Kanatzar v. Cole et al

Filing 6

MEMORANDUM AND ORDER ENTERED: The plaintiff is granted 30 days in which to file a complete Amended Complaint upon court-approved forms that cures all the pleading deficiencies, that omits all of the claims dismissed, and that includes all of the pla intiff's remaining claims from the original complaint and the motion to amend which he still intends to pursue. Plaintiff shall file within this same 30-day period a response that shows cause why his remaining claims alleged in his complete Amended Complaint should not be dismissed. Signed by U.S. Senior District Judge Sam A. Crow on 12/01/17. Mailed to pro se party Caleb Kanatzar by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CALEB KANATZAR,
Plaintiff,
vs.

Case No. 17-3115-SAC

BRIAN COLE, TIMOTHY PHELPS,
CAPTAIN RUCKER, and
MARY FLETCHER,
Defendants.
MEMORANDUM AND ORDER
The plaintiff Caleb Kanatzar, a pretrial detainee at the Shawnee
County Department of Corrections (“SCDC”), in Topeka, Kansas, has
submitted a 29-page complaint for relief alleging 10 claims under 42 U.S.C.
§ 1983, and naming as defendants, Brian Cole, as director of SCDC; Timothy
Phelps, an SCDC officer; Captain Rucker, an SCDC officer; and Mary
Fletcher, a food services supervisor at SCDC. ECF# 1. The plaintiff’s claims
read like a summary of isolated administrative grievances against SCDC
officials ranging from the lack of regular outdoor time and exercise
equipment to dirty meal trays and the denial of properly prepared kosher
meals. For this reason, the plaintiff’s pleadings are largely deficient in
alleging constitutional violations and require the court to screen not only the
current claims but also the plaintiff’s possible amended claims. The

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screening standards are set out below followed by a discussion of the
relevant counts.
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 the
entire complaint or any part of it, “if the complaint . . . is frivolous,
malicious, or fails to state a claim upon which relief can be granted; or . . .
seeks monetary relief from a defendant who is immune from such relief.” 28
U.S.C. § 1915A(b).
“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). In addressing a claim brought under § 1983, the analysis
begins by identifying the specific constitutional right allegedly infringed.
Graham v. Connor, 490 U.S. 386, 393-94 (1989). The validity of the claim
then must be judged by reference to the specific constitutional standard
which governs that right. Id.
A court liberally construes a pro se complaint and applies “less
stringent standards than formal pleadings drafted by lawyers.” Erickson v.
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Pardus, 551 U.S. 89, 94 (2007). In addition, the court accepts all wellpleaded 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).
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 same standard used for Fed. R. Civ. P. 12(b)(6) motions is
used for § 1915 dismissals, and this includes the newer language and
meaning taken from Twombly and its “plausibility” determination. 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), cert. denied,
558 U.S. 1148 (2010). 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). The Tenth Circuit has
made clear, “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
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right the plaintiff believes the defendant violated.” Nasious v. Two Unknown
B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1163
(10th Cir. 2007).
Motion to Amend
The plaintiff has filed a five-page motion to amend complaint
which alleges three additional claims for relief. ECF# 5. Though the plaintiff
is entitled to amend his complaint once without leave of the court, the
plaintiff’s motion to amend is not a complete amended complaint. The
plaintiff may not amend his complaint by simply submitting papers with
additional claims and allegations as done here. To add claims or significant
claims, the plaintiff must prepare and submit a complete amended
complaint. See Fed. R. Civ. P. Rule 15. The amended complaint must be
complete as it supersedes the original complaint. Therefore, it must include
all parties, claims and factual allegations that the plaintiff intends to present,
including those he wants to retain from the original complaint. The plaintiff
may not simply refer to the original complaint. The plaintiff is hereby
admonished that claims and allegations omitted from the amended
complaint will be regarded as no longer before the court. To comply with the
local court rule, the Amended Complaint must be submitted upon courtapproved forms.
The plaintiff will be given thirty days to file a complete amended
complaint upon proper forms that contains all of his claims and factual
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allegations. This amended complaint also should address all of the pleading
deficiencies addressed in this order omitting those claims which the plaintiff
no longer wishes to pursue or which the court has otherwise dismissed in
this order.
Compensatory Damages Claim for Relief
The plaintiff’s complaints principally seek injunctive relief, but his
original complaint included a claim for damages to compensate for “pain,
sickness and mental anguish.” ECF# 1, p. 19. Federal law prohibits prisoners
from bringing federal actions “for mental or emotional injury suffered while
in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e).
Section 1997e(e) . . . provides in pertinent part: “No 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.” Id. In Searles v. Van Bebber, 251 F.3d 869
(10th Cir. 2001), cert. denied, 536 U.S. 904 (2002), the Tenth Circuit
specifically held that the “Limitation on Recovery” set forth in § 1997e(e)
applied to a First Amendment claim that prison officials denied the plaintiff a
Kosher diet and to claims for actual or compensatory damages. Id. at 879,
881; see also Sisney v. Reisch, 674 F.3d 839, 843 (8th Cir.), cert. denied,
568 U.S. 934 (2012). The plaintiff’s complaint fails to allege any facts to
support a cognizable claim for damages. There are no allegations to indicate
the defendants’ actions caused the plaintiff to sustain a physical injury.
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Thus, the plaintiff has no claim for damages absent the allegation of
additional facts to support the same.
Personal Participation of Defendants
The law is clear in this circuit:
“Individual liability under § 1983 must be based on personal
involvement in the alleged constitutional violation.” Foote v. Spiegel,
118 F.3d 1416, 1423 (10th Cir. 1997). Supervisory status alone does
not create § 1983 liability. Duffield v. Jackson, 545 F.3d 1234, 1239
(10th Cir. 2008). Rather, there must be “an affirmative link ...
between the constitutional deprivation and either the supervisor's
personal participation, his exercise of control or direction, or his failure
to supervise.” Green v. Branson, 108 F.3d 1296, 1302 (10th Cir.1997)
(quotation and brackets omitted).
Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009). Thus, a general
allegation that a grievance was denied, “by itself without any connection to
the violation of constitutional rights alleged by plaintiff, does not establish
personal participation under § 1983.” Id. (citations omitted). The allegation
that the defendant failed to approve or denied a request may be sufficient.
Id. at 1070. Absent such allegations of personal participation, a defendant
may be dismissed. The court will follow these rules in addressing the
respective counts.
Count One—SCDC’s Failure to Respond to Grievances and Count
Nine—Failure to Provide Immediate Attention to Grievances
For count one, the plaintiff alleges that he has filed different
grievances which were “never answered, returned to plaintiff, or
acknowledged in any way.” ECF# 1, p. 4. The plaintiff alleges these
grievance forms addressed his ignored requests for a kosher diet, his denied
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request for exercise equipment to be included in the segregation recreation
cages, and his denied request for access to basic hygiene items and to the
general population commissary. For count nine, the plaintiff alleges that on
April 10, 2017, he complained when his lunch came on a dirty food tray. The
unit officer denied his request for a clean tray, refused his request to speak
to a superior officer, and instructed him to file a grievance. The plaintiff filed
an emergency grievance which was denied. Also for count nine, the plaintiff
alleges a unit officer searched his cell and confiscated two magazines. The
officer refused the plaintiff’s request to return the magazines, so the plaintiff
filed a grievance which was not acknowledged or answered. The plaintiff
asserts the defendants’ failure to respond to his grievances frustrates his
effort to exhaust the required administrative process and violates his due
process rights under the Fourteenth Amendment. The plaintiff essentially
alleges SCDC officials refused to respond or responded inadequately to his
grievances under the established grievance procedure.
The United States Constitution guarantees due process when a
person is to be deprived of life, liberty, or property. See Templeman v.
Gunter, 16 F.3d 367, 369 (10th Cir. 1994). “The Due Process Clause
standing alone confers no liberty interest in freedom from state action taken
within the sentence imposed.” Sandin v. Conner, 515 U.S. 472, 480 (1995)
(internal quotation marks and citation omitted). Thus, an inmate must have
a liberty interest at stake to be entitled to procedural due process
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protections. See, id. at 483-485. “Prison grievance procedures do not ‘give
rise to a protected liberty interest requiring the procedural protections
envisioned by the fourteenth amendment.’” Murray v. Albany County Bd. of
County Com'rs, 211 F.3d 1278 (Table), 2000 WL 472842, at *2 (10th Cir.
Apr. 20, 2000) (quoting Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.
1993); See Bingham v. Thomas, 654 F.3d 1171, 1177-78 (11th Cir. 2011)
(observing that inmates have no constitutionally-protected liberty interest in
access to prison grievance procedure); Anderson v. Colorado Dep't of
Corrections, 185 F.3d 873, 1999 WL 387163, at *2 (10th Cir. June 14,
1999) (holding that a state inmate's § 1983 “allegations relating to the
requirements of the Department of Corrections grievance procedure do not
support a due process claim because those procedures do not create any
liberty interest in the incarcerated petitioner”), cert. denied, 528 U.S. 1165
(2000); Boyd v. Ford County Detention Center, 2017 WL 4786158, at *4 (D.
Kan. Oct. 24, 2017) (state’s voluntary provision of grievance process does
not create a liberty interest in the process); Johnson v. Richins, 2010 WL
3121144, at *7 (D. Utah Aug. 9, 2010) (“Plaintiff’s allegations of
interference with the grievance process are insufficient to state a federal due
process claim.”), aff'd, 438 Fed. Appx. 647 (10th Cir. 2011). “The failure to
respond to plaintiff’s grievances did not impose an atypical and significant
hardship in relation to the ordinary incidents of prison life.” Murray, 2000 WL
472842 at *2 (citing See generally Sandin v. Conner, 515 U.S. at 484, 487).
8

“’[W]hen the claim underlying the administrative grievance involves a
constitutional right, the prisoner's right to petition the government for
redress is the right of access to the courts, which is not compromised by the
prison's refusal to entertain his grievance.’” Boyd v. Werholtz, 443 Fed.
Appx. 331, 332 (10th Cir. 2011) (quoting Flick v. Alba, 932 F.2d 728, 729
(8th Cir. 1991)(per curiam)). The failure of SCDC officials to handle or
decide the plaintiff's grievances, by itself, does not implicate his right of
access to the courts. Nor does Plaintiff allege that any failure of the prison
grievance system denied him access to the courts, and, indeed, he was able
to file this action. Plaintiff has failed to state a valid 1983 claim for relief
based on the handling of his prison system grievances. See Fogle v. Infante,
595 Fed. Appx. 807, 810 (10th Cir. 2014), cert. dismissed, 136 S. Ct. 58
(2015).
Most of the plaintiff’s allegations under these counts do not
implicate a constitutional right with the exception of personal property seized
from his cell. The Tenth Circuit recognizes:
A state must not “deprive a person of life, liberty or property unless
fair procedures are used in making that decision.” Copelin-Brown v.
New Mexico State Pers. Office, 399 F.3d 1248, 1254 (10th Cir. 2005)
(quoting Archuleta v. Colo. Dep't of Insts., Div. of Youth Servs., 936
F.2d 483, 490 (10th Cir. 1991)). The Supreme Court has held that “an
unauthorized intentional deprivation of property ... does not constitute
a violation of the procedural requirements of the Due Process Clause of
the Fourteenth Amendment if a meaningful postdeprivation remedy for
the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct.
3194, 82 L.Ed.2d 393 (1984). Inmate grievance procedures can be an
adequate post-deprivation remedy for the alleged destruction of
property. Id. at 536 n.15, 104 S.Ct. 3194. A violation of due-process
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procedures exists if the postdeprivation procedure is “unresponsive or
inadequate.” Freeman v. Dep't of Corrs., 949 F.2d 360, 362 (10th Cir.
1991).
Coburn v. Wilkinson, 700 Fed. Appx. 834 (10th Cir. Jul. 19, 2017)(unpub.).
The plaintiff alleges for count nine that his grievance for the confiscated
property “was never answered or returned to plaintiff” and his magazines
were never returned. ECF# 1, p. 18. While these allegations may state an
actionable due process claim, the plaintiff’s complaint is deficient in not
alleging the named defendant who seized the property and who failed to
answer the grievance. Therefore, this claim is subject to dismissal without
additional allegations. As for count one and the dirty lunch tray allegation in
count nine, absent additional allegations, these claims will be dismissed for
failure to state a valid 1983 claim for relief based on the mere handling of
his prison system grievances. Such a dismissal would be without prejudice to
the plaintiff alleging and arguing these circumstances in the event that
exhaustion of administrative remedies would become an issue. It is true that
“[w]here prison officials prevent, thwart, or hinder a prisoner's efforts to
avail himself of an administrative remedy, they render that remedy
‘unavailable’ and a court will excuse the prisoner's failure to exhaust.” Little
v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010)
Count Two—SCDC’s Failure to Provide a Kosher Diet
The plaintiff alleges the following in support of this claim. On
February 20, 2016, the plaintiff requested a kosher diet and informed
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Lieutenant Scribner with the SCDC that he practiced the Jewish religion. The
plaintiff alleges that one week later he “was placed on the certified religious
diet (CRD).” ECF# 1, p. 4. He also alleges:
On or about 3-5-17, plaintiff was made aware that S.C.D.O.C. does
not maintain a separate kosher kitchen for the preparation of CRD
meals. S.C.D.O.C. uses the same pots, pans, and utensils to prepare
both the CRD and regular trays. This is significant because kosher food
is no longer kosher if it is prepared in containers or with utensils which
have held non-kosher food.
ECF# 1, p. 7. The plaintiff alleges he submitted a request to the defendant
Phelps on March 12, 2017, asking that his meal be prepared in a manner
consistent with “keeping kosher” which is a central tenet of his religious
belief. When these requests were not answered or acknowledged, the
plaintiff alleges he filed grievances. The plaintiff next alleges that on April
15, 2017, he submitted a request and a separate grievance, “both
complaining of” staff’s failure to respond to his kosher diet requests.
According to the plaintiff, this request and grievance also was never
answered or acknowledged. Finally, the plaintiff alleges he submitted a
request to Mary Fletcher requesting a kosher diet laying out the requirement
for “keeping kosher,” and this request was never approved.
“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). The First Amendment's free-exercise clause applies to the
States through the Fourteenth Amendment. Cantwell v. Connecticut, 310
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U.S. 296, 303 (1940). The determination of what constitutes a “reasonable
opportunity” is made “in reference to legitimate penological objectives.”
Gallagher, 587 F.3d at 1069. The Tenth Circuit has recognized “that an
inmate's right to free exercise of religion includes the right to a diet that
conforms with their religious beliefs.” Id. at 1070 (citing Beerheide v.
Suthers, 286 F.3d 1179, 1185 (10th Cir. 2002)) (reversing dismissal of First
Amendment claims stemming from a denial of Jewish inmates' request for a
kosher diet). To allege a claim that his right to free exercise of religion was
violated, the plaintiff inmate “must adequately allege that the defendants
‘substantially burdened [his] sincerely held religious beliefs.’” Gallagher, 587
F.3d at 1069 (citing Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007)).
“Sincere religious beliefs must be accommodated . . . but non-religious
beliefs need not be.” Vinning-El v. Evans, 657 F.3d 591, 593 (7th Cir. 2011).
“A prison is entitled to ensure that a given claim reflects a sincere religious
belief, rather than a preference for the way a given diet tastes, a belief that
the preferred diet is less painful for animals, or a prisoner's desire to make a
pest of himself and cause trouble for his captors.” Id. A plaintiff must allege
more than “isolated act[s] of negligence” in order to establish a substantial
burden. See Gallagher, 587 F.3d at 1070. However, “[i]t is clearly
established law that ‘a prisoner's religious dietary practice is substantially
burdened when the prison forces him to choose between his religious
practice and adequate nutrition.’” Oliver v. Harner, 2016 WL 1117084, at
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*10 (S.D. Ill. Mar. 22, 2016) (quoting Nelson v. Miller, 570 F.3d 868, 879
(7th Cir. 2009)).
As the allegations in the plaintiff’s complaint closely parallel the
testimony of Rabbi Engle and the court’s findings regarding “Orthodox
Judaism” set out in Beerheide v. Suthers, 286 F.3d 1179, 1183 (10th Cir.
2002), the plaintiff appears to have alleged a cognizable claim for violation
of his First Amendment right to free exercise of religion by the defendants
Phelps and Fletcher who have been specifically named in the complaint as
having been asked to provide properly prepared Kosher food and as having
personally failed to approve his requests. The allegations against defendant
Cole are based on nothing more than supervisory capacity or the denial of
grievances. It follows that the defendants Cole and Rucker are subject to
being dismissed unless additional facts are alleged to show personal
participation by each of these defendants. See Hachmeister v. Kline, 2013
WL 237815, at *3 (D. Kan. Jan. 22, 2013).
Count Three—Actual “Through Glass” In-Person Visits
The plaintiff here alleges that he requested and was denied
these actual visits rather than “video visitations” and that he exhausted the
administrative remedy process on his request. The plaintiff complains that
these video visitations are nothing more than phone calls with video display
conducted without the visitor coming to the actual jail. The plaintiff refers to
his lack of disciplinary issues associated with visitation.
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The plaintiff’s complaint fails to allege what, if anything, any of
the named defendants did to him, when it was done, how he was harmed,
and what specific legal right of his was allegedly violated here. Assuming a
Fourteenth Amendment claim, the Tenth Circuit has made it abundantly
clear:
“[t]o make a claim of denial of due process in violation of the
Fourteenth Amendment, a plaintiff must show the deprivation of a
protected liberty or property interest.” Schmitt v. Rice, 421 Fed.Appx.
858, 861 (10th Cir. 2011) (unpublished) (citing Board of Regents v.
Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). “The
Supreme Court has limited the scope of liberty interests to conditions
involving an ‘atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life.’” Cleveland v. Martin, 590 Fed.
Appx. 726, 731–32 (10th Cir. 2014) (unpublished) (quoting Sandin v.
Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)).
“Since Sandin, we have consistently stated in unpublished opinions
that inmates lack a liberty interest in visitation.” Id. (citing Marshall v.
Morton, 421 Fed.Appx. 832, 838 (10th Cir. 2011) (unpublished)
(holding that “restrictions on an inmate's telephone use, property
possession, visitation and recreation privileges are not different in such
degree and duration as compared with the ordinary incidents of prison
life to constitute protected liberty interests under the Due Process
Clause”)).
Rackley v. Blevins, 596 Fed. Appx. 620, 624 (10th Cir. Dec. 19, 2014). This
court has further noted:
“[T]he Supreme Court has held that inmates have no right to
unfettered visitation. Rather, prison officials necessarily enjoy broad
discretion in controlling visitor access to a prisoner.” Peterson v.
Shanks, 149 F.3d 1140, 1145 (10th Cir. 1998)(citing Kentucky Dept.
of Corr. v. Thompson, 490 U.S. 454, 460 (1989)); Overton v.
Bazzetta, 539 U.S. 126, 132 (2003)(restrictive visitation procedures
are within the broad discretion of prison officials); Wirsching v. Col.,
360 F.3d 1191, 1198 (10th Cir. 2004) (“the Constitution allows prison
officials to impose reasonable restrictions upon visitation.”) Compare
Johnson v. Miller, 2009 WL 2591681 (W.D.Okla. 2009)(noting that
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“Plaintiff has also not alleged that LCF imposed a complete ban on all
of Plaintiff's visitors”).
Srader v. Richardson, 2014 WL 1304934, at *5 (D. Kan. Mar. 31, 2014); see
Wood v. Oklahoma Dept. of Corrections, 2017 WL 377946, at *2 (W.D. Okla.
Jan. 26, 2017). As alleged, the plaintiff has not stated a claim for relief in
count three, as he has no fundamental right to visitation, let alone a right to
an in-person visitation through glass windows as opposed to a video
visitation. Absent additional allegations addressing all the deficiencies noted
above, this count is subject to dismissal.
Count Four—Failure to Provide Adequate Exercise Opportunities
while in segregation;
Count Seven—Cancellation of Recreation Due to Wet Floors; and
Count Eleven—Failure to Provide Adequate Exercise Opportunities
while in general population
The plaintiff alleges rights under the Eighth and Fourteenth
Amendment to receive adequate opportunities for exercise. On count four,
the plaintiff specifically alleges that on March 12, 2017, he made a written
request to Captain Rucker for exercise equipment to be added to the
segregation recreation cages. His request was denied, and his efforts to
exhaust administrative remedies were never answered or acknowledged. On
count seven, the plaintiff makes the related claim that staff frequently
cancelled outside recreation periods while he was in segregation due to wet
concrete floors. In his motion to amend, the plaintiff alleges in count eleven
that he was released from segregation on July 18, 2017, which moots his
claim for injunctive relief on counts four and seven. Consequently, these
15

claims are dismissed as moot due to the plaintiff’s release from segregation.
On count eleven, the plaintiff alleges inadequate opportunities for recreation
while in general population due to facility lockdown caused by staffing issues
and due to the limitation on the number of inmates allowed on the outdoor
court.
“The Constitution does not mandate comfortable prisons, . . .,
but neither does it permit inhumane ones, and it is now settled that the
treatment a prisoner receives in prison and the conditions under which he is
confined are subject to scrutiny under the Eighth Amendment.” Farmer v.
Brennan, 511 U.S. 825, 832 (1994) (internal quotation marks and citations
omitted). “The Eighth Amendment's prohibition of cruel and unusual
punishment imposes a duty on prison officials to provide humane conditions
of confinement, including adequate food, clothing, shelter, sanitation,
medical care, and reasonable safety from serious bodily harm.” Tafoya v.
Salazar, 516 F.3d 912, 916 (10th Cir. 2008). “Although we have never
expressly held that prisoners have a constitutional right to exercise, there
can be no doubt that total denial of exercise for an extended period of time
would constitute cruel and unusual punishment prohibited by the Eighth
Amendment.” Housley v. Dodson, 41 F.3d 597, 599 (10th Cir. 1994),
abrogated on other grounds by Lewis v. Casey, 518 U.S. 343, 349–54
(1996). See also Fogle v. Pierson, 435 F.3d 1252, 1259–60 (10th Cir.)(ruling
that allegedly “being denied all outdoor exercise for the three years he was
16

in administrative segregation” states an Eighth Amendment claim), cert.
denied, 549 U.S. 1059 (2006). “We recognize . . . that what constitutes
adequate exercise will depend on the circumstances of each case, including
the physical characteristics of the cell and jail and the average length of stay
of the inmates.” Housley v. Dodson, 41 F.3d at 599. See Perkins v. Kan.
Dept. of Corrections, 165 F.3d 803, 810 n.8 (10th Cir. 1999)(“What
constitutes adequate exercise will depend on the circumstances of each
case,” and “penological considerations may, in certain circumstances, justify
restrictions.”). As the Tenth Circuit has stated, “[although] one hour per
week . . . of . . . exercise and fresh air is still restrictive, we cannot say,
without more, that it fails to satisfy the demands of the Eighth Amendment.”
Bailey v. Shillinger, 828 F.2d 651, 653 (10th Cir. 1987).
The plaintiff’s allegations under the count eleven fail to allege
with specificity the denial of exercise opportunities that would approach a
constitutional violation. Instead, the plaintiff’s allegations indicate that he
has exercised on the outdoor court and that the facility lockdowns have not
occurred with such frequency as to implicate Eighth Amendment concerns.
Without additional allegations, the plaintiff’s count eleven is subject to
dismissal.

17

Count Five—Access to Commissary for Purchase of Basic Hygiene
Items and
Count Eight—Access to Hot Water within Segregation Cell
Both of these counts allege conditions of confinement imposed
while the plaintiff was in segregation. With his release to general population,
the plaintiff’s claims for injunctive relief in these counts are moot. The
plaintiff has not alleged a cognizable claim for damages under either. These
claims are dismissed as moot.
Count Six—Denial of Basic Dental Hygiene and
Count Thirteen—Refusal to Fill Small Cavities
For count six, the plaintiff alleges an Eighth Amendment violation
by the denial of his request on April 21, 2017, to have his teeth cleaned and
by the denial of dental floss while he has been at SCDC. For count thirteen,
the plaintiff alleges he received a routine dental checkup in April of 2017 and
the dentist found three small cavities in his teeth. The plaintiff first orally
requested the dentist to fix the cavities, and the dentist said this would be
done later. On May 30, 2017, the plaintiff submitted a medical request to the
dentist asking for the cavities to be fixed, and his request was never
returned to the plaintiff.
To state a § 1983 medical claim under the Eighth Amendment ,
a plaintiff must show that the defendant acted with “deliberate indifference
to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). The
test for deliberate indifference is both objective and subjective: a prisoner
must establish that he was deprived of a medical need that is, objectively,
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“sufficiently serious,” Farmer v. Brennan, 511 U.S. 825, 834 (1994), and
that the defendant subjectively knew of and disregarded “an excessive risk
to [the prisoner's] health and safety,” id. at 837. The Tenth Circuit recently
summarized the relevant law:
“Prison officials violate the Eighth Amendment's prohibition against
cruel and unusual punishment when they act deliberately and
indifferently to serious medical needs of prisoners in their custody.”
Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999). “Deliberate
indifference has both an objective and subjective component.” Id. To
meet the objective component, “[t]he medical need must be
sufficiently serious.” Id. A medical need is sufficiently serious “if the
condition ‘has been diagnosed by a physician as mandating treatment
or is so obvious that even a lay person would easily recognize the
necessity for a doctor's attention.’” Al–Turki v. Robinson, 762 F.3d
1188, 1192–93 (10th Cir. 2014) (quoting Oxendine v. Kaplan, 241
F.3d 1272, 1276 (10th Cir. 2001)). To satisfy the subjective
component, the plaintiff must show that the defendant knew that the
plaintiff “faced a substantial risk of harm and disregarded that risk, ‘by
failing to take reasonable measures to abate it.’” Hunt, 199 F.3d at
1224 (quoting Farmer, 511 U.S. at 847, 114 S.Ct. 1970). The
substantial-harm requirement “may be satisfied by lifelong handicap,
permanent loss, or considerable pain.” Garrett v. Stratman, 254 F.3d
946, 950 (10th Cir. 2001).
The Estate of Lockett by and through Lockett v. Fallin, 841 F.3d 1098, 1112
(10th Cir. 2016), cert. denied, 137 S.Ct. 2298 (2017). The level required to
make out a claim for deliberate indifference is “more blameworthy than
negligence,” requiring “more than ordinary lack of due care for the prisoner's
interests or safety.” Farmer, 511 U.S. at 835. “Moreover, a delay in medical
care ‘only constitutes an Eighth Amendment violation where the plaintiff can
show [that] the delay resulted in substantial harm.’” Mata v. Saiz, 427 F.3d
745, 751 (10th Cir. 2005) (quoting Oxendine, 241 F.3d at 1276). As already
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noted, this substantial harm would include, “lifelong handicap, permanent
loss, or considerable pain.” Mata, 427 F.3d at 751 (internal quotation marks
and citation omitted).
The plaintiff’s allegations that his requests for dental floss, for
his teeth to be cleaned, and for his minor cavities to be filled fail the
objective component of a sufficiently serious medical need. See Sayed v.
Broman, 638 Fed. Appx. 698 (10th Cir.) (allegations of ongoing dental issues
and a request to have teeth cleaned fail to state a plausible Eighth
Amendment claim), cert. denied, 136 S. Ct. 1670 (2016). The plaintiff’s
conclusory allegations on needing cavities filled immediately and for a teeth
cleaning are insufficient. Such “allegations regarding the need for, and the
denial of, treatment do not provide sufficient information to conclude the
deprivation may have been sufficiently serious.” Sayed, 638 Fed. Appx. at
*700. The complaint lacks the allegations, which if proven, would support a
finding that his need for dental cleaning by a dental professional was a
sufficiently serious medical need. Additionally, the allegations here provide
insufficient facts to meet the deliberate indifference requirement for Eighth
Amendment claims. The plaintiff’s complaint is devoid of any facts showing
the delay in filling the minor cavities will result in substantial harm. Nor has
the plaintiff alleged that any of the named defendants personally
participated in any decision to deny care here. Without additional
allegations, these claims are subject to dismissal.
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Count Ten—Failure to Clean Adequately the Food Trays
The plaintiff alleges that his food tray on April 10, 2017, was
encrusted with food from the prior day and that he submitted a written
request to Fletcher for the trays to be properly cleaned. His food tray on
April 15, 2017 was again dirty, so he filed a grievance. On April 17, 2017,
the plaintiff became ill. He alleges being told it was due to food poisoning,
and his grievance based on this event was never answered or returned. The
plaintiff concludes with a general allegation that the food trays remain
unsanitary with encrusted food on them.
The Tenth Circuit has recognized that a State must provide an
inmate with “nutritionally adequate food that is prepared and served under
conditions which do not present an immediate danger to the health and wellbeing of the inmates who consume it.” Ramos v. Lamm, 639 F.2d 559, 571
(10th Cir. 1980) (citations omitted), cert. denied, 450 U.S. 1041 (1981).
This must be framed within the context of an Eighth Amendment claim:
An inmate making an Eighth Amendment claim for constitutionally
inadequate conditions of confinement must allege and prove an
objective component and subjective component associated with the
deficiency. The objective component requires conditions sufficiently
serious so as to “deprive inmates of the minimal civilized measure of
life's necessities.” Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct.
2392, 69 L.Ed.2d 59 (1981). Alternatively, a condition must be
sufficiently serious so as constitute a substantial risk of serious harm.
Helling v. McKinney, 509 U.S. 25, 33–35, 113 S.Ct. 2475, 125 L.Ed.2d
22 (1993). The subjective component requires that a defendant prison
official have a culpable state of mind, that he or she acts or fails to act
with deliberate indifference to inmate health and safety. Wilson v.
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Seiter, 501 U.S. 294, 297, 303, 111 S.Ct. 2321, 115 L.Ed.2d 271
(1991).
Shannon v. Graves, 257 F.3d 1164, 1168 (10th Cir. 2001). First, the
presence every day of completely sanitized foods is not what this court
would regard as a minimal civilized necessity of life. Nor is the occasional
dirty food tray a condition sufficiently serious as to be a substantial risk of
serious harm. Moreover, the plaintiff’s complaints of occasional dirty food
trays suggest negligence rather than a “wanton and obdurate disregard for
inmate health and safety.” Shannon, 257 F.3d at 1168. As they stand, the
plaintiff’s allegations simply do not rise to the level of a constitutional
violation.
Count Twelve: Charging Phone Fees in Excess of Government Caps
The plaintiff here alleges that the SCDC charges rates for collect
and prepaid calls that exceed the rate cap “set by the government.” ECF# 5,
p. 3. The plaintiff alleges this practice violates his Fourteenth Amendment
rights. The plaintiff’s fails to allege how the SCDC’s charges deprive him of
any rights under the Fourteenth Amendment. There is nothing alleged here
to show the denial of due process or equal protection rights. The plaintiff’s
complaint about the fees and costs “do not state a cause of action.” Palmer
v. Baldwin, 2017 WL 3026210, at *3 (S.D. Ill. Jul. 17, 2017) (citing Arsberry
v. Illinois, 244 F.3d 558, 564 (7th Cir.)(excessive telephone charges did not
implicate prisoner’s First Amendment rights), cert. denied, 534 U.S. 1062
(2001)); see Harrell v. Solano County Jail, 2015 WL 5813700, at *4 (E.D.
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Cal. Sept. 30, 2015) (“[T]here is no authority for the proposition that
prisoners are entitled to seek a specific rate for their telephone calls.”
(citations omitted)). Absent additional allegations, this count is subject to
dismissal.
IT IS THEREFORE ORDERED that the plaintiff is granted 30 days
in which to file a complete Amended Complaint upon court-approved forms
that cures all the pleading deficiencies discussed above, that omits all of the
claims dismissed above, and that includes all of the plaintiff’s remaining
claims from the original complaint and the motion to amend which he still
intends to pursue;
IT IS FURTHER ORDERED that the plaintiff shall file within this
same 30-day period a response that shows cause why his remaining claims
alleged in his complete Amended Complaint should not be dismissed for the
reasons stated in this memorandum and order.
Dated this 1st day of December, 2017, Topeka, Kansas.

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

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