Sellers (ID 99071) v. Cline et al

Filing 46

MEMORANDUM AND ORDER granting in part and denying in part 33 Motion for Order; granting 35 Motion for Leave to Amend Complaint; finding as moot 37 Motion to Stay Discovery; granting 41 Motion to Appoint Counsel ; denying 24 Motion for Default Judgment; granting 31 Motion to Dismiss Party. Signed by District Judge Monti L. Belot on 08/18/2014. (aa)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JERRY D. SELLERS, JR.,
Plaintiff,
v.
SAM CLINE, Warden Hutchinson
Correctional Facility, in his
official capacity;
RAY ROBERTS, Secretary of
Corrections for the State of
Kansas, in his official capacity;
and JOHN DOES 1-4,
Correctional Officers,
Hutchinson Correctional Facility,
in their official capacities,
Defendants.

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CIVIL ACTION
No.

13-3076

MEMORANDUM AND ORDER
Before the court are the following:
Plaintiff’s motions: for default judgment (Doc. 24), for
order compelling disclosure (Doc. 33), for leave to amend
the complaint (Doc. 35), and for appointment of counsel
(Doc. 41).
Defendants’ motions: to dismiss defendants Cline and
Roberts (Doc. 31), and to stay discovery (Doc. 37).

I. Facts.
Plaintiff’s complaint alleges that he was incarcerated at
Hutchinson Correctional Facility on November 4, 2011, when he was
attacked by two other inmates. He contends a correctional officer
enabled the attack by remotely opening plaintiff’s cell door three
times within a matter of minutes, which allowed other inmates to enter
and exit the cell. The officer did this despite allegedly knowing that

inmates were planning an attack on plaintiff on that day. Plaintiff,
who is under a life sentence for sex offenses involving minors, had
just been transferred to the Hutchinson facility two days before the
attack.
The complaint asserts claims for violation of constitutional
rights

including

the

right

to

be

free

from

cruel

and

unusual

punishment, denial of due process and equal protection. The complaint
alleges that correctional officers were inadequately trained, they
were deliberately indifferent, they engaged in wanton and willful
misconduct, and they failed to protect plaintiff from assault and
unsafe conditions. Doc. 1 at 10.
The complaint alleges that two corrections officers responsible
for operating the cell doors – identified in the complaint as John
Does 1 and 2 – conspired to allow inmates to enter plaintiff’s cell
for the purpose of beating him. Doc. 1 at 14. It alleges that John Doe
1 had only been on the job for one month, was improperly trained, and
did not have a trainer with him at the time of the incident. The
complaint further alleges that two supervisory officers – identified
as John Does 3 and 4 – knew of a planned attack on plaintiff but
failed to prevent it, causing a violation of plaintiff’s rights. Doc.
1 at 15.
Plaintiff alleges that defendant Cline had a responsibility to
ensure the health and safety of inmates and to see that staff properly
trained subordinates to carry out institutional rules. Doc. 1 at 7.
He alleges that defendant Roberts should have but did not properly
investigate his complaint after the incident. The complaint alleges
that Cline and Roberts stated there was no evidence to support
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plaintiff’s claims; “[t]hus, the warden and [Secretary of Corrections]
are liable for the altercation at hand.” Doc. 1 at 16.
On December 28, 2011, plaintiff was transferred to Ellsworth
Correctional Facility, where he remains incarcerated.
II. Pending Motions.

1. Plaintiff’s Motion for Default Judgment (Doc. 24).
Plaintiff’s motion for entry of default against Cline and
Roberts is denied. Requests for waiver of service of summons were sent
to Cline and Roberts on March 4, 2014, and were promptly executed,
meaning defendants had 60 days thereafter to file an answer or motion.
Fed. R. Civ. P. 4(d)(3); Docs. 14-17. Prior to the 60-day deadline
Cline and Roberts obtained an extension of time (Doc. 27) and
thereafter timely filed a motion to dismiss. (Doc. 31). They were not
in default.

2. Plaintiff’s motion for order compelling disclosure (Doc. 33).
Plaintiff moves for an order compelling disclosure of a digital
video disc (DVD) that was produced by the Kansas Department of
Corrections (KDOC) with its Martinez report. The DVD was filed
conventionally under seal. The disc contains security camera video
from the Hutchinson Correctional Facility. The video captured a
portion of the relevant incident.
The DVD is clearly essential to the claims asserted and KDOC will
have to make arrangements for plaintiff to view the video. The KDOC
is directed to make appropriate arrangements for plaintiff to view the
video in the next 30 days.
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3. Cline and Roberts’ motion to dismiss (Doc. 31).
Cline and Roberts, who are sued in their official capacities
only,1 move to dismiss the official-capacity claims for lack of
subject matter jurisdiction. They argue the claims are barred by
Eleventh Amendment immunity. Plaintiff responds, among other things,
that the claims are not barred because he is seeking injunctive and
declaratory relief. (Docs. 43, 45).
The Eleventh Amendment provides in part: “The Judicial power of
the United States shall not be construed to extend to any suit in law
or equity, commenced or prosecuted against one of the United States...
.” U.S. Const. amend. XI. Claims against state officers in their
official capacities are essentially claims against the state itself.
See City of Herriman v. Bell, 590 F.3d 1176, 1183 (10th Cir. 2010)
(“suits against state officials in their official capacities are no
different than suits against the state itself”). Eleventh Amendment
sovereign immunity thus ordinarily bars actions in federal court
against a state, its agencies and its officials acting in their
official capacities. See Kentucky v. Graham, 473 U.S. 159, (1985)
(absent waiver by the State or valid congressional override, the
Eleventh Amendment bars a damages action against a State in federal
court).

This

is

so

“regardless

of

whether

a

plaintiff

seeks

declaratory or injunctive relief, or money damages.” Steadfast Ins.
1

Although the complaint only identifies the defendants as being
sued in their official capacities, plaintiff’s response to the motion
to dismiss indicates that he intends to sue the four John Doe
correctional officers in their individual capacities, while confirming
that Cline and Roberts are sued only in their official capacities.
Doc. 43 at 2.
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Co. v. Agricultural Ins. Co., 507 F.3d 1250, 1252 (10th Cir. 2007)
(citing Fed. Mar. Comm’n. v. S.C. State Ports Auth., 535 U.S. 743,
765-66 (2002)).
In Ex parte Young, 209 U.S. 123 (1908) the Supreme Court
recognized an exception to Eleventh Amendment immunity when a suit
seeks prospective injunctive relief to halt ongoing violations of
federal law. In determining whether this exception applies, the court
conducts a “straightforward inquiry into whether [the] complaint
alleges an ongoing violation of federal law and seeks relief properly
characterized as prospective.” Verizon Md., Inc. v. Pub. Serv. Comm'n,
535 U.S. 635, 645 (2002).
Plaintiff’s complaint contains no facts showing an ongoing
violation of his constitutional rights and, aside from one vague and
unsupported reference, seeks no injunctive relief to prevent future
violations.2 The complaint seeks relief for past harms rather than for
ongoing violations. Plaintiff’s official capacity claims against Cline
and Roberts thus do not fall under the Ex parte Young exception and
are barred by the Eleventh Amendment.
As

plaintiff

concedes,

he

cannot

maintain

an

action

for

prospective injunctive relief without showing a likelihood of future
harm. Doc. 43 at 5. In an attempt to do so, plaintiff asserts that
Cline and Roberts “still can have a future impact” on him because he
is under a life sentence. Such speculative allegations provide no
basis for prospective injunctive relief. Riggs v. City of Albuquerque,
2

The complaint’s prayer for relief includes a request for a
“preliminary and permanent injunction ordering Defendant(s): Ray
Roberts and Sam Cline to adhere to the injunction described herein,”
Doc. 1 at 21, but otherwise describes no injunction.
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916 F.2d 582, 586 (10th Cir. 1990) (plaintiff seeking prospective
injunctive relief “must show more than past harm or speculative future
harm.”).
Plaintiff’s response brief also claims an ongoing denial of his
right to equal protection of the laws “by the denial of ... such
things as jobs [and] vo-tech training” for individuals such as him
“belonging to a known group that is always a target.” Doc. 43 at 2.
This is an apparent reference to plaintiff’s sex offense conviction
and the fact that inmates in KDOC custody who are threatened may be
placed in protective custody, which in turn may restrict their job or
training

opportunities.

Plaintiff

argues

“there

needs

to

be

an

additional facility” for the placement of such individuals to “allow
these offenders the same rights as any other offender in KDOC in
regards to visits, jobs, educations, and rehabilitation programs.”
Doc. 43 at 6.
These allegations cannot support a valid claim for relief. Where
an equal protection claim does not involve a suspect classification
or

a

fundamental

right

–

and

this

claim

involves

neither

–

governmental action is valid if supported by any rational basis.
Placing an inmate in protective custody is a rational response when
prison officials become aware that the inmate is threatened with harm
by others. Cf. Riddle v. Mondragon, 83 F.3d 1197, 1207 (10th Cir.
1996) (plaintiff’s allegation that sex offenders were improperly
classified as violent offenders failed to show irrational or arbitrary
conduct); Tavares v. Amato, 954 F.Supp.2d 79, 100 (N.D.N.Y. 2013)
(genuine issue of fact existed where prison summarily housed all sex
offenders

in

administrative

segregation
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in

the

absence

of

any

compelling safety concern). Indeed, plaintiff’s response notes that
three months after his transfer to Ellsworth, he was threatened by
other inmates and was placed in protective custody because “an officer
recognized the situation and eliminated a possible altercation.” Doc.
43 at 7.
Plaintiff’s complaint fails to state any claim against the State
of Kansas for ongoing constitutional violations or for prospective
injunctive relief. Moreover, plaintiff suggests no possible amendment
of the complaint that would allow him to cure this deficiency and
state a viable claim against the State under Ex parte Young. The court
will therefore grant the motion to dismiss the official capacity
claims against Cline and Roberts.

4. Plaintiff’s motion for leave to amend complaint (Doc. 35).
Plaintiff

requests

leave

to

file

an

amended

complaint

substituting the names of the correctional officers identified as
“John Doe” defendants in the original complaint. The names of the
officers were set forth in the KDOC’s recently filed Martinez report.
No

response

to

plaintiff’s

motion

has

been

filed.

Because

plaintiff’s request is timely under Fed. R. Civ. P. 15(a)(2), and
because plaintiff shows good cause for the amendment, the court grants
the request. Plaintiff is given until September 15, 2014, to file an
amended complaint naming the John Doe defendants.

5. Defendants’ motion to stay discovery (Doc. 37).
Cline and Roberts’ motion to stay discovery pending a ruling on
their motion to dismiss is denied as moot.
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6. Plaintiff’s motion for appointment of counsel (Doc. 41).
Plaintiff again moves for appointment of counsel. The court
previously denied a similar request. Doc. 10.
There is no constitutional right to appointment of counsel in a
civil case, although the court may in its discretion appoint counsel.
The court considers the merits of the

plaintiff’s claims, the nature

of the factual issues raised, the plaintiff’s ability to present his
claims, and the complexity of the legal issues raised by the claims.
Williams v. Meese, 926 F.3d 994, 996 (10th Cir. 1991).
Having
concludes

had

that

the

benefit

plaintiff’s

of

the

motion

to

Martinez

report,

the

court

appoint

counsel

should

be

granted. The Martinez report indicates that on the evening of November
4, 2011, Corporal Fears heard that plaintiff, who had just been
transferred to the facility, would be attacked if he went to the
showers. Fears allegedly briefed Sgt. Baker and Officer Mitchell on
the threat and said that plaintiff’s cell should not be opened. Fears
also said he “set the control on that cell to the ‘locked’ position
so

that

it

wouldn’t

be

accidentally

opened.”

Despite

these

precautions, Mitchell, who was operating the control panel that opened
and closed cell doors, subsequently opened plaintiff’s cell door three
times, allowing two other inmates to enter and exit plaintiff’s cell.
Plaintiff suffered a beating by one or both of the inmates.
Mitchell, who was new to the job, later stated that he remembered
Fears mentioning a possible fight but did not remember anything
specific. Sgt. Baker said he was aware from Fears of a rumor than an
inmate would be assaulted if he went out for a shower that evening but
did not know specifically which inmate was being threatened. Mitchell,
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who was unsupervised at the time of the incident, said there was a lot
of inmate movement and that he watched as best he could and opened
cell doors as inmates called out their cell number. He denied
intentionally allowing other inmates to enter plaintiff’s cell.
While the merits of plaintiff’s claims have yet to be determined,
the

Martinez

report

itself

shows

there

was,

at

a

minimum,

a

questionable failure to protect plaintiff in the face of a threat
known to one or more correctional officers. Plaintiff is entitled to
conduct discovery on his claims, and considering the nature of the
claims and plaintiff’s ability to access information, the court
concludes that appointment of counsel is appropriate.

III. Conclusion.
1. Plaintiff's Motion for Default Judgment (Doc. 24) is denied.
2. Plaintiff's Motion for Order Compelling Disclosure (Doc. 33)
is

granted

in

part.

The

KDOC

is

directed

to

make

appropriate

arrangements in the next 30 days for plaintiff to view the security
video that was submitted as part of the Martinez report.
3. Cline and Roberts' Motion to Dismiss (Doc. 31) is granted.
Plaintiff’s

claims

against

Cline

and

Roberts

in

their

official

capacities are dismissed for lack of subject matter jurisdiction.
4. Plaintiff's Motion for Leave to Amend Complaint (Doc. 35) is
granted. Plaintiff is granted until September 15, 2014, to file an
amended complaint naming the John Doe defendants.
5.

Plaintiff's Motion for Appointment of Counsel (Doc. 41) is

granted. A separate order will be issued naming the counsel to be
appointed after the court has located an appropriate attorney to
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represent plaintiff.

IT IS SO ORDERED.
Dated this 18th day of August 2014, at Wichita, Kansas.

s/Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE

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