Kasel v. Sedgwick County Detention Facility

Filing 4

NOTICE AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted until October 27, 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. Pl aintiff is granted until October 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 09/27/17. Mailed to pro se party Seth Michael Kasel by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SETH MICHAEL KASEL,
Plaintiff,
v.

CASE NO. 17-3102-SAC-DJW

SEDGWICK COUNTY DETENTION
FACILITY,
Defendant.

NOTICE AND ORDER TO SHOW CAUSE
Plaintiff Seth Michael Kasel, 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. The Court
granted Plaintiff leave to proceed in forma pauperis. (Doc. 3.) Plaintiff is detained at the
Sedgwick County Detention Facility in Wichita, Kansas (“SCDF”). Plaintiff alleges that he is
being denied adequate religious materials and services. Plaintiff alleges that he has made
“request after request” and has been denied. Plaintiff spoke with the Chaplain and she told him
that she was not denying approval, but rather the facility was denying Plaintiff’s requests.
Plaintiff alleges that he was denied religious services because the facility does not have religious
services for Wiccans. Plaintiff also claims that the facility has made it difficult for him to obtain
adequate religious materials because he is indigent and the facility has denied his attempts to get
literature “through the facility.” Plaintiff alleges that his request to have the facility provide him
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with a composition notebook for use as a Book of Shadows has been denied. Plaintiff names
SCDF as his sole defendant, and he seeks “chastisement of the facility [and] 100 million
dollars.”
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

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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).

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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).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).
Plaintiff states in his Complaint that he “continued to communicate with the Chaplain and
other administrative officers and they all denied [his] issues.” (Doc. 1, at 5.) This action is
subject to dismissal because it appears from the face of the Complaint that Plaintiff failed to fully

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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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and properly exhaust all available prison administrative remedies on his claim prior to filing this
action in federal court. Because failure to exhaust appears from the face of the Complaint,
Plaintiff is required to show that he has fully and properly exhausted his administrative remedies.
2. Defendants
Plaintiff’s Complaint names the Sedgwick County Detention Facility as defendant.
Prison and jail facilities are not proper defendants because none is a “person” subject to suit for
money damages under § 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 66, 71
(1989) (neither state nor state agency is a “person” which can be sued under § 1983); Davis v.
Bruce, 215 F.R.D. 612, 618 (D. Kan. 2003), aff’d in relevant part, 129 F. App’x 406, 408 (10th
Cir. 2005). Plaintiff’s request for money damages against SCDF is subject to dismissal.
3. First Amendment – Religious Freedom
“Under the First and Fourteenth Amendments, inmates are entitled to the reasonable
opportunity to pursue their sincerely-held religious beliefs.” Gallagher v. Shelton, 587 F.3d
1063, 1069 (10th Cir. 2009)(citation omitted); see McKinley v. Maddox, 493 F. App’x 928, 932
(10th Cir. 2012). In order to state a constitutional denial of free exercise of religion claim, a
prisoner must allege that defendants “substantially burdened his sincerely-held religious beliefs.”
Gallagher, 587 F.3d at 1069. In addition, he “must assert conscious or intentional interference
with his free exercise rights to state a valid claim under § 1983.” Id. at 1070. “If the prisoner
satisfies this initial step, defendants ‘may identify the legitimate penological interests that
justified the impinging conduct,’ and ‘[t]he burden then returns to the prisoner to show that these
articulated concerns were irrational.’” McKinley, 493 F. App’x at 932 (citation omitted). The
court then balances factors set forth by the Supreme Court “to determine the reasonableness” of
the conduct. Id.

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The Tenth Circuit has identified “three broad ways government action may impose a
substantial burden on religious exercise:”
(1) requir[ing] participation in an activity prohibited by a sincerely held religious
belief, or (2) prevent[ing] participation in conduct motivated by a sincerely held
religious belief, or (3) plac[ing] substantial pressure on an adherent either not to
engage in conduct motivated by a sincerely held religious belief or to engage in
conduct contrary to a sincerely held religious belief, such as where the
government presents the plaintiff with a Hobson’s choice—an illusory choice
where the only realistically possible course of action trenches on an adherent’s
sincerely held religious belief.
Strope v. Cummings, 381 F. App’x 878, 881 (10th Cir. 2010, unpublished)(quoting Abdulhaseeb
v. Calbone, 600 F.3d 1301, 1315)(10th Cir. 2010)). In Strope, the Tenth Circuit reasoned as
follows:
Illustrating the distinction between substantial burden and inconvenience, we held
(1) the flat denial of a halal diet with approved meats was actionable, id. at 1316–
20, but (2) an incident (the panel concurrence notes “sporadic incidents”) in
which a prisoner’s meal was rendered inedible by service of prohibited items
contaminating his tray was not actionable, id. at 1320–21; id. at 1325; see also
Gallagher, 587 F.3d at 1070 (holding isolated violation of kosher restrictions did
not support Free Exercise claim). We “assume[d] that as the frequency of
presenting unacceptable foods increases, at some point the situation would rise to
the level of a substantial burden,” but that level had clearly not been reached.
Id. (citing Abdulhaseeb, 600 F.3d at 1321).

In sum, mere inconvenience, negligence, and

isolated or sporadic incidents are not sufficient to show a substantial burden.
Plaintiff’s First Amendment claim of denial of the right to freely practice his religion is
subject to dismissal for failure to allege adequate facts in support. Plaintiff does not allege
specifically what materials he requested other than the composition notebook, nor does he
indicate who he made the request to, who denied his request, or how many requests he made.
Plaintiff’s denial of religious freedom claim may be dismissed on this basis, unless he alleges
sufficient additional facts in his Amended Complaint.

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4. Damages
Plaintiff 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).
VI. Response and/or Amended Complaint Required
For the reasons stated herein, it appears that this action is subject to dismissal in its
entirety for failure to exhaust administrative remedies and for failure to state a claim. 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).
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.2 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

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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 (17-3102SAC-DJW) 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. 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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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
October 27, 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 FURTHER ORDERED that Plaintiff is granted until October 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 27th day of September, 2017.

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

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