Kanatzar v. Cole et al

Filing 8

MEMORANDUM AND ORDER ENTERED: Counts two and three of the plaintiff's amended complaint are dismissed for failure to state a claim upon which relief can be granted, and the defendant Rucker who was named as a defendant on only these two counts is dismissed as a party. The clerk of the court shall prepare waiver of service forms for Brian Cole, Director of SCDC; Timothy Phelps, Major of SCDC; and Mary Fletcher, Food Service Supervisor of SCDC, pursuant to Rule 4(d) of the Federal Rules of Civil Procedure, to be served upon them at no cost to plaintiff. The report required herein shall be filed no later than sixty (60) days from the date of this order, unless the time is extended by the Court. The answer or other responsive pleading s hall be filed within thirty (30) days after the Martinez report is filed. Officials responsible for the operation of the SCDC, namely Director Brian Cole, are directed to undertake a review of the subject matter of the amended complaint and specifically the allegations in count one. See Memorandum and Order for details. Signed by U.S. District Senior Judge Sam A. Crow on 03/09/18. 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, filed a 29page complaint alleging 10 claims for relief under 42 U.S.C. § 1983. He
named 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. This complaint read like a summary of
isolated administrative grievances against SCDC officials, and it was largely
deficient in alleging constitutional violations. The court applied the required
screening standards, dismissing some of the claims and requiring the
plaintiff to file an amended complaint upon court-approved forms. This
amended complaint was to cure all pleading deficiencies noted by the court,
and it was to incorporate all the plaintiff’s claims remaining from the original

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complaint and any claims that the plaintiff intended to pursue by his motion
to amend. In receipt of Mr. Kanatzar’s amended complaint, the court applies
the screening standards set out below.
Statutory Screening of Prisoner Complaints
A court must screen prisoners’ complaints which seek relief
against a governmental entity or an officer or an employee of a
governmental entity. 28 U.S.C. § 1915A(a). The screening court must
dismiss the entire complaint or any part of it, if it “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.

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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 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 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
right the plaintiff believes the defendant violated.” Nasious v. Two Unknown
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B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1163
(10th Cir. 2007).
Amended Complaint
Mr. Kanatzar’s amended complaint narrows his claims to three
counts under 42 U.S.C. § 1983 against the same four defendants, Brian
Cole, SCDC Director, Timothy Phelps, SCDC Major, Captain Rucker, SCDC
officer, and Mary Fletcher, food services supervisor at SCDC. He seeks only
injunctive relief. For his first count, Mr. Kanatzar alleges he requested a
Kosher diet and was placed on SCDC’s certified religious diet plan one week
later. However, he has been “made aware that” SCDC “does not maintain a
separate Kosher kitchen” and so he concludes that his meals are not being
prepared according to his religion’s tenets that require using containers and
utensils that have never held non-Kosher food. ECF# 7. As far as actions
taken by the individual defendants, Mr. Kanatzar alleges he submitted
requests that his meals be prepared in a manner “keeping Kosher” to Major
Phelps, and his request was not acknowledged or answered so he filed
another request and grievance. ECF# 7, p. 7. He further alleges submitting
similar requests to the defendants Cole and Fletcher and receiving no answer
or acknowledgment Id. There are no allegations against the defendant
Rucker in this count. The plaintiff asserts the defendants violated his rights
under the First and Fourteenth Amendment to pursue his sincerely-held
religious beliefs.
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For his second count, Mr. Kanatzar alleges he has been denied
adequate exercise opportunities while in segregation. Released from
segregation in July 18, 2017, Mr. Kanatzar alleges he returned to
segregation on November 13, 2017, and then requested from Captain
Rucker that exercise equipment be placed in the segregation recreation
cages. When his request was not answered or acknowledged, he filed with
Director Cole a grievance which also was not answered or acknowledged. He
asserts this denial of exercise equipment violates his Eighth Amendment
right against cruel and unusual punishment.
For his third count, Mr. Kanatzar alleges he is denied “hot or
warm water for shaving and washing” in the segregation unit. ECF# 7, p. 8.
As for showers, he alleges that “[s]egregation inmates are only allowed
showers on Monday, Wednesday, and Friday and provided access to only
very poor quality soap.” Id. He alleges sending requests to Captain Rucker
and Director Cole for hot water in the segregation cells and then filing a
grievance when his requests were not answered. He asserts the denial of hot
water for shaving and washing violates his Eighth Amendment right against
cruel and unusual punishment.
Personal Participation of Defendants
Mr. Kanatzar has alleged a sufficient basis for personal
participation on behalf of Director Cole for all three counts, on behalf of
Major Phelps for count one, on behalf of Supervisor Fletcher for count one,
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and on behalf of Captain Rucker for counts two and three. The defendants
are respectively dismissed from the other counts for failure to allege their
personal involvement.
Count One—Failure to Maintain a Separate Kosher Kitchen
The plaintiff’s amended complaint does not cure the failure to
allege any personal involvement by Captain Rucker. Because the plaintiff has
been careful to allege a claim based on what he “was made aware of” and
not on what he personally knows about how SCDC prepares his food to
“keep Kosher,” the court shall order a Martinez report. The plaintiff’s
allegation suggests speculation, and there are no specific supporting
allegations to cure this deficiency. The Court finds the proper processing of
this claim cannot be achieved without additional information from
appropriate officials. See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978).
In pro se prisoner litigation, the Tenth Circuit endorses the ordering of a
“Martinez report” where corrections officials undertake an investigation of
the events at issue and construct an administrative record from that
investigation. Id. at 319. “The purpose of a Martinez report is to ‘develop a
record sufficient to ascertain whether there are any factual or legal bases for
the prisoner's claims.’” Breedlove v. Costner, 405 Fed. Appx. 338, 343 (10th
Cir. 2010) (unpub.), cert. denied, 563 U.S. 965 (2011) (quoting Hall v.
Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991)). The court finds that proper
processing of plaintiff’s claim here cannot be achieved without additional
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information from appropriate officials of SCDC about the matters alleged in
the first count of Mr. Kanatzar’s amended complaint.
Count Two—Failure to Provide Adequate Exercise Equipment in
Segregation’s Recreation Cage
The plaintiff alleges a right under the Eighth Amendment to have
exercise equipment in the segregation recreation cages. “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 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
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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 court’s prior order pointed out that the plaintiff’s allegations
failed to allege with specificity the denial of exercise opportunities that would
approach a constitutional violation. He has not alleged any additional
circumstances to support an Eighth Amendment violation other than having
been returned to segregation and there being denied exercise equipment
again. See Slappy v. Frizzell, 5:14-CV-P185-GNS, 2015 WL 236921, at *4
(W.D. Ky. Jan. 16, 2015) (The allegation of being denied exercise equipment
does not state a § 1983 claim); Cooper v. CDCR, No. 2:13-CV-01233 DAD
P., 2014 WL 1125301, at *3 (E.D. Cal. Mar. 20, 2014)(“[M]erely denying
prisoners access to exercise equipment, by itself, is not a sufficiently serious
deprivation to give rise to a violation of the Eighth Amendment. East v.
California Dept. of Corrections, No. 1:09-CV-01739-DLB P, 2010 WL 346880
at *3 (E.D. Cal. Sept. 1, 2010).”); cf. Jordan v. Rowley, 1:16-CV-1261, 2017
WL 2813294, at *3 (M.D. Pa. June 29, 2017) (citing Austin v. Guarini, 1997
WL 47566 (E.D. Pa. 1997) (finding no Eighth Amendment violation where
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the prisoner was deprived of the opportunity to use the exercise equipment
in the gymnasium). The court dismisses this claim.
Count Three--Access to Hot Water within Segregation Cell
A fair reading of Mr. Kanatzar’s amended complaint is that he is
receiving hot showers three days a week, but that he does not have hot
water within his segregation cell for shaving and washing. Thus, this case is
unlike those where the courts have “found that a regimen of cold showers
may constitute a constitutional violation.” See Gipson v. Paquin, 2014 WL
11395455, at *5 (E.D. Wis. Mar. 25, 2014) (citing Tapia v. Sheahan, No. 975737, 1998 WL 919709, at *5 (N.D. Ill. Dec. 30, 1998); Gordon v. Sheahan,
No. 96-1784, 1997 WL 136699, at *7 (N.D. Ill. Mar. 24, 1997)) (both cases
also involved lack of heat as an additional confinement condition). “Because
routine discomfort is part of the penalty that criminal offenders pay for their
offenses against society, only those deprivations denying the minimal
civilized measure of life's necessities' are sufficiently grave to form the basis
of an Eighth Amendment violation.” Hudson v. McMillian, 503 U.S. 1, 9
(1992)(internal quotation marks and citations omitted). Thus, to meet the
objective component of an Eighth Amendment conditions-of-confinement
claim, “extreme deprivations are required.” Id. at 8-9. Having to use cold
water to shave and to wash your hands and face is not sufficiently severe or
serious as to arguably constitute the denial of the minimal civilized measure
of life’s necessities. Combining this with the denial of exercise equipment
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does not produce the deprivation of an “identifiable human need such as
food, warmth, or exercise.” Craig v. Eberly, 164 F.3d 490, 495 (10th Cir.
1998) (internal quotation marks and citation omitted). The Eighth
Amendment does not entitle inmates to the “’amenities, conveniences and
services of a good hotel.’” Murnahan v. Daily, 1990 WL 203139, at *3 (D.
Kan. Nov. 28, 1990) (quoting Harris v. Fleming, 839 F.2d 1232, 1235-36
(7th Cir. 1988)). The court dismisses count three for failure to allege an
Eighth Amendment violation.
IT IS THEREFORE ORDERED that counts two and three of the
plaintiff’s amended complaint are dismissed for failure to state a claim upon
which relief can be granted, and the defendant Rucker who was named as a
defendant on only these two counts is dismissed as a party
IT IS FURTHER ORDERED that,
(1)

The clerk of the court shall prepare waiver of service forms for Brian

Cole, Director of SCDC; Timothy Phelps, Major of SCDC; and Mary Fletcher,
Food Service Supervisor of SCDC, pursuant to Rule 4(d) of the Federal Rules
of Civil Procedure, to be served upon them at no cost to plaintiff. The report
required herein shall be filed no later than sixty (60) days from the date of
this order, unless the time is extended by the Court. The answer or other
responsive pleading shall be filed within thirty (30) days after the Martinez
report is filed.

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(2)

Officials responsible for the operation of the SCDC, namely Director

Brian Cole, are directed to undertake a review of the subject matter of the
amended complaint and specifically the allegations in count one:
a.

To ascertain the facts and circumstances;

b.

To consider whether any action can and should be taken by the

institution to resolve the subject matter of the complaint;
c.

To determine whether other like complaints, whether pending in this

court or elsewhere, are related to this amended complaint and should be
considered together.
(3)

Upon completion of the review, a written report shall be compiled

which shall be attached to and filed with the defendant’s answer or response
to the complaint. Statements of all witnesses shall be in affidavit form.
Copies of pertinent rules, regulations, official documents, and, wherever
appropriate, the reports of medical or psychiatric examinations shall be
included in the written report.
(4)

Authorization is granted to the officials of the SCDC to interview all

witnesses having knowledge of the facts, including the plaintiff.
(5)

No answer or motion addressed to the amended complaint shall be

filed until the Martinez report required herein has been prepared.
(6)

Discovery by plaintiff shall not commence until plaintiff has received

and reviewed defendant’s answer or response to the complaint and the

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report ordered herein. This action is exempted from the requirements
imposed under Fed. R. Civ. P. 26(a) and 26(f).
Dated this 9th day of March, 2018, Topeka, Kansas.

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

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