Sperry (ID 47031) v. Wildermuth et al

Filing 9

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted thirty (30) days in which to file an amended complaint. Signed by Magistrate Judge David J. Waxse on 06/13/17. Mailed to pro se party Jeffrey J. Sperry by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JEFFREY J. SPERRY,
Plaintiff,
v.

CASE NO.16-3222-SAC-DJW

LINDSEY WILDERMUTH, et al.,
Defendants.

MEMORANDUM & ORDER
Plaintiff, a state prisoner appearing pro se, brings this
42 U.S.C. § 1983 civil rights complaint.

Plaintiff also filed

an application for leave to proceed in forma pauperis and has
submitted the initial filing fee as directed.
leave to proceed in forma pauperis.

The Court grants

For the reasons discussed

below, Plaintiff is directed to file an amended complaint.
Statutory Screening of Prisoner Complaints
The

Court

is

required

to

screen

complaints

brought

by

prisoners seeking relief against a governmental entity or an
officer or employee of such entity to determine whether summary
dismissal is appropriate.

28 U.S.C. § 1915A(a).

Additionally,

with any litigant, such as Plaintiff, who is proceeding in forma

1

pauperis,

the

Court

has

a

determine its sufficiency.

duty

to

screen

the

complaint

See 28 U.S.C. § 1915(e)(2).

to

Upon

completion of this screening, the Court must dismiss any claim
that is frivolous or malicious, fails to state a claim upon
which relief may be granted, or seeks monetary damages from a
defendant

who

is

immune

from

such

relief.

28

U.S.C.

§§

1915A(b), 1915(e)(2)(B).
To survive this review, the plaintiff must plead “enough
facts to state a claim to relief that is plausible on its face.”
Bell

Atl.

Corp.

v.

Twombly,

550

U.S.

544,

570

(2007).

In

applying the Twombly standard, the Court must assume the truth
of all well-pleaded factual allegations in the complaint and
construe them in the light most favorable to the plaintiff.

See

Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th
Cir. 2011).
While

a

pro

se

plaintiff’s

complaint

must

be

liberally

construed, Erickson v. Pardus, 551 U.S. 89, 94 (2007), pro se
status does not relieve the plaintiff of “the burden of alleging
sufficient facts on which a recognized legal claim could be
based.”
The

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

Court

need

pleaded facts.”
(10th Cir. 1990).

not

accept

“mere

conclusions

characterizing

Bryson v. City of Edmond, 905 F.2d 1386, 1390
“[A] plaintiff’s obligation to provide the

grounds of his entitlement to relief requires more than labels
2

and conclusions, and a formulaic recitation of the elements of a
cause

of

action

will

not

do.”

Twombly,

550

U.S.

at

555

(internal quotation marks omitted).
“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 (1988); Northington v. Jackson, 973 F.2d
1518, 1523 (10th Cir. 1992).

In addressing a claim brought

under § 1983, the analysis begins by identifying the specific
constitutional right allegedly infringed.
U.S. 386, 393-94 (1989).

Graham v. Connor, 490

The validity of the claim then must

be judged by reference to the specific constitutional standard
which governs that right. Id.
Discussion
Plaintiff
Facility

is

(“EDCF”)

an
in

inmate
El

at

the

Dorado,

El

Dorado

Kansas.

Correctional
He

has

been

incarcerated since 1997 and was previously housed at the Lansing
Correctional Facility (“LCF”) in Lansing, Kansas.

Plaintiff was

transferred to EDCF on January 22, 2016, as a result of his
placement in administrative segregation.

He has been held in

administrative segregation continuously since October of 2015.
Mr. Sperry has studied law throughout his incarceration and has

3

helped many inmates pursue grievances and legal claims, as well
as pursuing numerous grievances and claims of his own.
Plaintiff’s

complaint

includes

fourteen

(14)

counts

bringing at least ninety-four (94) claims against twenty-four
(24) defendants.

The Court finds the complaint is deficient in

several regards.
1. Retaliation
The main claim Mr. Sperry seems to be making is one he
never specifically makes: retaliation.

Construing his complaint

liberally, he appears to allege his assignment to and continued
confinement in administrative segregation (with the resulting
hardships

inherent

in

such

placement),

interference

with

his

access to courts, interference with his mail, and deprivation of
his property are all the result of a retaliatory motive on the
part

of

primarily

retaliation is

two

defendants.

in response

Plaintiff

claims

the

to his actions in pursuing legal

claims on his own behalf and on behalf of other inmates.
The

Tenth

Circuit

has

found

“[i]t

is

well-settled

that

prison officials may not retaliate against or harass an inmate
because of the inmate’s exercise of his right of access to the
courts.”

Gee

2010)(internal

v.

Pacheco,

quotation

Maschner,

899

F.2d

plaintiff

had

filed

940,

627

marks
947

F.3d

omitted),

(10th

grievances
4

1178,

Cir.

against

1189

quoting

1990).
the

In

(10th

Cir.

Smith

v.

Gee,

the

defendants

and

a

habeas

corpus

petition.

He

alleged

he

was

subsequently

transferred to an out-of-state supermax prison in retaliation.
The

court

found

Mr.

Gee

had

stated

a

claim

for

retaliation

because he identified a constitutionally protected activity in
which he had engaged, described a responsive action that would
chill a person of ordinary firmness from continuing to engage in
that

activity,

and

recited

facts

indicating

the

action

was

substantially motivated as a response to his constitutionally
protected

conduct

(that

the

defendants

were

aware

of

his

protected activity, that his protected activity complained of
the defendants’ actions, and that the transfer was in close
temporal proximity to the protected activity).

Id.

The Tenth

Circuit found this was sufficient for him to proceed beyond the
pleading stage.

Id.

While courts afford prison officials great discretion in
the

management

actions

valid

penological
discretion

of
if

prisoners
they

interests,
to

punish

are

and

reasonably

prison
or

will

typically
related

officials

retaliate

exercising his constitutional rights.

do

against

to
not

a

find

their

legitimate
have

the

prisoner

for

Prison officials may not

retaliate or harass an inmate under the guise of a pretextual
motive.

See Gee, 627 F.3d at 1188.

Although Plaintiff’s complaint must be construed liberally,
the

Court

will

not

construct

legal
5

arguments

for

a

pro

se

litigant.

See Garrett v. Selby Connor Maddux & Janer, 425 F.3d

836, 840 (10th Cir. 2005).

If Plaintiff decides to pursue a

retaliation claim in an amended complaint, he must adequately
allege plausible facts supporting all elements of the claim.
2. Improper Joinder of Claims
While several of Plaintiff’s fourteen (14) counts relate to
his

placement

and

continued

confinement

in

administrative

segregation and other allegedly retaliatory actions on the part
of

some

of

the

defendants,

several

counts

are

completely

unrelated and are improperly joined.
The Federal Rules of Civil Procedure (FRCP) apply to suits
brought by prisoners.

FRCP Rule 20(a)(2) governs permissive

joinder of defendants and pertinently provides:
(2) Defendants. Persons ... may be joined in one
action as defendants if: (A) any right to relief is
asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or
occurrences; and (B) any question of law or fact
common to all defendants will arise in the action.
FRCP Rule 18(a) governs joinder of claims and pertinently
provides:

“A

party

asserting

a

claim

...

may

join,

as

independent or alternative claims, as many claims as it has
against an opposing party.”
purposes

of

contemplate
parties

judicial
joinder

which

of

present

While joinder is encouraged for

economy,

the

different
entirely
6

“Federal

actions

different

Rules

against
factual

do

not

different
and

legal

issues.”

Zhu

v.

Countrywide

Realty

Co.,

Inc.,

160

F.Supp.2d

1210, 1225 (D. Kan. 2001) (citation omitted).
Under

“the

“[u]nrelated

controlling

claims

different suits.”
2007).

against

principle”
different

in

FRCP

Rule

defendants

18(a),

belong

in

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

Requiring adherence in prisoner suits to the federal

rules regarding joinder of parties and claims prevents “the sort
of

morass

[a

produce[s].”

multiple

Id.

claim,

multiple

defendant]

suit

It also prevents prisoners from “dodging” the

fee obligations and the three strikes provisions of the Prison
Litigation
prisoners

Reform
pay

the

Act.

Id.

required

(FRCP
filing

Rule
fees

18(a)
—

ensures

for

the

“that
Prison

Litigation Reform Act limits to 3 the number of frivolous suits
or appeals that any prisoner may file without prepayment of the
required fees.”).

Under Rule 18(a), “multiple claims against a

single party are fine, but Claim A against Defendant 1 should
not be joined with unrelated Claim B against Defendant 2.”
Plaintiff

brings

against 24 defendants.

fourteen

(14)

largely

unrelated

Id.
counts

Following is a summary of Plaintiff’s

counts:
Count I (“Illegal Administrative Segregation”) – Plaintiff
essentially alleges he has been illegally placed and held in
administrative segregation at both LCF and EDCF.

7

Count

II

(“Inhumane

Living

Conditions”)

-

Plaintiff

complains of a cockroach infestation in the unit at LCF where he
was

initially

housed

after

being

placed

in

administrative

segregation.
Count III (“Sleep Deprivation”) - Plaintiff complains of
conditions at EDCF that interfere with his sleep.
Count IV (“Medical Indifference”) - Plaintiff complains of
actions

of

Corizon,

Inc.

and

its

employee

related

to

the

diagnosis and treatment of hepatitis-C.
Count V (“Censorship”) - Plaintiff complains of seizure of
mail items at both LCF and EDCF beginning before his placement
in administrative segregation, but possibly due to an improper,
retaliatory motive.
Count VI (“Access to Law Library”) – Plaintiff complains of
not having physical access to the law library at EDCF while in
administrative segregation.
Count

VII

(“Property

Limits

and

Legal

Property”)

–

Plaintiff complains of the enforcement of property limits at
EDCF.
Count
Plaintiff

VIII

(“Stolen,

complains

of

lost

property

administrative segregation at LCF.

8

or
lost

destroyed
when

he

property”)
was

sent

–
to

Count IX – (“Embezzlement of interest on Inmate Account”) –
This is a general complaint about KDOC policy applicable to all
inmates.
Count

X

–

(“Biased

Disciplinary

Hearings”)

–

Plaintiff

complains in general terms about disciplinary hearings.
Count XI – (“Corrupt and Unlawful Grievance System”) – This
is

a

generalized

complaint

about

KDOC

policy

and

practices

related to grievances.
Count XII

–

(“Denial of Rights and Privileges”)

–

This

appears to be very similar to Count I but is based on violation
of

a

Kansas

regulation

regarding

privileges

and

rights

of

prisoners in administrative segregation.
Count

XIII

–

(“Union

Supply

–

Canteen”)

–

Plaintiff

complains generally about practices of the company contracted to
provide canteen services in Kansas prisons.
Count

XIV

–

(“Brothers

in

Blue”)

–

Plaintiff

complains

about the Brothers in Blue organization and its affiliation with
KDOC.
Plaintiff has an opportunity to file an amended complaint.
In

preparing

an

amended

complaint,

Plaintiff

is

advised

to

carefully assess which claims are properly joined in one action.
This assessment necessitates an evaluation of which defendants
are properly named, as further discussed in the next section.

9

It is not for this Court to decide which claims Plaintiff
will include in his amended complaint.
to

this

Order

in

deciding

which

He is required to adhere

claims

he

will

continue

to

pursue in this case, and then omit any other claims that are not
properly joined.

Plaintiff is not precluded from litigating any

improperly-joined claim; he is simply required to do so in a
separate civil action.
Order,

the

Court

If Plaintiff does not comply with this

will

dismiss

claims

that

it

finds

to

be

improperly joined.
3. Improper Defendants
To be properly named as a defendant in a § 1983 action, a
person must personally participate in the alleged violation of
constitutional rights.
(10th Cir. 1997).
1983 liability.
Cir.

2008).

connection

to

sufficient

to

Foote v. Spiegel, 118 F.3d 1416, 1423

Supervisory status alone does not create §

Duffield v. Jackson, 545 F.3d 1234, 1239 (10th
Moreover,
the

denial

alleged

establish

of

grievances,

constitutional

personal

without

violation,

participation

under

is
§

any
not
1983.

Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009).
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
10

violated.”

Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe

County Justice Center, 492 F.3d 1158, 1163 (10th Cir. 2007).
For a corporation to be held liable under § 1983, it must
be acting under color of state law and cannot be held liable
under a theory of respondeat superior for the actions of its
individual employees.

Dubbs v. Head Start, Inc., 336 F.3d 1194,

1216 (10th Cir. 2003).

A corporation can be held liable under §

1983 only for unconstitutional policies and practices.

Id. at

1215.
Plaintiff
complaint.

includes

many

improper

defendants

in

his

For instance, in his “Claims for Relief” for Count

I, Plaintiff names Collette Winklebauer as a defendant but his
statement of facts for this count includes no allegations about
her.

Plaintiff also names Defendants Pryor, Patterson, Hoshaw,

Jackson,

and

Heimgartner,

but

the

only

allegations

he

makes

about these defendants involve the denial or failure to respond
to grievances.
personally

Plaintiff does not allege these defendants were

involved

segregation.

in

assigning

him

to

administrative

As a result, they do not appear to be properly

named as defendants in Count I.
This
Plaintiff’s
defendants

problem

is

fourteen
or

fails

not

confined

(14)

counts

to

include

any

to

Count

either

I.

Each

includes

defendants

at

of

improper

all.

For

example, in his statement of facts for Count XI, Plaintiff does
11

not

make

any

defendants.

specific
His

allegations

allegations

about

only

any

mention

of

the

“KDOC

named

and

its

corporations

as

employees” and “Defendants” generally.
In

addition,

defendants.

Plaintiff

names

two

Plaintiff has not described any unconstitutional

policy promulgated by either corporate defendant or explained
how such policy was the moving force behind a violation of his
civil rights.
Plaintiff is cautioned to follow the guidelines above in
naming defendants in his amended complaint.
4. Standing
Another problem with Plaintiff’s complaint is that he makes
numerous

allegations

about

experiences

of

other

inmates

claims on behalf of the inmate population in general.

and

To the

extent Plaintiff raises claims on behalf of others, a review of
the allegations contained in his complaint indicates he lacks
standing to do so.
“specific

facts

conditions

with

To have standing, a prisoner must state

connecting
his

own

the

allegedly

experiences

[in

unconstitutional
the

indicat[e] how the conditions caused him injury.”
Dubach,

992

F.2d

286,

289

(10th

Cir.

1993).

prison],

or

Swoboda v.
“[G]eneral

observations” about prison conditions are not actionable under
42 U.S.C. § 1983.

Id. at 289–90.

12

Such

general

grievances

are

best

legislative, not the judicial, branch.

addressed

to

the

Bd. of County Comm’rs v.

Geringer, 297 F.3d 1108, 1112 (10th Cir. 2002)(citing Allen v.
Wright,

468

dismissed

U.S.

for

737,

lack

751

of

(1984)).

Such

prudential

claims

standing.

should
See,

be

e.g.,

Whitington v. Ortiz, 307 F. App’x. 179, 191 (10th Cir. 2009) (pro
se

prisoner

regulate

plaintiff

the

entire

“lack[ed]
CDOC

standing

system,

or

to

to

attempt
sue

to

re-

directly

or

indirectly on behalf of anyone but himself”); Martinez v. Mesa
County Sheriff's Dep’t, 1995 WL 640293 at *1 (10th Cir. 1995)
(court

is

not

empowered

to

decide

“generalized

grievances

concerning prison management”).
Plaintiff

should

keep

these

drafting his amended complaint.

principles

in

mind

when

His claims will be considered

only to the extent they allege a violation of his constitutional
rights.
5. Failure to State a Claim
In each of his 14 counts, Plaintiff makes at least six (6)
claims.

For instance, in Count I, Plaintiff claims eight (8)

defendants violated his Eighth Amendment rights, his right to
due process, his right to equal protection, his First Amendment
right to association; as well as claiming Defendants’ actions
constitute a criminal conspiracy to violate his civil rights and
the

Kansas

torts

of

outrageous
13

conduct,

mistreatment

of

a

confined

person,

negligence.
alleges

breach

of

fiduciary

relationship,

and

In other counts, Plaintiff makes RICO claims and

battery,

unlawful

monopoly,

and

violations

of

Kansas

statutes and regulations.
It is patently obvious Plaintiff is employing the shotgun
approach,

including

something

hits

a

the

long

list

mark.

of

This

claims

in

approach

hopes

that

not

help

does

Plaintiff’s credibility or his ability to adequately support any
claim.
In

his

amended

complaint,

Plaintiff

is

advised

that

he

would be better served to focus on the most relevant claims so
he can ensure that he alleges the facts necessary to support
each element of each claim.
Summary
Plaintiff
complaint

that

is

given

cures

the

the

opportunity

deficiencies

to

file

discussed

an

amended

above.

An

amended complaint is not combined with the original complaint
but completely supersedes it.

See FRCP Rule 15.

As a result,

Plaintiff must present all properly joined claims and supporting
factual allegations in his amended complaint.1
fails

to

file

an

amended

complaint

1

that

cures

If Plaintiff
all

of

the

The Court directs Plaintiff’s attention to D. Kan. Rule 7.1(e), which limits
the arguments and authorities section of briefs to 30 pages.

14

deficiencies

within

the

time

allotted,

this

action

may

be

dismissed without further notice.
IT IS THEREFORE ORDERED that Plaintiff is granted thirty
(30) days in which to file an amended complaint.
IT IS SO ORDERED.
DATED:

This 13th day of June, 2017, at Kansas City, Kansas.

s/ David J. Waxse

DAVID J. WAXSE
U.S. Magistrate Judge

15