Jefferson v. Kansas, State of et al

Filing 7

NOTICE AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted untilMarch 15, 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 02/16/17. Mailed to pro se party Tyler Earl Jefferson by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TYLER EARL JEFFERSON,
Plaintiff,
v.

CASE NO. 17-3004-SAC-DJW

KANSAS, STATE OF, and
DOUGLAS COUNTY CORRECTIONAL
FACILITY,
Defendant.

NOTICE AND ORDER TO SHOW CAUSE
Plaintiff Tyler Earl Jefferson 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. Plaintiff is
currently incarcerated at the El Dorado Correctional Facility in El Dorado, Kansas (“EDCF”).
Plaintiff filed his Complaint (Doc. 1) while incarcerated at the Douglas County Correctional
Facility in Lawrence, Kansas (“DCCF”). Plaintiff alleges that while detained at DCCF he was
forced to walk on urine and human waste to get to and from his assigned cell, putting him in
danger of airborne illnesses. Plaintiff’s single count alleges “endanger to food supply and
mistreatment of confined inmate.” Plaintiff alleges that “such conditions” were present on

December 20, 2016, and are a “weekly occurrence.” Plaintiff names as Defendants the State of
Kansas and DCCF.
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

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).

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).1
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 “none” in response to the

1

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)).

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
a. State of Kansas
To bring a § 1983 claim, a plaintiff must show a “deprivation of a civil right by a
‘person’ acting under color of state law.” McLaughlin v. Bd. of Trustees of State Coll. of Colo.,
215 F.3d 1168, 1172 (10th Cir. 2000). The Supreme Court has held that “neither a State nor its
officials acting in their official capacities are ‘persons’ under § 1983.” Will v. Michigan Dep’t of
State Police, 491 U.S. 58, 71 (1989); see also Howlett v. Rose, 496 U.S. 356, 365 (1990) (“Will
establishes that the State and arms of the State, which have traditionally enjoyed Eleventh
Amendment immunity, are not subject to suit under § 1983.”).

Furthermore, the Eleventh

Amendment presents a jurisdictional bar to suits against a state and “arms of the state” unless the
state waives its immunity. Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013) (quoting
Wagoner Cnty. Rural Water Dist. No. 2 v. Grand River Dam Auth., 577 F.3d 1255, 1258 (10th
Cir. 2009)). Therefore, in the absence of some consent, a suit in which an agent or department of
the state is named as a defendant is “proscribed by the Eleventh Amendment.” Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Therefore, this action is subject to
dismissal against defendant State of Kansas because this defendant is not a “person” amenable to
suit under § 1983 and it is immune from suit under the Eleventh Amendment.
b. DCCF
Plaintiff names DCCF as the other 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 DCCF.
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).
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 15, 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 16th day of February, 2017.

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