Guy (ID 0110558) v. Cline et al

Filing 5

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted until November 27, 2017, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States District Jude, why Plaintiff's Complaint should not be dism issed. Plaintiff is also granted until November 27, 2017, in which to file a complete and proper Amended Complaint to cure all the deficiencies. Signed by U.S. Senior District Judge Sam A. Crow on 10/24/17. Mailed to pro se party Dallas Guy by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DALLAS GUY,
Plaintiff,
v.

CASE NO. 17-3060-SAC

SAM CLINE, et al.,
Defendants.

MEMORANDUM AND ORDER
AND ORDER TO SHOW CAUSE
Plaintiff Dallas Guy is hereby required to show good cause, in writing, to the Honorable
Sam A. Crow, United States District Judge, why this case 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. The Court
granted Plaintiff leave to proceed in forma pauperis. Plaintiff is incarcerated at the Lansing
Correctional Facility in Lansing, Kansas (“LCF”).

Plaintiff alleges the following in his

Complaint. On October 15, 2016, Plaintiff was assaulted in B-2 cell house at LCF, by individuals
who used weapons. Plaintiff received injuries and was housed in the infirmary and placed on
segregation status.

On October 17, 2016, Defendant Enforcement, Apprehension, and

Investigations employee (“EAI”) Bousfield conducted a segregation review with Plaintiff.
Plaintiff advised Bousfield that his life was in danger and that he needed protection. Bousfield
responded that he knew that, because the head of the Gangster Disciples, whom Bousfield
acknowledged by name, “doesn’t like people walking away.” On October 18, Plaintiff was
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released from the infirmary to segregation, to finish his disciplinary segregation. On October 26,
2016, Plaintiff was told to leave segregation and to return to general population. On October 29,
2016, Plaintiff was assaulted again in B-2 cell house by an inmate who used a weapon. On
October 30, Plaintiff was attacked again and forced to protect himself. UTM Parker of C-1 cell
house placed Plaintiff’s life back in danger after Plaintiff told her about his situation. After
Plaintiff refused the treatment bed in A-1 cell house, Parker threatened Plaintiff that she would call
the “black suits” to force cell him. Plaintiff acknowledges that he received disciplinary reports
for fighting.
Plaintiff names as defendants:

Warden Sam Cline; Unit Team Manager (“UTM”)

Lindsey Wildermuth; and EAI John Bousfield. In his request for relief, Plaintiff seeks to have his
disciplinary consequences dropped, to have all privileges and incentives reinstated, and monetary
damages.
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

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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,

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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. Official Capacity Claims
Plaintiff sues Defendants in their individual and official capacities. An official-capacity
suit is another way of pleading an action against the governmental entity itself. Kentucky v.
Graham, 473 U.S. 159, 165 (1985). “When a suit alleges a claim against a state official in his
official capacity, the real party in interest in the case is the state, and the state may raise the defense
of sovereign immunity under the Eleventh Amendment.” Callahan v. Poppell, 471 F.3d 1155,
1158 (10th Cir. 2006) (quotation omitted). Sovereign immunity generally bars actions in federal
court for damages against state officials acting in their official capacities. Harris v. Owens, 264
F.3d 1282, 1289 (10th Cir. 2001). It is well established that Congress did not abrogate the states’
sovereign immunity when it enacted § 1983. Quern v. Jordan, 440 U.S. 332, 338–45 (1979);
Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002). Plaintiff’s claims for monetary
damages against Defendants in their official capacities are subject to dismissal as barred by
sovereign immunity.

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2. Individual Capacity Claims
a. Defendants Cline and Wildermuth
Plaintiff has failed to allege any personal involvement by Defendants Cline and
Wildermuth.

The claims against Cline and Wildermuth require proof that they personally

committed a constitutional violation. Keith v. Koerner, 843 F.3d 833, 837–38 (10th Cir. 2016)
(citing Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable to .
. . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.”)). It is not enough that a
defendant acted in a supervisory role when another defendant violated a plaintiff’s constitutional
rights. Keith, 843 F.3d at 838.
Plaintiff “must show an affirmative link between [Cline and Wildermuth] and the
constitutional violation, which requires proof of three interrelated elements:

(1) personal

involvement; (2) causation; and (3) state of mind.” Id. (internal quotation marks omitted) (citing
Schneider v. City of Grand Junction Police Dep’t., 717 F.3d 760, 767 (10th Cir. 2013) (quoting
Dodds, 614 F.3d at 1195)). Because Plaintiff has failed to allege any personal involvement by
Defendant Cline or Defendant Wildermuth, his claims against these defendants are subject to
dismissal.
b. Defendant Bousfield
Plaintiff alleges that during Plaintiff’s segregation review on October 17, 2016, Defendant
EAI Bousfield acknowledged that Plaintiff was in danger because his attacker “doesn’t like people
walking away.” On October 26, 2016, Plaintiff was told to leave segregation and to return to
general population. Plaintiff does not specify who told him to leave segregation or who made the

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decision for Plaintiff to return to general population. Plaintiff’s factual allegations suggest that all
three of his incidents involved different inmates.
“Prison and jail officials, as well as municipal entities that employ them, cannot absolutely
guarantee the safety of their prisoners. Nonetheless, they have a constitutional duty to take
reasonable steps to protect the prisoners’ safety and bodily integrity.” Wright v. Collison, 651 F.
App’x 745, 748 (10th Cir. 2016) (unpublished) (quoting Cox v. Glanz, 800 F.3d 1231, 1247–48
(10th Cir. 2015)). “To establish a cognizable Eighth Amendment claim for failure to protect an
inmate from harm by other inmates, the plaintiff must show that he [was] incarcerated under
conditions posing a substantial risk of serious harm, the objective component, and that the prison
official was deliberately indifferent to his safety, the subjective component.” Id. (citing Smith v.
Cummings, 445 F.3d 1254, 1258 (10th Cir. 2006) (brackets and internal quotation marks
omitted)).

For the subjective component, “the plaintiff bears the burden to show that the

defendants responded in an ‘objectively unreasonable manner’—that is, they ‘knew of ways to
reduce the harm but knowingly or recklessly declined to act.’” Id. (citing Howard v. Waide, 534
F.3d 1227, 1239 (10th Cir. 2008) (brackets and internal quotation marks omitted)).
Plaintiff’s claim against Defendant Bousfield is subject to dismissal for failure to allege
that he acted with deliberate indifference. Not “every injury suffered by one prisoner at the hands
of another . . . translates into constitutional liability for prison officials responsible for the victim’s
safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). The second requirement for an Eighth
Amendment violation “follows from the principle that ‘only the unnecessary and wanton infliction
of pain implicates the Eighth Amendment.’” Farmer, 511 U.S. at 834. Prison officials must
have a “sufficiently culpable state of mind,” and in prison-conditions cases that state of mind is
“deliberate indifference” to inmate health or safety. Id. “[T]he official must both be aware of

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facts from which the inference could be drawn that a substantial risk of serious harm exists, and he
must also draw the inference.” Id. at 837. “The Eighth Amendment does not outlaw cruel and
unusual ‘conditions’; it outlaws cruel and unusual ‘punishments.’” Id. It is not enough to
establish that the official should have known of the risk of harm. Id.
VI. Response and/or Amended Complaint Required
Plaintiff is required to show good cause why his Complaint should not be dismissed for the
reasons stated herein. Plaintiff is also given the opportunity to file a complete and proper
Amended Complaint upon court-approved forms that cures all the deficiencies discussed herein.1
Plaintiff is given time to file a complete and proper Amended Complaint in which he (1) shows he
has exhausted administrative remedies for all claims alleged; (2) raises only properly joined claims
and defendants; (3) alleges sufficient facts to state a claim for a federal constitutional violation and
show a cause of action in federal court, and (4) alleges sufficient facts to show personal
participation by each named defendant.
If Plaintiff does not file an Amended Complaint within the prescribed time that cures all the
deficiencies discussed herein, this matter will be decided based upon the current deficient
Complaint.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is granted until
November 27, 2017, in which to show good cause, in writing, to the Honorable Sam A. Crow,
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In order to add claims, significant factual allegations, or change defendants, a plaintiff must submit a complete
Amended Complaint. See Fed. R. Civ. P. 15. An Amended Complaint is not simply an addendum to the original
complaint, and instead completely supersedes it. Therefore, any claims or allegations not included in the Amended
Complaint are no longer before the court. It follows that a plaintiff may not simply refer to an earlier pleading, and
the Amended Complaint must contain all allegations and claims that a plaintiff intends to pursue in the action,
including those to be retained from the original complaint. Plaintiff must write the number of this case
(17-3060-SAC) at the top of the first page of his Amended Complaint and he must name every defendant in the caption
of the Amended Complaint. See Fed. R. Civ. P. 10(a). Plaintiff should also refer to each defendant again in the body
of the complaint, where he must allege facts describing the unconstitutional acts taken by each defendant including
dates, locations, and circumstances. Plaintiff must allege sufficient additional facts to show a federal constitutional
violation.

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United States District Judge, why Plaintiff’s Complaint should not be dismissed for the reasons
stated herein.
IT IS FURTHER ORDERED that Plaintiff is also granted until November 27, 2017, in
which to file a complete and proper Amended Complaint to cure all the deficiencies discussed
herein.
The clerk is directed to send § 1983 forms and instructions to plaintiff.
IT IS SO ORDERED.
Dated in Topeka, Kansas, on this 24th day of October, 2017.

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

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