined the materials

filed, the court assesses an initial partial filing fee and gives
plaintiff

time

to

file

an

Amended

Complaint

that

cures

deficiencies in his original complaint.

1

The Tenth Circuit Court of Appeals recently explained:
There are varying Islamic dietary traditions among Muslims, some more
strict than others. According to the Islamic Food and Nutrition
Council of America (IFANCA) and Islamic Services of America (ISA),
a “halal,” or “lawful” diet, prohibits items deemed “haram” (or
“unlawful”), including pork and its by-products, animals improperly
slaughtered or killed, alcohol and intoxicants, blood and blood
by-products, and foods contaminated with haram products.

Abdulhaseeb v. Calbone, 600 F.3d 1301, 1313 (10th Cir. 2010).

1

the

FILING FEE
Plaintiff has filed a motion for leave to proceed in forma
pauperis (Doc. 2), and has attached an Inmate Account Statement in
support as statutorily mandated.

Under 28 U.S.C. § 1915(b)(1), a

plaintiff granted such leave remains obligated to pay the full fee
of $350.00 for filing a civil action.

Being granted such leave

merely entitles him to pay the filing fee over time through payments
automatically deducted from his inmate trust fund account as
authorized by 28 U.S.C. § 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 deposits 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 to plaintiff’s account was $ 48.33, and that
monthly balances are not provided.

Based upon the information

provided, the court assesses an initial partial filing fee of $ 7.50,
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 is given time to submit
the fee to the court.

His failure to pay the partial fee within the

allotted time may result in dismissal of this action without further
notice.

2

SCREENING
Because Mr. Hachmeister is a prisoner, the court is required
by the Prisoner Litigation Reform Act to screen his 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.
(b); 28 U.S.C. § 1915(e)(2)(B).

28 U.S.C. § 1915A(a) and

“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).

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

without

However, a pro se
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).

The complaint must offer “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action.”
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Bell

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.”
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
3

The court accepts all well-pleaded allegations in the complaint as
true, Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006); but “when
the allegations in a complaint, however true, could not raise a claim
of entitlement to relief,” dismissal is appropriate.
U.S.

at

558.

To

avoid

dismissal,

the

Twombly, 550

complaint’s

“factual

allegations must be enough to raise a right to relief above the
speculative level.”

Id. at 555.

In other words, it must contain

“enough facts to state a claim to relief that is plausible on its
face.”

Id. at 570.

The Tenth Circuit Court of Appeals has explained

“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).

FACTUAL BACKGROUND
As the factual basis for his complaint, Mr. Hachmeister alleges
as follows.2

On January 12, while plaintiff was confined at the SCJ,

he converted to Islam.

Since late January, he has “been on the CRD

(certified religious diet) tray.”

In July, he sent his request to

celebrate Ramadan in response to a memorandum posted by Programs Unit
Supervisor Goody Ari.

Plaintiff did not ask to be taken off the CRD

2

All the events upon which the complaint is based are alleged to have occurred
in 2012.

4

diet and was not told that CRDs were disallowed during Ramadan.
Thursday, July 19 he received macaroni with turkey ham.

On

But there

was a new correctional officer (CO) in the module and plaintiff “gave
the kitchen the benefit of the doubt.”
supper showed up.”

On Friday, his “Ramadan

He became upset because his CRD tray came on the

regular supper cart before sundown, and he couldn’t get his CRD later
when he could eat it.

On Saturday, his CRD tray came on the regular

lunch cart, and he could not eat it because it was not sundown.
CO on duty that night called the kitchen.

The

Plaintiff’s CRD tray again

came on the regular supper meal cart, and he couldn’t eat it because
it was not sundown.
a beef patty.

The meal that came at a time he could eat was

The same problems occurred on Sunday, and another CO

called the kitchen.

Plaintiff apparently also sent staff request

forms to the Shift Supervisor and to Director Kline, which they did
not receive until Monday, July 23 because of the weekend.

The Shift

Supervisor said he would talk to plaintiff about his complaint but
never did.

Kline’s response that he had “checked and the Ramadan

menu (was) certified by both registered religious authorities and
dieticians” was not helpful since plaintiff had gotten regular rather
than CRD meals.

On Monday, a CO called the kitchen again to tell

them that plaintiff was to receive the CRD tray, but plaintiff again
received a non-CRD tray for supper.
the proper food.

On Tuesday, plaintiff received

On Wednesday and Thursday he got non-CRD meals,

and on Thursday he sent an Inmate Grievance Form to Division Manager
5

Tim Phelps.

His “sundown meals started to be correct.3

On August

15 “after thinking everything with the food had been sorted out,”
he got a chicken patty for supper.

If chicken, turkey, or beef is

not properly slaughtered and has not had the name of Allah said over
it while being slaughtered, it is impermissible food for plaintiff.
The only relief requested by plaintiff in his original complaint is
$100,000,000.

MOTION TO AMEND
Plaintiff has recently submitted a one-page pleading (Doc. 4),
with which he apparently intended to amend his complaint.

Even

though plaintiff is entitled to amend his complaint once without
leave of court, the clerk was directed to docket this paper as
plaintiff’s Motion to Amend because it is not a complete Amended
Complaint.

Plaintiff

may not amend his complaint by simply

submitting a paper in which he sets forth a few claims, allegations,
or parties he wants to add to his original complaint as Mr.
Hachmeister attempts to do here.

Instead, in order to add claims

or significant allegations to a complaint, the plaintiff must prepare
and submit a complete Amended Complaint.

See Fed.R.Civ.P. Rule 15.

An Amended Complaint is not simply combined with the original
3

Plaintiff further alleges that the trays his CRD meals came on were non-CRD
trays, that this “can lead to cross-contamination making the food” impermissible,
and that he received the proper food on the proper CRD tray only 3 out of a possible
31 meals. However, plaintiff states that he’s “not overly concerned about that
here.” For this reason, the court does not consider these allegations as a basis
for his claim for relief.

6

complaint but completely supersedes it.

Consequently, it must

include all parties, claims, and factual allegations that the
plaintiff intends to present including those he wants to retain from
the original complaint.

It does not appear that plaintiff intended

to replace his original complaint with this one-page pleading.
may a plaintiff simply refer to the original complaint.

Nor

Any claims

or allegations not included in the Amended Complaint are no longer
before the court.

To comply with local court rule, the Amended

Complaint must be submitted upon court-approved forms.
Plaintiff is given time to file a complete Amended Complaint
upon

proper

allegations.

forms

that

contains

all

his

claims

and

factual

He must write the number of this case, 12-3263-SAC at

the top of the first page of his Amended Complaint.

This also gives

him the opportunity to cure the following deficiencies found in his
original complaint.

FAILURE TO STATE A CLAIM AGAINST NAMED DEFENDANTS
It is long-settled law that an essential element of a civil
rights claim is the personal participation of each named defendant
in the alleged constitutional deprivation.

Foote v. Spiegel, 118

F.3d 1416, 1423-24 (10th Cir. 1997); Ciempa v. Jones, 745 F.Supp.2d
1171, 1200 (N.D. Okla. 2010) (N.D. Okla. 2010), judgment aff’d, 477
Fed.Appx.

508

(10th

Cir.

2012).

“Allegations

of

personal

participation, like all other factual averments, must be specific,
7

not conclusory.”

Ajaj v. Federal Bureau of Prisons, 2011 WL 902440

(D.Colo. Mar. 10, 2011, unpublished)(citing Ashcroft, 556 U.S. at
1948)(“Because vicarious liability is inapplicable to . . . § 1983
suits,

a

plaintiff

must

plead

that

each

Government-official

defendant, through the official’s own individual actions, has
violated the Constitution.”).

As a result, a plaintiff is required

to name each defendant not only in the caption of the complaint, but
again in the body of the complaint and to include in the body a
description of the acts taken by each defendant that violated
plaintiff’s

federal

constitutional

rights.

It

is

likewise

well-established that supervisory status alone does not create § 1983
liability.

Duffield v. Jackson, 545 F.3d 1234, 1239 (10th Cir. 2008).

Moreover, the allegation that an official denied a grievance or
failed to respond to a grievance is not sufficient to show personal
participation.

Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir.

2009)(A “denial of a grievance, by itself without any connection to
the violation of constitutional rights alleged by plaintiff, does
not establish personal participation under § 1983.”); see Stewart
v. Beach, 701 F.3d 1322, 1328 (10th Cir. 2012).
Plaintiff names the following present or former employees of
the SCJ as defendants: Richard Kline, Former Director; Brian Cole,
Acting Director; Tim Phelps, Division Manager; Shawn King, Division
Manager; Goody Ari, Programs Unit Supervisor; J. Rucker, Shift
Supervisor; and Edna (lnu), Programs.
8

Plaintiff’s claims against

Kline and Cole are based on nothing more than either their supervisory
capacity or their denial of grievances.

Plaintiff’s claim against

defendant Phelps is based upon answers Phelps provided to grievances.
Likewise, plaintiff’s claim against defendant Rucker appears to be
based on Rucker’s possibly having answered one of his grievances.
Plaintiff’s allegations that defendant Ari sent him notification to
submit a written request and told him he was on the list for Ramadan,
taken as true, fail to state any federal constitutional violation.
He does not allege that Ari denied his request to celebrate Ramadan
or prevented his receiving halal meals.
is described in the complaint.

No act taken by Shawn King

Plaintiff’s allegations regarding

defendant Edna do not involve the denial of halal meals.

Instead,

he claims that she denied his request for group prayer for Muslims.4
In short, no facts are alleged to support a plausible claim that any
of these SCJ employees personally participated in the failure to
prepare or deliver proper religious meals to Mr. Hachmeister at the
correct times on the dates in question.

It follows that the claims

against each of these defendants are subject to being dismissed
unless plaintiff alleges additional facts in his Amended Complaint
that show his or her personal participation.
Plaintiff also names Shawnee County Jail; Shawnee County,
Kansas; “Shawnee County Commissioners Office, Richard Eckert, County
4

Plaintiff does not allege facts or authority showing that he has a federal
constitutional right to group prayer while in jail. In any event, his allegations
indicate that he did not fully exhaust administrative remedies on this claim. It
follows that he is precluded from pursuing this claim at this time.

9

Counselor;” and State of Kansas as defendants.

Again, he fails to

allege any facts showing the personal participation of Richard
Eckert, the only “person” in this group, in the denial of halal meals.
The State of Kansas is absolutely immune to suit for money damages
under the Eleventh Amendment, and there is no indication that it has
consented to this lawsuit.5

The jail is a facility, not a “person”

subject to suit under § 1983.

Plaintiff does not allege that the

denial of halal meals was the result of a policy or practice of the
County or the County Commissioners or that any policy was the direct
cause or moving force behind the alleged constitutional violation.
It follows that he states no claim against these municipal entities.
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978); Smedley
v. Corrections Corp. of America, 175 Fed.Appx. 943, 946 (10th Cir.
2005).6
Plaintiff also names Aramark Correctional Services, Aramark,
and Mary Fletcher, Aramark Food Services Director as defendants.
Neither Aramark nor Aramark Correctional Services is a “person” or
shown to have acted under color of state law.
request injunctive relief.

Plaintiff does not

Nor does it appear that he would be

entitled to such relief, since his own allegations indicate that the

5

In his motion to amend (Doc. 4), plaintiff seeks to dismiss this action as
against the State of Kansas having discovered its immunity on his own. The court
liberally construes this portion of the motion as a motion to voluntarily dismiss
defendant State of Kansas, and grants the motion.
6

Unpublished cases are cited herein for persuasive reasoning, and not as
binding precedent.

10

problems with his CRD meals were resolved before this lawsuit was
filed.
Although food service workers are the more likely participants
in preparing and serving meals, plaintiff names only one food service
employee as a defendant, and she is the supervisor.

In the

complaint, he does not describe a single act taken by defendant
Fletcher.

Accordingly, the court finds that he does not allege facts

showing defendant Fletcher’s personal participation in the denial
of his religious meals.
It follows from the foregoing analysis that plaintiff’s claims
against all defendants are subject to dismissal for failure to allege
sufficient facts showing either personal participation or legal
liability under § 1983 on the part of each defendant.

FAILURE TO STATE A CLAIM OF DENIAL OF RELIGIOUS FREEDOM
“Under
entitled

to

the

First

the

and

Fourteenth

reasonable

Amendments,

opportunity

sincerely-held religious beliefs.”

to

inmates

pursue

are

their

Gallagher, 587 F.3d at 1069

(citation omitted); McKinley v. Maddox, ___Fed.Appx.___, 2012 WL
3292389 (10th Cir. Aug. 14, 2012, unpublished); Makin v. Colorado
Dept. of Corrections, 183 F.3d 1205 (10th Cir. 1999).

In order to

state a constitutional violation based on a free-exercise claim, a
prisoner must allege that defendants “substantially burdened his
sincerely-held religious beliefs.”
11

Gallagher, 587 F.3d at 1069.

In addition, he “must assert conscious or intentional interference
with his free exercise rights to state a valid claim under § 1983.”
Id. at 1070 (quotation omitted).7
The court assumes for purposes of screening that plaintiff has
sufficiently alleged sincerely-held religious beliefs.

The issue

presented by plaintiff’s allegations is whether or not the denial
of either properly prepared or timely-delivered halal meals to Mr.
Hachmeister,

on

the

limited

occasions

alleged,

burdened the exercise of his religious beliefs.

substantially
Abdulhaseeb v.

Calbone, 600 F.3d 1301, 1314 (10th Cir.), cert. denied, 131 S.Ct. 469
(2010).

The Tenth Circuit

has

identified “three broad ways

government action may impose a substantial burden on religious
exercise:”
requir[ing] participation in an activity prohibited by a
sincerely held religious belief, or (2) prevent[ing]
participation in conduct motivated by a sincerely held
religious belief, or (3) plac[ing] substantial pressure
on an adherent either not to engage in conduct motivated
by a sincerely held religious belief or to engage in
conduct contrary to a sincerely held religious belief,
such as where the government presents the plaintiff with
a Hobson's choice-an illusory choice where the only
realistically possible course of action trenches on an
adherent's sincerely held religious belief.
Strope

v.

Cummings,

381

Fed.Appx.

878,

881

(10th

unpublished)(citing Abdulhaseeb, 600 F.3d at 1316).

7

Cir.

2010,

The Tenth

Once the prisoner satisfies this initial step, then defendants “may identify
the legitimate penological interests that justified the impinging conduct.”
McKinley, 2012 WL 3292389 at *3 (citation omitted). The court then balances
factors set forth by the Supreme Court “to determine the reasonableness” of the
conduct. Id.

12

Circuit’s reasoning in Strope is instructive:
Illustrating the distinction between substantial burden
and inconvenience, we held “(1) the flat denial of a halal
diet with approved meats was actionable, id. at 1316-20,
but (2) an incident (the panel concurrence notes “sporadic
incidents”) in which a prisoner’s meal was rendered
inedible by service of prohibited items contaminating his
tray was not actionable, id. at 1320-21; id. at 1325; see
also Gallagher, 587 F.3d at 1070 (holding isolated
violation of kosher restrictions did not support Free
Exercise claim). We “assume[d] that as the frequency of
presenting unacceptable foods increases, at some point the
situation would rise to the level of a substantial burden,”
but that level had clearly not been reached.
Id.

(citing

Abdulhaseeb,

600

F.3d

at

1321).

In

sum,

mere

inconvenience, negligence, and isolated or sporadic incidents are
not sufficient to show a substantial burden.
Taking plaintiff’s fact allegations as true, he was denied some
of his religious meals, usually his dinner meal, due to either
improper preparation or untimely delivery during the first 7 days
of Ramadan.

The problems in obtaining his religious meals were

nonexistent prior to Ramadan and were resolved after the first week
of Ramadan.

Given these facts, this case appears analogous to

Gallagher, in which the Tenth Circuit reasoned as follows:
In Gallagher, the prisoner alleged that two of his requests
for special food on religious holidays were not approved
by the defendants until after those holidays had passed,
and on one occasion he was served food that was not prepared
according to kosher requirements.
We held that the
“defendants’ actions were, at most isolated acts of
negligence, not pervasive violations of [the prisoner’s]
right to free exercise of religion.” Id. We therefore
affirmed the district court’s dismissal of the prisoner’s
claims because he failed to allege a substantial burden
on the exercise of his religious beliefs.”
Id. at
13

1070-71.
See McKinley, at *4 (citing Gallagher, 587 F.3d at 1070).

In

Abdulhaseeb, the Tenth Circuit similarly stated that “[w]e are not
willing to conclude . . . that every single presentation of a meal
an inmate considers impermissible constitutes a substantial burden
on an inmate’s religions exercise.”

Abdulhaseeb, 600 F.3d at 1321.

Mr. Hachmeister clearly alleges that he was denied halal meals on
more than a single occasion, but he alleges no facts suggesting that
the denials were intentional.

Moreover, he does not explain why he

could not keep his CRD meals that were delivered on the regular supper
cart to eat after sundown.

Nor does he allege facts showing that

he was unable to otherwise obtain sufficient halal food during the
first week of Ramadan.

The court finds that the facts alleged in

the original complaint show sporadic incidents that were undoubtedly
an

inconvenience

substantial

to

burden

plaintiff

on

or

plaintiff’s

negligence,
exercise

of

rather
his

than

a

religion.

Plaintiff’s denial of religious freedom claim may be dismissed on
this basis, unless he alleges sufficient additional facts in his
Amended Complaint.

OTHER CLAIMS
Plaintiff also complains about defendant Edna’s denial of his
request

that

Muslim

inmates

be

allowed

to

gather

on

Friday

afternoons, being locked down on two occasions when Christian inmates
14

were participating in religious activities, and that Christian
inmates were allowed to proselytize in the jail.
of finding plastic pieces in his food.

He also complains

Plaintiff alleges in his

complaint that he has not presented his other complaints to the jail
administration.

Pursuant to 42 U.S.C. § 1997(e)(a), claims that

have not been presented through the administrative remedy process
may not be raised in a federal civil rights complaint.

It follows

that these claims are subject to being dismissed, unless plaintiff
shows that he has fully and properly exhausted administrative
remedies on each of them.

FAILURE TO STATE CLAIM FOR COMPENSATORY DAMAGES
Federal law prohibits prisoners from bringing federal actions
“for mental or emotional injury suffered while in custody without
a prior showing of physical injury.”

42 U.S.C. § 1997e(e).

The

District Court in 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. Sept. 29, 2010, unpublished)
reasonably applied this provision to a claim similar to Mr.
Hachmeister’s:
Plaintiff's request for compensatory and punitive damages
are also barred on separate grounds. (Mot. at 15-16.)
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 while in custody
without a prior showing of physical injury.” 42 U.S.C.
15

§ 1997e(e) (2008). There has been no showing of physical
injury by the Plaintiff.
Section 1997e(e) applies
regardless of the nature of the underlying substantive
violation asserted. Searles v. Van Bebber, 251 F.3d 869,
876 (10th Cir.2001)(applying section 1997e(e) to the
plaintiff’s First Amendment claim for free exercise of
religion).
Id.

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 in § 1997(e)(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).
Mr. Hachmeister has not described any physical injury that was
caused by the alleged deprivations of his constitutional rights on
seven days in July and a single day in August 2012.

His only request

for relief in his complaint is for $100,000,000.

The court finds

that plaintiff’s claim for actual or compensatory damages is subject
to being dismissed unless he alleges facts showing a prior physical
injury.

Plaintiff’s allegations in his motion to amend indicating

that he also seeks compensatory damages for “injuries to his liberty”
and discrimination have not been properly added by the filing of an
Amended Complaint, and in any event do not suggest physical injury.

FAILURE TO STATE FACTS TO SUPPORT A CLAIM FOR PUNITIVE DAMAGES
Plaintiff did not request punitive damages in his original
16

complaint, but indicates in his motion to amend that they will be
requested in his Amended Complaint.
in a § 1983 lawsuit.

Punitive damages are available

However, they “are to be awarded 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, 745 F.Supp.2d at 1201; Nasious, 2010 WL 1268135 at *8, n.6
(To obtain punitive damages under Section 1983, Plaintiff must show
Defendant’s conduct was “‘motivated by evil motive or intent, or .
. . involve[d] reckless or callous indifference to [his] federally
protected

rights.’”

(citations

omitted).

“Here,

Plaintiff’s

failure to show Defendant Robinson personally participated in any
unconstitutional activity precludes a showing of evil motive or
intent on Robinson’s behalf.

Accordingly, Plaintiff’s request for

punitive damages is barred.”)); see also Patel v. Wooten, 264
Fed.Appx. 755, 760 (10th Cir. 2008, unpublished)(determining, in the
First Amendment context, that 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”)).
Mr. Hachmeister’s allegations of deliberate indifference to his
First Amendment rights are completely conclusory.

He describes no

act on the part of any person who participated in the alleged denial
of his eight religious meals that evinces reckless or callous
17

indifference or evil intent.

Unless, plaintiff alleges additional

facts in his Amended Complaint showing bad motive on the part of a
proper defendant, any claim for punitive damages is subject to
dismissal.8

MOTIONS TO COMPEL DISCOVERY
Plaintiff has filed two Motions to Compel Discovery.

He mainly

seeks logs and video tapes produced in his area at the SCJ, which
he believes will prove his claims.

Plaintiff’s attempt to seek

discovery prior to service of the complaint on defendants without
any indication that defendants have failed to respond to a proper
discovery request presented to them by him and without certification
that he has conferred with defendants as required by Fed.R.Civ.P.
Rule 37(a)(1) is premature.

Fed.R.Civ.P. Rule 26(d) also expressly

states that a party may not seek discovery from any source before
the parties have conferred as required by Rule 26(f), except when
otherwise authorized.

Fed.R.Civ.P. Rule 26(f) provides for a

conference of the parties that includes the planning of discovery.
Plaintiff is bound by

the Federal Rules of Civil Procedure.

Accordingly, these motions are denied without prejudice.
Plaintiff’s allegation in his second motion for discovery that

8

“‘Nominal damages are damages in name only, trivial sums such as six cents
or $1.’ They do not purport to compensate for past wrongs. They are symbolic
only.” Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1264 (10th
Cir. 2004)(quoting 1 Dan B. Dobbs, Dobbs Law of Remedies § 3.3(2), at 294 (2d ed.
1993)).

18

his towel that served as a prayer rug was taken during a recent
shakedown is not properly added as a claim in this lawsuit through
his filing of this motion.

Nor does it appear that exhaustion of

administrative remedies has been completed upon this claim.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff is granted
thirty (30) days in which to submit to the court an initial partial
filing fee of $ 7.50.

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 may result in dismissal of this action without
prejudice.
IT IS FURTHER ORDERED that within the same thirty-day period
plaintiff is required to file a complete Amended Complaint upon
court-approved forms that cures the deficiencies discussed herein.
IT IS FURTHER ORDERED that plaintiff’s Motion to Amend Complaint
(Doc. 4) is granted to the extent that he is allowed to submit a
complete Amended Complaint, and is granted to the extent that he seeks
to voluntarily dismiss this action as against the State of Kansas.
IT IS FURTHER ORDERED that plaintiff’s Motions for Discovery
(Docs. 3 & 5) are denied, without prejudice.
The clerk is directed to send plaintiff § 1983 forms.
IT IS SO ORDERED.
Dated this 22nd day of January, 2013, at Topeka, Kansas.

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

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