McCoy (ID 76894) v. Heimgartner et al

Filing 4

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted until January 22, 2018, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why Plaintiff's Complaint should not be dism issed. Plaintiff is also granted until January 22, 2018, 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 12/22/17. Mailed to pro se party Deron McCoy, Jr. by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DERON McCOY, JR.,
Plaintiff,
v.

CASE NO. 17-3139-SAC

JAMES HEIMGARTNER, et al.,
Defendants.
MEMORANDUM AND ORDER
AND ORDER TO SHOW CAUSE
Plaintiff DeRon McCoy, Jr., 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. Although Plaintiff is currently incarcerated
at the Hutchinson Correctional Facility in Hutchinson, Kansas, the events giving rise to his
Complaint took place during his incarceration at the El Dorado Correctional Facility in El Dorado,
Kansas (“EDCF”). Plaintiff names as Defendants: James Heimgartner, EDCF Warden; SORT
Member Goad; First Sergeant Patterson; First Sergeant Carrell; and CO John Doe. Plaintiff sues
each Defendant in their individual and official capacities. Plaintiff seeks relief in the form of
nominal damages, compensatory damages, punitive damages, a declaratory judgment, and a
permanent injunction directing Defendant Heimgartner and/or KDOC officials to amend the
KDOC strip search policy.
Plaintiff alleges that on or about October 27, 2016, while waiting to be transported from
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EDCF to the Reno County Detention Center, Plaintiff was escorted in handcuffs from his cell to
one of the strip-out cages in B-1 Cellhouse by SORT Member Goad. After he was locked in the
strip-out cage, Plaintiff’s handcuffs were removed and he was directed by Goad to “strip-out.”
Plaintiff was very familiar with the strip-out procedure and began undressing and handing Goad
his articles of clothing. After Goad searched Plaintiff’s clothing, he directed Plaintiff to run his
hands through his hair , show behind his ears, open his mouth, show his gums, lift his tongue, show
his armpits, and to lift his “privates.” Plaintiff complied with all of these requests. Defendant
Goad then told Plaintiff to turn around, spread his buttocks, bend, squat and cough. Plaintiff
obeyed the directive, bending over as much as the small strip-out cage would allow and squatting
parallel to the ground. Defendant Goad stated that it was not good enough and directed Plaintiff
to squat further down. Plaintiff complied again, bending over as much as he could and squatting
further down. This caused Plaintiff to experience extreme pain in the form of sharp, shooting
pains starting in his lower back and then shooting down his legs. Defendant Goad stated that he
wanted to see Plaintiff fully squat with his “butt all the way to the floor.” Plaintiff responded that
he could not comply due to a back injury and described his back injury and medical restriction.
Defendant Patterson had been standing a few feet away and had been observing Plaintiff’s
strip search. When Defendant Patterson approached the strip-out cage, Plaintiff explained to him
that his back injury prevented him from squatting all the way to the floor. Defendant Goad then
directed Plaintiff to start the strip-search procedure over while Defendant Patterson watched.
During the procedure, Defendant Patterson stated “come on you can drop it further than that.”
Plaintiff interpreted this statement as a sexual innuendo derived from a rap song by Snoop Dogg
titled “Drop it Like It’s Hot.”

Plaintiff immediately straightened up and turned around.

Defendants Goad and Patterson were smiling. Plaintiff grabbed his clothing and began getting

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dressed while yelling out to the other officers that he was being sexually harassed and there was a
PREA violation.
After Defendants Goad and Patterson left the strip-out cage area Plaintiff yelled that he
wanted a grievance form and a pencil. Defendant Patterson then brought the Plaintiff a grievance
form and a golf pencil. When Plaintiff informed Defendant Patterson that he was going to write a
grievance on Defendants Goad and Patterson, Defendant Patterson advised Plaintiff that an SST
supervisor would be in route.
A short time later SST Member Carrell arrived and Plaintiff explained the situation.
Defendant Carrell left and returned after speaking to Defendant Goad. Carrell indicated that he
would have to stand by his fellow officer and would also require Plaintiff to squat fully down butt
to the floor. Plaintiff again informed Carrell of his back injury and medical restriction that
prevented him from performing such a maneuver. Plaintiff also told Carrell that Plaintiff was
very familiar with the KDOC strip-search procedure and squatting all the way to the floor had
never been a part of it. Carrell left and returned later to inform Plaintiff that he had spoken with
medical and verified Plaintiff’s back injury and medical restrictions. Carrell said he would
require Plaintiff to perform the strip-search procedure one more time and that Plaintiff should
squat down as far as he could. Plaintiff complied, squatting down as far as he could and once
again felt sharp, shooting pain that started in his lower back and went down his legs. Plaintiff was
then allowed to dress again.
Defendant Carrell and an unidentified SST Member then escorted Plaintiff to Admissions
and Discharge (“A&D”) at EDCF. Plaintiff was in constant observation of Defendant Carrell and
the SST Member for the entire trip up until he was placed in an isolated single-man holding cell.
Plaintiff was then taken out of handcuffs after he was locked in the cell. Defendant John Doe then

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came to Plaintiff’s holding cell and Plaintiff gave him his grievance for filing. Approximately 20
to 30 minutes later John Doe returned to the holding cell and told Plaintiff that he needed to
perform the strip-search procedure once again. Plaintiff complained to John Doe that he had
already been strip-searched four times and had been isolated from any other inmates and under the
observation of correctional officers. John Doe then stated that it was policy that all inmates to be
transported to another facility must be strip-searched before being transported from A&D and it
didn’t matter if he had been strip-searched before leaving the B-1 Cellhouse. Plaintiff complied
with the strip search and was then transported to the Reno County Detention Center. Plaintiff was
transported back to EDCF on November 1, 2016.
Plaintiff alleges that from October 27 to November 17, 2016, Plaintiff experienced extreme
pain in his lower back extending down his legs to his feet, in the form of sharp shooting pains.
Plaintiff also experienced tingling numbness in his legs every morning. Plaintiff also began to
experience severe anxiety requiring counseling and prescription medication, and felt sexually
degraded, humiliated, and fearful and paranoid that he would be sexually harassed or worse by the
Defendants. Plaintiff received a disciplinary report for disobeying orders and interfering with
official duties for “not fully squatting butt all the way to the floor” on October 27, 2016. Plaintiff
was found not guilty at the disciplinary hearing.
Plaintiff alleges that his Eighth Amendment right to be free from cruel and unusual
punishment was violated when Defendant Goad forced him to twice perform a squat maneuver
that caused Plaintiff extreme pain, and Defendant Patterson violated his rights by failing to
intervene and by making a sexual innuendo. Plaintiff alleges that Defendant Carrell violated his
rights by forcing him to do the squat maneuver a fourth time.

Plaintiff also alleges that

Defendants Goad, Carrell, and John Doe, violated his right to be free from unreasonable search

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and seizure when they forced him to perform strip searches after he had already been properly strip
searched. Plaintiff alleges that Defendant Heimgartner, Warden at EDCF, violated Plaintiff’s
rights by developing and implementing the strip search policy that requires inmates to be
strip-searched before they leave the cellhouse and then once again prior to them leaving A&D.
Plaintiff alleges that Defendant Goad violated his First Amendment right to freedom of
speech by writing a disciplinary report on Plaintiff in retaliation for Plaintiff filing a grievance on
Defendants Goad and Patterson.
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

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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

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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.
2. Fourth Amendment Claims
Plaintiff alleges that the strip searches violated his Fourth Amendment right to be free from
unreasonable searches. Although the Supreme Court has foreclosed any Fourth Amendment
challenge to the search of a prison cell, the court “has recognized a qualitative difference between
property searches and searches of a prisoner’s person.” Dunn v. White, 880 F.2d 1188, 1191

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(10th Cir. 1989). The Supreme Court in Bell v. Wolfish, preserved a prisoner’s privacy interest in
the integrity of his own person, and applied a traditional Fourth Amendment analysis to a
constitutional challenge by prisoners to personal body searches. Dunn, 880 F.2d at 1191 (citing
Bell v. Wolfish, 441 U.S. 520, 558 (1979)).
The Supreme Court developed a balancing test to evaluate the reasonableness of a strip
search of a pretrial detainee. Bell, 441 U.S. at 559. Factors to be considered in the balancing
process include: (1) the scope of the particular intrusion; (2) the manner in which the search is
conducted; (3) the justification for initiating it; and (4) the place in which the search is conducted.
Id. Given these considerations, Bell held that visual body-cavity strip searches without probable
cause were reasonable in light of correctional security needs. Id. at 559–60; see also Leek v.
Miller, 698 F. App’x 922, 926 (10th Cir. 2017) (unpublished) (stating that “strip searches of
prisoners are not per se prohibited”) (citing Farmer v. Perrill, 288 F.3d 1254, 1260 (10th Cir.
2002) (recognizing that prisoner strip searches must be “reasonably related to a legitimate
penological interest” (emphasis omitted))).
Plaintiff challenges the KDOC’s policy regarding strip searches for inmates being
transferred to a different facility. “In addressing this type of constitutional claim courts must
defer to the judgment of correctional officials unless the record contains substantial evidence
showing their policies are an unnecessary or unjustified response to problems of jail security.”
Florence v. Board of Chosen Freeholders of Cty. Of Burlington, 566 U.S. 318, 322–23 (2012).
Plaintiff fails to allege the lack of a legally sufficient justification for the search, which was done in
anticipation of his transfer from one facility to another. The Court in Bell:
emphasized that “preserving internal order and discipline are
essential goals that may require limitation or retraction of the
retained constitutional rights of convicted prisoners.” . . . . “Prison
officials must be free to take appropriate action to ensure the safety
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of inmates and corrections personnel . . . . Accordingly, we have
held that even when an institutional restriction infringes a specific
constitutional guarantee, . . . the practice must be evaluated in light
of the central objective of prison administration, safeguarding
institutional security.” . . . Thus, on issues of “internal order and
discipline” or “institutional security,” courts should accord
“wide-ranging deference” to prison officials, unless there is
“substantial evidence in the record to indicate the officials have
exaggerated their response.”
Dunn, 880 F.2d at 1191 (quoting Bell, 441 U.S. at 546–48) (internal citations omitted). Plaintiff’s
Fourth Amendment claims are subject to dismissal for failure to allege sufficient facts to show a
constitutional violation.
3. Eighth Amendment Claims
Plaintiff also alleges that the Defendants violated his right to be free from cruel and unusual
punishment when they required him to attempt the squat maneuver during his strip search. The
Eighth Amendment guarantees a prisoner the right to be free from cruel and unusual punishment.
“[D]eliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and
wanton infliction of pain’ . . . proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S.
97, 104 (1976) (citation omitted).
The “deliberate indifference” standard includes both an objective and a subjective
component. Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir. 2005) (citation omitted). In the
objective analysis, the deprivation must be “sufficiently serious,” and the inmate must show the
presence of a “serious medical need,” that is “a serious illness or injury.” Estelle, 429 U.S. at 104,
105; Farmer v. Brennan, 511 U.S. 825, 834 (1994), Martinez, 430 F.3d at 1304 (citation omitted).
A serious medical need includes “one that has been diagnosed by a physician as mandating
treatment or one that is so obvious that even a lay person would easily recognize the necessity for

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a doctor’s attention.” Martinez, 430 F.3d at 1304 (quoting Sealock v. Colorado, 218 F.3d 1205,
1209 (10th Cir. 2000)).
“The subjective component is met if a prison official knows of and disregards an
excessive risk to inmate health or safety.” Id. (quoting Sealock, 218 F.3d at 1209). In measuring
a prison official’s state of mind, “the official must both be aware of 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 1305 (quoting Riddle v. Mondragon, 83 F.3d 1197, 1204 (10th Cir. 1996)).
Plaintiff’s claims are subject to dismissal for failure to allege that any defendant acted with
deliberate indifference. 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 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.
Plaintiff’s allegations show that staff attempted to confer with each other and seek out a
supervisor in attempting to resolve the situation. Although they continued to direct Plaintiff to
attempt to squat during the search, they ultimately confirmed Plaintiff’s back injury with medical
staff and told him he need only squat as far as he could. Such allegations do not rise to the level of
a claim of cruel and unusual punishment under the Eighth Amendment; and are, at most, grounds
for a negligence claim in state court. Id.

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Plaintiff’s claim based on the perceived “sexual innuendo” resulting from Defendant
Patterson stating “come on you can drop it further than that,” does not rise to the level of a
constitutional violation.

“Mere verbal threats or harassment do not rise to the level of a

constitutional violation unless they create ‘terror of instant and unexpected death.’” Alavarez v.
Gonzales, 155 F. App’x 393, 396 (10th Cir. 2005) (citing Northington v. Jackson, 973 F.2d 1518,
1524 (10th Cir. 1992)); see also McBride v. Deer, 240 F.3d 1287, 1291 n.3 (10th Cir. 2001)
(“[A]cts or omissions resulting in an inmate being subjected to nothing more than threats and
verbal taunts do not violate the Eighth Amendment.”); Ragland v. Romer, 73 F.3d 374 (10th Cir.),
cert. denied, 518 U.S. 1025 (1996) (“Courts have consistently held that acts or omissions resulting
in an inmate being subjected to nothing more than threats and verbal taunts do not violate the
Eighth Amendment.”). Plaintiff’s allegations do not suggest a show of deadly force, thus failing
to create “terror of instant and unexpected death.”
4. First Amendment Retaliation Claim
Plaintiff alleges that he received a disciplinary report in retaliation for filing grievances on
Defendants Goad and Patterson. “[I]t is well established that an act in retaliation for the exercise
of a constitutionally protected right is actionable under [42 U.S.C.] Section 1983 even if the act,
when taken for a different reason, would have been proper.” Smith v. Maschner, 899 F.2d 940,
947 (10th Cir. 1990) (citations omitted). The Tenth Circuit has held that:
Government retaliation against a plaintiff for exercising his or her First
Amendment rights may be shown by proving the following elements: (1) that the
plaintiff was engaged in constitutionally protected activity; (2) that the defendant’s
actions caused the plaintiff to suffer an injury that would chill a person of ordinary
firmness from continuing to engage in that activity; and (3) that the defendant’s
adverse action was substantially motivated as a response to the plaintiff’s exercise
of constitutionally protected conduct.
Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007).

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However, an “inmate claiming retaliation must allege specific facts showing retaliation
because of the exercise of the prisoner’s constitutional rights.” Fogle v. Pierson, 435 F.3d 1252,
1264 (10th Cir. 2006) (quotations and citations omitted). Thus, for this type of claim, “it is
imperative that plaintiff’s pleading be factual and not conclusory.

Mere allegations of

constitutional retaliation will not suffice.” Frazier v. Dubois, 922 F.2d 560, 562 n. 1 (10th Cir.
1990). “To prevail, a prisoner must show that the challenged actions would not have occurred
‘but for’ a retaliatory motive.” Baughman v. Saffle, 24 F. App’x 845, 848 (10th Cir.2001) (citing
Smith v. Maschner, 899 F.2d 940, 949–50 (10th Cir. 1990); Peterson v. Shanks, 149 F.3d 1140,
1144 (10th Cir. 1998)).
Plaintiff’s claims of retaliation are subject to dismissal for failure to allege adequate facts
in support of this claim. Plaintiff fails to allege that the Defendants’ actions caused the Plaintiff to
suffer an injury that would chill a person of ordinary firmness from continuing to engage in that
activity. Plaintiff allegations regarding retaliation are generally conclusory, lacking facts to
demonstrate any improper retaliatory motive.
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

1

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 (17-3139-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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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 THAT Plaintiff is granted until January 22, 2018, in
which to show good cause, in writing, to the Honorable Sam A. Crow, 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 January 22, 2018, 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 22nd day of December, 2017.

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

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