Galicia-Hernandez (ID 95287) v. Cline et al

Filing 6

MEMORANDUM AND ORDER ENTERED: This action is dismissed and all relief is denied for failure to allege personal participation of defendants and failure to allege facts sufficient to state a claim under the Eighth Amendment. Plaintiff's motion 3 for leave to proceed without prepayment of fees is granted. Signed by Senior District Judge Sam A. Crow on 05/12/15. Mailed to pro se party Pedro Galicia-Hernandez by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PEDRO GALICIAHERNANDEZ,
Plaintiff,
v.

CASE NO.

13-3058-SAC

SAM CLINE, Warden,
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 Hutchinson Correctional Facility,
Hutchinson, Kansas (HCF).

The court screened the complaint and

entered a Memorandum and Order setting forth deficiencies found
therein.

Plaintiff was required to show good cause why this

action should not be dismissed on account of those deficiencies.
The

matter

is

before

the

court

upon

plaintiff’s

Response.1

Having considered all materials in the file the court concludes,
for reasons stated herein and in the court’s prior Memorandum and
Order, that this action must be dismissed for failure to show
personal

participation

in

the

alleged

incident

by

either

defendant and for failure to state sufficient facts to establish

1

The court also required plaintiff to submit an initial partial filing
fee, and he complied. As a result, his motion to proceed without prepayment
of fees is granted.

1

deliberate indifference on the part of either defendant.2
ALLEGATIONS AND CLAIMS
In its prior Memorandum and Order, the court set forth
plaintiff’s
objections
Response

allegations
or

he

and

corrections

alleges

to

claims.
the

additional

Plaintiff

court’s

facts.

makes

no

In

his

plaintiff

now

summary.

Thus,

alleges the following facts in support of his claims.

At the

time this claim arose, plaintiff was a “seg inmate” classified as
“Other Security Risk” and housed in A3 cellhouse in the Special
Management
inmates.”
A3

Unit

where

“they

were

also

housing

population

On September 21, 2012, he was involved in a fight in

cellhouse

with

a

population

inmate.

Both

inmates

were

subdued, restrained, and escorted to the original segregation
unit.

The other inmate was taken into the sickcall room to be

cleared, and plaintiff was put in the shower while waiting to be
cleared.

Msgt.

Widner

decided

to

take

plaintiff

to

the

population clinic, and he and other officers went in escort.
Plaintiff

was

in

cuffs

and

bellychains.

Halfway

down

the

rotunda, plaintiff was aggressively approached and attacked by
another
Widner.

inmate

while

he

was

under

the

supervision

Widner failed to prevent this attack.

of

Msgt.

Plaintiff fell

and “was directly maced,” which made his situation even more
2

The court also found that plaintiff had not alleged facts to show actual
injury in support of his claim for compensatory damages.
In his Response,
plaintiff makes additional allegations of serious injuries.

2

unsafe because he could not see from where the hits to his head
and face were coming.

He was maced along with the other inmates

when Widner broke up the incident.
after “about 2-3 min.”

The incident was contained

Plaintiff was put in a shower to wash off

the mace and placed in a cell.

Pictures were taken of his head

and face.
Plaintiff filed a grievance regarding this incident, and the
Unit Team responded that when “officers need to take you to the
clinic, they are allowed to do so;” that “Officer Widner used his
OC Spray to try to contain the situation;” and Widner “was within
the scope of his job by taking you to the general population
Complaint, Doc. 1-1.3

clinic and by his use of the OC spray.”

The Secretary of Corrections affirmed this decision.
Plaintiff has correctly asserted that the Eighth Amendment
requires prison officials to protect prisoners from violence at
the hands of other prisoners.

He claims that defendants Cline

and Roberts “should have had policy and or procedures in place”
so the incident that occurred while he was being escorted in
restraints “should never have happened to (him).”

He seeks a

declaration that his constitutional rights were violated, and
compensatory

damages

in

the

amount

of

$15,000

from

each

defendant.

3

Plaintiff does not provide either the content or a copy of the Warden’s
response to his appeal of this grievance.

3

In

his

Response,

plaintiff

adds

allegations

injuries from the incident and medical treatment.

regarding

Following this

incident, plaintiff suffered from “shoulder and head trauma” and
“was in severe pain.”4
In his Response, plaintiff adds the following allegations of
other incidents.

A couple months before this incident, “similar

assaults and fights were happening on a consistent basis.”

This

made “the Administration change yards between the groups” that
were fighting each other, which shows “they were well aware of
the problem;” and this would have made Sam Cline, as HCF Warden,
aware.

On “another occasion” the officer left an inmate in cuffs

on “our yard” that was using the computer and an inmate from
population on the other side of A3 cellhouse attacked him.

That

inmate tried to defend himself; the officer heard the commotion,
returned

and

broke

it

up;

but

the

handcuffed

inmate,

like

plaintiff, was unnecessarily maced when he was “only trying to
fend

off

attacker.”

“Those

two

incidents”

made

“them

move

population out of A3 cellhouse” because “they” realized there

4

Plaintiff further alleges that he sought medical attention, was only
given Tylenol and another pill that never stopped the pain, had blurry vision
for a while, and suggested that he be given a cat scan or x-ray because he
“felt something seriously wrong” with his head.
However, “the doctor
declined” saying he “most likely just had” inflammation in his brain from the
blows.
These allegations are made in plaintiff’s Response and not in a
complete and proper Amended Complaint.
They are not sufficient to add an
Eighth Amendment claim of denial of medical care to this action, which is
against Cline and Roberts.
Plaintiff does not allege that either defendant
was personally involved in his medical care. In order to pursue a denial of
medical care claim, plaintiff would need to file a separate complaint naming
proper defendants.

4

were problems between the two groups involved in the fights.
Therefore, the staff at HCF “was well aware of this issue.”
Cline was “well aware” because “Administration did not wanna
(sic) let us out in population due to . . . placing us in
danger.”

“Sam Cline being the warden failed to provide proper

caution as to our risk of being attacked.”
DISCUSSION
Because Mr. Galicia-Hernandez is a prisoner, the court is
required by statute

to dismiss the complaint or any portion

thereof at any time that the court determines it is frivolous or
fails to state a claim upon which relief may be granted.

28

U.S.C. § 1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(B).
Plaintiff names Sam Cline, Warden, HCF and Ray Roberts,
Secretary of Corrections, as the only defendants.
Memorandum

and

Order,

the

court

first

noted

In its prior
that

personal

participation is an essential element of a civil rights claim and
found

that

plaintiff

utterly

failed

to

describe

any

act

or

omission on the part of either defendant showing their personal
involvement in the alleged assault incident.

The U.S. Supreme

Court recently reaffirmed in Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009) that:
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 . . . §
1983
suits,
a
plaintiff
must
plead
that
each
5

Government-official defendant, through the official’s
own individual actions, has violated the Constitution.
Id.

In his Response, plaintiff concedes that “Cline and Roberts

did not commit the 8th Amendment violation.”

Nevertheless, he

continues to argue that these two defendants “became responsible
for it in the course of they (sic) supervisory responsibilities.”
As plaintiff was advised in the court’s prior Memorandum and
Order, prison officials may not be held liable based solely upon
a theory of respondeat superior.

Instead, “the defendant’s role

must be more than one of abstract authority over individuals who
actually

committed

a

constitutional

violation.”

Fogarty

v.

Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008).

Plaintiff’s

conclusory

are

allegations

and

vague

generalizations

simply

insufficient to show the requisite personal participation in the
alleged

constitutional

violation

by

either

named

defendant,

including his claims that the “Administration” should have known
of

“problems”

because

of

(inadequately-described)

“similar

assaults and fights” and that changes made after the assault upon
him in the rotunda and the assault on an undisclosed date upon
another inmate in the A3 cellhouse somehow establish Cline’s
prior awareness “of the problem.”
exist

between

the

constitutional

An “affirmative link” must
deprivation

and

“either

the

supervisor’s personal participation, his exercise of control or
direction, or his failure to supervise.”

6

Id. at 1527.

Plaintiff

alleges no facts to establish such a link between defendants and
the person or persons who actually made the decisions and took
action during the assault incident.
shown

if

“a

supervisor

has

This link might also be

established

unconstitutional policy or custom.”

or

utilized

Id. at 1528.

an

However,

plaintiff makes no attempt to describe an unconstitutional policy
or

custom

that

was

Secretary Roberts.
“Administration”

established

by

either

Warden

Cline

or

His bald suggestion in his complaint that

should

have

had

a

policy

to

prevent

happened to him is nothing more than a conclusory statement.

what
As

plaintiff was informed, the court will not supply additional
factual allegations to round out his complaint or construct a
legal theory on a his behalf.

Whitney v. New Mexico, 113 F.3d

1170, 1173-74 (10th Cir. 1997).

A pro se litigant’s “conclusory

allegations without supporting factual averments are insufficient
to state a claim upon which relief can be based.”
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

Hall v.

The court repeats

that the fact that defendants affirmed the denial of plaintiff’s
grievance after this incident is insufficient to render either
defendant liable for the assault.5

5

The court further notes that plaintiff did not mention either defendant
in his grievances and complained only about the decision, initial inaction,
and actions of Widner on that particular day. Thus, plaintiff’s own exhibits
indicate that he did not exhaust administrative remedies as mandated by 42
U.S.C. § 1997e(a) on the claim that he was injured as a result of defendants
lacking a policy to prevent the incident.

7

The court concludes that plaintiff has not alleged facts to
establish the requisite element of personal participation on the
part of either defendant Warden Cline or defendant Secretary
Roberts in the alleged unconstitutional failure to protect him
from the assault by two inmates that occurred on September 21,
2012, while he was being escorted through the rotunda by Officer
Widner.

His legal arguments and citations in his Response, which

are not controlling and even if as represented are contrary to
well-settled law, do not convince the court otherwise.6
Furthermore,
establishing
indifference.
held

to

have

that

plaintiff

still

fails

either

defendant

to

acted

allege

with

facts

deliberate

As plaintiff was advised, a prison official may be
violated

the

Eighth

Amendment

only

when

two

components are satisfied: an objective component under which the
inmate must show he was “incarcerated under conditions posing a
substantial risk of serious harm,” and a subjective component
under which the inmate must show that defendants acted with the
culpable state of mind referred to as “deliberate indifference.”
Deliberate indifference exists when an official “knows of and
disregards

an

excessive

risk

to

inmate

health

or

safety.”

Farmer, 511 U.S. at 837 (“A prison official cannot be found

6

A pro se plaintiff is not required to present legal citations, and
plaintiff’s efforts were doomed given the settled law on supervisory
liability. It follows that his lack of legal ability was not the cause of the
inadequacy of his claims.

8

liable under the Eighth Amendment for denying an inmate humane
conditions

of

confinement

unless

the

official

knows

of

and

disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.”); Gonzales v. Martinez, 403
F.3d

1179,

1186

(10th

Cir.

2005).

Deliberate

indifference

requires “a higher degree of fault than negligence.”
The court previously found that plaintiff failed to allege
facts indicating that either defendant was made aware of a risk
that plaintiff would be attacked while being escorted to the
population clinic.

Plaintiff does not allege any additional

facts

he

showing

September

2012

that

incident

made
of

defendants
an

earlier

aware

prior

to

attack

under

similar

circumstances or that he was in danger from his attackers.

the

His

vague allegations of prior attacks on others are not supported by
sufficient facts such as when and where each alleged assault
occurred, who was involved, and the outcome.
adequately

described

within

plaintiff’s

The only incident

allegations

is

the

isolated assault upon him by two other inmates while he was being
escorted through the rotunda.

His additional allegations that

Administration should have “separated our yards and class” and
that their eventually doing so shows awareness, fail to suggest
how this separation in A3 cellhouse would have prevented the
9

assault

upon

plaintiff

in

the

rotunda.

Moreover,

these

allegations are conclusory for the most part and are insufficient
to plausibly suggest that each defendant was aware of facts from
which the inference could be drawn that a substantial risk of
serious harm to plaintiff existed, and that each also drew the
inference.

The court concludes that the complaint’s “factual

allegations are clearly not “enough to raise a right to relief
above the speculative level” and to “state a claim to relief that
is plausible on its face.”

Atlantic Corp. v. Twombly, 550 U.S.

544, 555, 570 (2007).
The same is true of plaintiff’s claim, if any, of excessive
force.

Plaintiff alleges that his being sprayed with mace during

the incident was unnecessary and increased his endangerment.

On

the other hand, it plainly appears from the response to his
grievance that the attack was stopped by Widner’s use of mace.
In

any

event,

plaintiff

utterly

fails

to

allege

any

facts

indicating the direct personal participation of either defendant
in his being sprayed with mace.
In summary, this action is dismissed for failure to state
sufficient facts to show personal participation and deliberate
indifference on the part of either named defendant.
IT IS THEREFORE ORDERED BY THE COURT that this action is
dismissed and all relief is denied for failure to allege personal
participation

of

defendants

and
10

failure

to

allege

facts

sufficient to state a claim under the Eighth Amendment.
IT IS FURTHER ORDERED that plaintiff’s Motion for Leave to
Proceed without Prepayment of Fees (Doc. 3) is granted.
IT IS SO ORDERED.
Dated this 12th day of May, 2015, at Topeka, Kansas.

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

11