Hill v. Butler County Jail

Filing 5

NOTICE AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted until March 28, 2017, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why Plaintiff's Complaint 1 should not be dismissed. Signed by Magistrate Judge David J. Waxse on 02/28/17. Mailed to pro se party TJ Terry Hill by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TJ TERRY HILL,
Plaintiff,
v.

CASE NO. 16-3252-SAC-DJW

BUTLER COUNTY JAIL,
Defendant.
NOTICE AND ORDER TO SHOW CAUSE
Plaintiff TJ Terry Hill is hereby required to show good cause, in writing, to the
Honorable Sam A. Crow, United States District Judge, why this action should not be dismissed
due to the deficiencies in Plaintiff’s Complaint that are discussed herein.
I. Nature of the Matter before the Court
Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. At the time of
filing, Plaintiff was incarcerated at the Butler County Detention Center in El Dorado, Kansas
(“BCDF”).1

Plaintiff’s single count alleges excessive force and names BCDF as the sole

defendant. Plaintiff seeks monetary damages.
Plaintiff alleges that because he refused to go to his cell in A Pod, a female officer called
for a sergeant. Sergeant Roberson, Deputy Solder, Deputy Wilson, Deputy Cole and Sergeant
Shearbum tried to talk Plaintiff into going to his room and he still refused. Staff tried to take him
to the ground but Plaintiff refused to let them. After about ten minutes of staff trying to take
Plaintiff to the ground, Plaintiff heard someone say “taze him” and then Plaintiff stopped
refusing and allowed staff to put handcuffs on him. Plaintiff told Officer Wilson that it took
them a long time to get handcuffs on Plaintiff and they were only successful because Plaintiff let
1

Plaintiff refers to the facility as the “Butler County Jail.” Plaintiff is currently incarcerated at the El Dorado
Correctional Facility in El Dorado, Kansas.

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them. Plaintiff “bucked” his head at Officer Wilson and Officer Wilson then pushed Plaintiff in
the chest.
II. 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 an employee of a governmental entity. 28 U.S.C.
§ 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised
claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be
granted, or that seek monetary relief from a defendant who is immune from such relief. 28
U.S.C. § 1915A(b)(1)–(2).
“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)
(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). In addition, the court accepts
all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th
Cir. 2006). On the other hand, “when the allegations in a complaint, however true, could not
raise a claim of entitlement to relief,” dismissal is appropriate. Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 558 (2007).
A pro se litigant’s “conclusory allegations 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). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires “more than labels and conclusions, and a formulaic recitation of the elements of a

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cause of action.” Twombly, 550 U.S. at 555 (citations omitted). The complaint’s “factual
allegations must be enough to raise a right to relief above the speculative level” and “to state a
claim to relief that is plausible on its face.” Id. at 555, 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, 492 F.3d
1158, 1163 (10th Cir. 2007). 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) (citation omitted).
The Tenth Circuit has pointed out that the Supreme Court’s decisions in Twombly and
Erickson gave rise to a new standard of review for § 1915(e)(2)(B)(ii) dismissals. See Kay v.
Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (citations omitted); see also Smith v. United States,
561 F.3d 1090, 1098 (10th Cir. 2009). As a result, courts “look to the specific allegations in the
complaint to determine whether they plausibly support a legal claim for relief.” Kay, 500 F.3d at
1218 (citation omitted). Under this new standard, “a plaintiff must ‘nudge his claims across the
line from conceivable to plausible.’” Smith, 561 F.3d at 1098 (citation omitted). “Plausible” in
this context does not mean “likely to be true,” but rather refers “to the scope of the allegations in
a complaint: if they are so general that they encompass a wide swath of conduct, much of it
innocent,” then the plaintiff has not “nudged [his] claims across the line from conceivable to
plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S.
Ct. at 1974).

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III. DISCUSSION
1. Exhaustion of Administrative Remedies
Under 42 U.S.C. § 1997e(a), a prisoner must exhaust his administrative remedies prior to
filing a lawsuit in federal court regarding prison conditions.

42 U.S.C. § 1997e(a).

Section 1997e(a) expressly provides:
No action shall be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are
exhausted.
Id. This exhaustion requirement “is mandatory, and the district court [is] not authorized to
dispense with it.” Beaudry v. Corrections Corp. of Am., 331 F.3d 1164, 1167 n.5 (10th Cir.
2003), cert. denied, 540 U.S. 1118 (2004); Little v. Jones, 607 F.3d 1245, 1249 (10th Cir. 2010).2
While failure to exhaust is an affirmative defense rather than a pleading requirement, and a
plaintiff is not required to plead it in the complaint, when that failure is clear from materials filed
by plaintiff, the court may sua sponte require plaintiff to show that he has exhausted. See
Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007) (acknowledging district
courts may raise exhaustion question sua sponte, consistent with 42 U.S.C. § 1997e(c)(1) and 28
U.S.C. §§ 1915 and 1915A, and dismiss prisoner complaint for failure to state a claim if it is
clear from face of complaint that prisoner has not exhausted administrative remedies).
This action is subject to dismissal because it appears from the face of the Complaint that
Plaintiff failed to fully and properly exhaust all available prison administrative remedies on his
claim prior to filing this action in federal court. Plaintiff marked “N/A” in response to the

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To satisfy this requirement, a prisoner must fully comply with the institution’s grievance procedures. Jones v.
Bock, 549 U.S. 199, 218 (2007); Woodford v. Ngo, 548 U.S. 81, 90 (2006); Little, 607 F.3d at 1249 (The “inmate
may only exhaust by properly following all the steps laid out in the prison system’s grievance procedures.”)(citing
Woodford v. Ngo, 548 U.S. 81, 90 (2006). “An inmate who begins the grievance process but does not complete it is
barred from pursuing a § 1983 claim. . . .” Id. (citing Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002)).

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question regarding exhaustion of administrative remedies on his form complaint. (Doc. 1, at 5.)
Because failure to exhaust appears from the face of the Complaint, Plaintiff is required to show
that he has fully and properly exhausted on each of the grounds raised in the Complaint.
2. Improper Defendants
Plaintiff names BCDF as the sole Defendant in this case. “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) (emphasis added). The detention facility is
not a “person” within the meaning of § 1983. See Will v. Michigan Dept. of State Police, 491
U.S. 58, 66, 71 (1989); Clark v. Anderson, No. 09-3141-SAC, 2009 WL 2355501, at *1 (D. Kan.
July 29, 2009); see also Aston v. Cunningham, No. 99–4156, 2000 WL 796086 at *4 n.3 (10th
Cir. Jun. 21, 2000) (“a detention facility is not a person or legally created entity capable of being
sued”); Busekros v. Iscon, No. 95-3277-GTV, 1995 WL 462241, at *1 (D. Kan. July 18, 1995)
(“[T]he Reno County Jail must be dismissed, as a jail is not a ‘person’ within the meaning of
§ 1983.”). Accordingly, this action is subject to dismissal as against Defendant BCDF.
3. Damages
Plaintiff only seeks compensatory damages, which are barred by 42 U.S.C. § 1997e(e)
because Plaintiff has failed to allege a physical injury. Section 1997e(e) provides in pertinent
part that “[n]o 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. § 1997e(e).

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4. Excessive Force
Plaintiff also fails to state a claim of excessive force under the Eighth Amendment’s
Cruel and Unusual Punishments Clause. See Estate of Booker v. Gomez, 745 F.3d 405, 419
(10th Cir. 2014) (stating that “claims of excessive force involving convicted prisoners arise
under the Eighth Amendment”).

The Eighth Amendment’s prohibition against “cruel and

unusual punishments” applies to the treatment of inmates by prison officials. See Whitley v.
Albers, 475 U.S. 312, 319–21 (1986). Prison officials violate inmates’ Eighth Amendment rights
when they subject them to the “unnecessary and wanton infliction of pain.”

Id. at 319.

“[W]henever prison officials stand accused of using excessive physical force in violation of the
Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force was
applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to
cause harm.” Hudson v. McMillian, 503 U.S. 1, 6–7 (1992) (citation omitted). “The Eighth
Amendment’s prohibition of ‘cruel and unusual’ punishments necessarily excludes from
constitutional recognition de minimis uses of physical force, provided that the use of force is not
of a sort ‘repugnant to the conscience of mankind.’” Id. at 9–10.
Plaintiff’s allegation that he was pushed by a correctional officer during a verbal
altercation after Plaintiff admittedly refused to return to his cell or otherwise cooperate with
staff, fails to state a claim of excessive force. Not every isolated battery or injury to an inmate
amounts to a federal constitutional violation. See id. at 9 (stating that not “every malevolent
touch by a prison guard gives rise to a federal cause of action.”) (citing Johnson v. Glick, 481
F.2d 1028, 1033 (2nd Cir. 1973) (“Not every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional rights”)).

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IV. Response Required
For the reasons stated herein, it appears that this action is subject to dismissal in its
entirety. Plaintiff is therefore required to show good cause why his Complaint (Doc. 1) should
not be dismissed for the reasons stated herein. The failure to file a timely, specific response
waives de novo review by the District Judge, see Thomas v. Arn, 474 U.S. 140, 148–53 (1985),
and also waives appellate review of both factual and legal questions. Makin v. Col. Dept. of
Corr., 183 F.3d 1205, 1210 (10th Cir. 1999).
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is granted until
March 28, 2017, in which to show good cause, in writing, to the Honorable Sam A. Crow,
United States District Judge, why Plaintiff’s Complaint (Doc. 1) should not be dismissed for the
reasons stated herein.
IT IS SO ORDERED.
Dated in Kansas City, Kansas, on this 28th day of February, 2017.

s/ David J. Waxse
David J. Waxse
U. S. Magistrate Judge

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