Broyles v. Presley et al

Filing 22

MEMORANDUM AND ORDER ENTERED: Plaintiff's claims under 42 U.S.C. § 1983 are dismissed pursuant to § 1915A(b)(1) for failure to state a claim upon which relief may be granted. Signed by U.S. District Senior Judge Sam A. Crow on 03/06/18. Mailed to pro se party John E. Broyles, II by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN ELBERT BROYLES II,
Plaintiff,
vs.

Case No. 17-3174-SAC

COLE PRESLEY, TINA MILLER,
CITY OF SALINA, and
STATE OF KANSAS,
Defendants.
MEMORANDUM AND ORDER
When the plaintiff John Elbert Broyles II filed his civil rights
complaint, 42 U.S.C. § 1983, he was an inmate at the Graham County Jail.
ECF# 1, p. 1. After the court’s screening order, Mr. Broyles informed the
court that he had been returned to Saline County Jail. ECF# 12, p. 1. Even
more recently, the court has learned from Mr. Broyles’ filings that Saline
County has again transferred him to another county’s facility. Mr. Broyles is
currently housed at Cloud County Jail. In his latest letter addressed to the
Clerk of the Court, Mr. Broyles asks if he is “allowed to include the Cloud
County Jail” and its employees as defendants in this case. ECF#18. Having
filed a separate complaint that alleges unrelated events separate and distinct
in time, facility and actors, the court filed Mr. Broyles’ complaint as a
separate action. See Broyles v. Marks, No. 18-3030-SAC. In the instant
case, Mr. Broyles claims are limited to those which he has alleged in his
original complaint.
1

BACKGROUND
As filed, Broyles’ complaint names four defendants in his caption,
but his factual allegations can only be linked with two of them, Cole Presley,
as sheriff and administrator of Graham County Jail, and Tina Miller, as
supervisor of classifications for diet and administrative status at Saline
County Jail. ECF# 1. Consequently, on its screening, the court dismissed the
other two named defendants, City of Salina and State of Kansas. ECF# 6,
pp. 5-6.
Broyles’ complaint includes three causes of action. For his first
count, he alleges his First Amendment right to follow the dietary tenets of
his Jewish religion were violated when he was serving his sentence at the
Saline County Jail and receiving Kosher meals only to have the Saline
County Jail transfer him to the Graham County facility where no Kosher
meals were provided. He made numerous grievances to both jails asking for
a transfer back to Saline County Jail and for a kosher meal to be provided,
but his grievances and requests were ignored. For his second count, he
alleges the confinement conditions at the Graham County Jail violated his
Eighth Amendment rights. Specifically, he was denied recreation and outdoor
exercise and denied a proper nutritional diet because all food was prepared
by “microwave” and was “totally unhealthy.” For his third count, he alleges
his Fourteenth Amendment right to equally exercise his religion practices the

2

same as other prisoners in Saline County jail “or [in] any other facility of
confinement” were violated. ECF# 1, p. 6.
As for the factual allegations in his complaint, Broyles says he
was serving a jail sentence at Saline County Jail since November 21, 2016,
when he was transferred to the Graham County Jail on June 27, 2017. Id. at
p. 3 He practices the “Jewish faith, ‘Yahweh Assembly in Yahshua’” and
“adhere(s) to a strict ‘kosher’ religion diet.” Id. at p. 2. At the Saline County
Jail, he had been receiving a “partial ‘Kosher’ diet.” Id. at p. 3. As evident
from the above summary, Broyles’ complaint includes no claim based on the
Kosher meals received at the Saline County Jail. Instead, his only claim
related to the Saline County Jail is based on his transfer to a facility where
his kosher diet requirements could not be met and on the denial of his
requests for another transfer. Regarding the Graham County Jail, Broyles
complains about the lack of Kosher meals and the following conditions:
The entire diet (menu) this facility offers is prepared by microwave
oven. They provide no milk, fresh vegetables or fruits. No nutrients
whatsoever! Lastly, no space or recreation area, nor opportunity to go
outside or to a specific recreation area.
ECF# 1, p. 3. He alleges having filed grievances with both jails seeking
transfers back to the Saline County Jail. He denies receiving formal
responses to his grievances. For relief, Mr. Broyles requests housing “at a
facility that provides a Kosher diet” and monetary awards from Saline
County Jail, Graham County Jail, and the State of Kansas. Id. at p. 7.

3

Pursuant to its statutory duty, the court initially screened
Broyles’ complaint looking for any claim that was “frivolous, malicious, or
fails to state a claim upon which relief can be granted” or that sought
“monetary relief from a defendant who is immune from such relief,” 28
U.S.C. § 1915A(b). The court applied the following standards. 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). All well-pleaded allegations in the complaint are accepted as true.
Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006). But, “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). Courts “look to the specific allegations
in the complaint to determine whether they plausibly support a legal claim
for relief.” Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (citations
omitted).
In its screening order, the court noted that it appeared that Mr.
Broyles could allege against a Saline County Jail official a claim for knowingly
transferring him to interfere with the exercise of his religious belief in a
kosher diet and for then not transferring him back after he complained about
the lack of a kosher diet. The court also said it appeared that Mr. Broyles
could allege against a Graham County Jail official a claim for failing to
provide him a kosher diet and for denying him all outside exercise for
4

months. The Court, however, found that the proper processing of these
claims could not go forward without additional information from appropriate
officials at both jails. See Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir.
1978). The Martinez report was to provide an opportunity for jail officials to
investigate the events in question and to construct an administrative record
from that investigation. Id. at 319. This report’s purpose is to create a
sufficient record from which “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)). “This
process is designed to aid the court in fleshing out possible legal bases of
relief from unartfully drawn pro se complaints, not to resolve material factual
issues.” Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir. 1992)
(citation omitted).
The defendant B. Cole Presley, sheriff of Graham County,
Kansas, averred that his office is responsible for operating the county jail
which is the only detention facility in Graham County. His office is comprised
of three full-time and one part-time law enforcement officers and four fulltime dispatchers. None of the employees work full-time in jail operations,
and both dispatchers and officers “share the responsibility of meal and
medication preparation and management.” ECF# 9, p. 2. Graham County
has contracted with Saline County to hold inmates, and the plaintiff came to
5

Graham County jail pursuant to this contract hold. When Mr. Broyles arrived,
he informed staff of his religious requirements for diet, and he was told the
jail could only accommodate the requirement of no pork products being
served. Sheriff Presley avers that substitute products were purchased and
served and that the plaintiff’s daily menu was adjusted with only one
recorded incident of pork sausage being provided accidentally. Sheriff
Presley avers that a review of the plaintiff’s complaints or requests show he
first requested a transfer back to Saline County on September 18, 2017. In
that request, Mr. Broyles stated that he had made multiple attempts for
transfer. Sheriff Presley concedes that Graham County jail has no “outside
exercise area of any kind to afford inmates a dedicated area to be outside in
a secure manner.” ECF# 9, p. 4. He further states:
Given the small area within the jail, when the population is at
12, exercise can be difficult. As this applies to Mr. Broyles, a weekly
census of the jail population shows an average weekly population of 4
inmates providing for the space needed to exercise with plenty of
space (Exhibit H). A review of complaints or requests from Mr. Broyles
file (Exhibit E) also shows that no request to go outside or for other
accommodations for exercise have been made by him.
ECF# 9, p. 5.
Mr. Broyles has filed a lengthy response to Sheriff Presley’s
affidavit. ECF# 16. He primarily argues inferences to be drawn from the
affidavit and from the attached exhibits and admissions as showing that the
jail was not equipped to and failed to provide him Kosher meals. He notes
that the jail did not provide Kosher meals but only attempted to remove
6

pork products from his meals and occasionally failed at this. Mr. Broyles is
also critical of the jail staff’s efforts at communicating with and securing his
transfer back to Saline County because of his unmet dietary needs. Finally,
he alleges jail staff refused his grievances.
Brent Melander, undersheriff of Saline County, Kansas submitted
his affidavit in response to the court’s request for a Martinez report. He
avers that Broyles did not indicate a religious preference upon initial booking
but that he requested a kosher diet after booking and did receive a kosher
diet at the Saline County jail until his transfer in June of 2017. With regards
to transferring Mr. Broyles, Mr. Melander avers:
8. When the inmate population at the Saline County Jail becomes high,
inmates are selected for transfer to alternative housing facilities.
9. A number of factors go into selection of inmates for transfer
including inmates who are not a problem at the jail, inmates without
upcoming court dates, and inmates with no medical concerns.
10. Plaintiff met the criteria to be transferred because he was
sentenced until May of 2018 and had no other court appearances.
Because Plaintiff did not have any court appearances, Graham County
was selected to avoid travel between the jails.
11. The sole reason Plaintiff was transferred to Graham County was to
alleviate overcrowding at the Saline County Jail.
12. Plaintiff was transferred back to Saline County on December 5,
2017 for a medical issue. Plaintiff currently resides in the Saline
County Jail in order to address some of his medical issues.
13. If there is an overcrowding issue again and Plaintiff meets the
criteria for transfer, he may be transferred to another housing facility.
14. Saline County has not violated Plaintiff’s religious rights as his
transfer was due to overcrowding in the Saline County Jail.
ECF# 13, p. 2.
Mr. Broyles has filed a response to this Martinez report too. He
disputes the booking date found in Melander’s affidavit as contradicted by
7

his journal entry of conviction. Mr. Broyles now asserts that Saline County
transferred him to Ottawa County Jail on December 12, 2016, and that his
later transfer in June of 2017 to the Graham County Jail was not from the
Saline County Jail but from the Ottawa County Jail. ECF# 17, p. 2. This
latest assertion stands in contrast to what Broyles alleged in his complaint as
of October 2, 2017, “I was transferred to the Graham County, on June 27,
2017. But, I have been detained at the Saline County Jail, since November
21, 2016.” ECF# 1, p. 3. Broyles, however, acknowledges that his “religious
tenets were always accommodated” at the Ottawa County facility, and “he
has never directed a claim until, his transfer to the Graham County facility.”
ECF# 17, p. 3. Broyles notes that the known religious diet requirements of
an inmate are not a listed factor in Saline County’s decision to transfer.
Broyles also highlights the absence of any explanation for not addressing his
grievances and requests for a transfer to a facility where his kosher diet
needs could be met.
In December of 2017, Mr. Broyles notified the court that his
address had changed to Saline County Jail. ECF# 10. Over the next three
weeks, he sent two letters to the court that were filed. ECF#11 and 12. In
those letters, Mr. Broyles complains about the Saline County Jail’s failed
attempts to provide Kosher meals to him and about the Jail’s officers acting
in what he believes is retaliatorily motivated.

8

The record shows two filings subsequent to the Martinez reports
and responses. One is a letter from Broyles to the Clerk of the Court asking
to add the Cloud County Jail to his and its employees to this action or having
his claims filed as a separate action. ECF# 18. In this letter, Broyles asks the
court to enter a protective order that would prevent his removal from Cloud
County Jail until this case is resolved. The other filing is the answer of the
defendant Tina Miller. ECF# 19.
“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 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). Thus, 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.

9

The official capacity claim for damages against Sheriff Presley is
subject to dismissal under the Eleventh Amendment. Claims for damages
against state employees in their official capacities are regarded as claims
against the state and are thus likewise barred by the Eleventh Amendment.
It is well established that official capacity “claims for . . . , monetary
damages, and retroactive declaratory relief are barred by the Eleventh
Amendment.” Meiners v. University of Kansas, 359 F.3d 1222, 1232 (10th
Cir. 2004). The Tenth Circuit has afforded Eleventh Amendment immunity to
Kansas county jails and sheriffs. See Hunter v. Young, 238 Fed. Appx. 336,
338 (10th Cir .2007). See also Nielander v. Board of County Com’rs of
Republic, Kan., 582 F.3d 1155 (10th Cir.2009) (reaching same result as to
Kansas county attorneys). The court agrees with this analysis:
Created by the state legislature through Article 9 § 2 of the Kansas
Constitution and employing discrete and autonomous powers
recognized by statute, Kansas sheriffs are state officers supported by
particular provisions in the state statutes. See Steadfast Ins. Co. v.
Agricultural Ins. Co., 507 F.3d 1250, 1253 (10th Cir.2007). Although
these officers are locally funded, and generally operate in their
particular county, these factors are respectively not dispositive or of
limited importance. McMillian v. Monroe County, 520 U.S. 781 (1997).
See Wilson v. City of Chanute, 43 F.Supp.2d 1202, 1216 (D. Kan.
1999). More importantly, sheriffs are state officers given particular
charge of jails under state statutes. The court finds that, as to the
charges advanced here, Bitler is protected by the Eleventh
Amendment.
Self v. County of Greenwood, 12-1317-JTM, 2013 WL 615652, at *2 (D.
Kan. Feb. 19, 2013). Eleventh Amendment immunity is subject to the
exception of Ex parte Young, 209 U.S. 123 (1908), which permits suits
10

against state officials in their official capacity “seeking to enjoin alleged
ongoing violations of federal law.” Crowe & Dunlevy, P.C. v. Stidham, 640
F.3d 1140, 1154 (10th Cir. 2011). A claim for monetary damages against
the defendant Presley in his official capacity is dismissed.
As for any official capacity claim against Ms. Miller, the plaintiff
in advancing a § 1983 claim against a municipality must show that he was
harmed by an official policy. See Monell v. Dep't of Social Servs., 436 U.S.
658, 691 (1978). Liability exists “only where the municipality itself causes
the constitutional violation at issue.” Canton v. Harris, 489 U.S. 378, 385
(1989) (citing Monell, 436 U.S. at 694–95) (emphasis in original). To bring a
claim for a subordinate municipal actor’s role, the plaintiff must allege: “(1)
the defendant promulgated, created, implemented or possessed
responsibility for the continued operation of a policy that (2) caused the
complained of constitutional harm, and (3) acted with the state of mind
required to establish the alleged constitutional deprivation.” Dodds v.
Richardson, 614 F.3d 1185, 1199–1200 (10th Cir. 2010). The plaintiff’s
complaint fails to allege any municipal liability against the defendant Miller.
See Hachmeister v. Kline, 2013 WL 237815 at *4.
Insofar as any damage claims against the defendants Presley or
Miller in their individual capacities, the plaintiff has failed to allege facts
sufficient to support a claim for compensatory damages under the Free
Exercise clause. Federal law precludes prisoners from bringing federal
11

actions “for mental or emotional injury suffered while in custody without a
prior showing of physical injury.” 42 U.S.C. § 1997e(e). This court has held:
Plaintiff fails to state sufficient facts to support a claim for
compensatory damages under the Free Exercise Clause. This is
because 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). The Tenth
Circuit has held that this limitation on recovery applied to a plaintiff's
First Amendment claim that prison officials denied him a Kosher diet
(Ciempa, 745 F.Supp.2d at 1201) (citing Searles v. Van Bebber, 251
F.3d 869, 876–77 (10th Cir.2001)) and to claims for actual or
compensatory damages. Searles, 251 F.3d at 879, 881; see also,
Sisney v. Reisch, 674 F.3d 839, 843 (8th Cir.), cert. denied, 133 S.Ct.
359 (2012); Nasious v. Robinson, 2010 WL 1268135, *8, n. 6 (D.
Colo. Feb. 17, 2010) (unpublished), aff'd in part dismissed in part, 396
Fed. Appx. 526 (10th Cir. Sept. 29, 2010). Mr. Hughes has not
described any physical injury caused by the alleged deprivations of his
constitutional rights. Accordingly, his claims for actual or
compensatory damages are subject to being dismissed unless he
presents additional facts showing a prior physical injury.
Hughes v. Heimgartner, 2013 WL 760600, at *3 (D. Kan. Feb. 27, 2013). As
in Hughes, Broyles here has not alleged any physical injury, and the
Martinez report is devoid of any circumstances, events, or details from which
to infer any possibility of a physical injury. Broyles’ claims in his original
complaint fail to allege any factual and legal basis for compensatory
damages, and there appears to be nothing of record established by the
Martinez report and Broyles’ response that would support the same. In sum,
the claims for compensatory damages are dismissed, because neither the
specific allegations in the complaint nor the facts as presented plausibly
support any such claim.

12

In alleging constitutional violations, the plaintiff’s complaint must
include “facts sufficient to show (assuming they are true) that the
defendants plausibly violated their constitutional rights, and that those rights
were clearly established at the time.” Robbins v. Oklahoma, 519 F.3d 1242,
1249 (10th Cir. 2008). The plaintiff must “make clear exactly who is alleged
to have done what to whom, to provide each individual with fair notice as to
the basis of the claim against him or her, as distinguished from collective
allegations against the state.” Id. at 1250. “Allegations of personal
participation, like all other factual averments, must be specific, not
conclusory.” Hachmeister v. Kline, 2013 WL 237815 at *3 (D. Kan. Jan. 22,
2013) (internal quotation marks and citations omitted). The plaintiff’s
complaint is vague in alleging what either defendant specifically did to
violate his constitutional rights.
The complaint identifies Ms. Miller as classifications
administrator, but then refers to the “Saline County Jail” as deciding to
transfer him and as refusing his requests for transfer from Graham County
Jail. In his response to Undersheriff Melander’s affidavit, Mr. Broyles
mentions Ms. Miller’s involvement only in his initial booking to the Saline
County Jail, but there is no claim alleged in his complaint as to his status or
food received while at the Saline County Jail. Mr. Broyles does not allege
that Ms. Miller is responsible for the decision to transfer him to Graham
County Jail or for the refusal to act upon his grievances and transfer him
13

back to Saline County Jail. He does not allege that Ms. Miller instituted any
policy for transferring inmates without consideration for their religious
dietary requirements or that she is responsible for Graham County Jail not
providing kosher meals. Indeed, there is nothing alleged in the complaint
and nothing found in the Martinez report or in Mr. Broyles’ response to show
Ms. Miller’s involvement in the transfer decisions or in the denial of his
transfer requests. For that matter, the plaintiff’s complaint is devoid of
allegations that shows his transfer and denial of transfer were done
consciously and intentionally to interfere with his free exercise rights.
Gallagher, 587 F.3d at 1069. Absent such allegations, Mr. Broyles’ complaint
fails to state a factual or legal basis for a First Amendment violation against
Ms. Miller under § 1983. See Watkins v. Rogers, 525 Fed. Appx. 756, 759
(10th Cir. 2013). Nor has Mr. Broyles alleged any individual actions taken by
Sheriff Presley as to show personal involvement under § 1983, which “does
not authorize liability under a theory of respondeat superior.” Brown v.
Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011).
Finally, as to any claim for prospective injunctive relief against
Sheriff Presley, it is subject to dismissal for mootness. The Tenth Circuit has
held:
Where the prisoner's claims for declaratory or injunctive relief relate
solely to the conditions of confinement at the penal institution at which
the prisoner is no longer incarcerated, courts have concluded that they
are unable to provide the prisoner with effective relief. Because a
prisoner's transfer or release “signal[s] the end of the alleged
deprivation of his constitutional rights,” McKinnon v. Talladega Cnty.,
14

Ala., 745 F.2d 1360, 1362 (11th Cir. 1984), an entry of equitable relief
in his favor “would amount to nothing more than a declaration that he
was wronged, and would have no effect on the defendants' behavior
towards him.” Green [v. Branson], 108 F.3d [1296] at 1300 [(10th Cir.
1997)]. Consequently, courts have routinely dismissed such
penitentiary-specific conditions-of-confinement claims as moot. See
Sossamon v. Texas, [563] U.S. [277], 131 S.Ct. 1651, 1669, 179
L.Ed.2d 700 (2011) (“A number of ... suits seeking injunctive relief
have been dismissed as moot because the plaintiff was transferred
from the institution where the alleged violation took place prior to
adjudication on the merits.”); accord Abdulhaseeb v. Calbone, 600
F.3d 1301, 1311 (10th Cir.), cert. denied, [562] U.S. [967], 131 S.Ct.
469, 178 L.Ed.2d 298 (2010); Green, 108 F.3d at 1300; Martin v.
Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985) (“[A] prisoner's claim
for injunctive relief is moot if he or she is no longer subject to those
conditions.”); see also Edwards v. Johnson, 209 F.3d 772, 776 (5th
Cir. 2000) (concluding that plaintiff's “claims for injunctive relief to
correct procedures and practices at [the Federal Detention Center in
Oakdale, Louisiana] facility [were] moot” because he had subsequently
been transferred out of that facility).
Jordan v. Sosa, 654 F.3d 1012, 1027–28 (10th Cir. 2011) (footnotes
omitted). Mr. Broyles is no longer incarcerated at Graham County Jail where
the defendant Presley serves as the jail administrator. Any prospective
injunctive relief ordered against Presley would have no effect on his actions
toward the plaintiff. Therefore, the claim for injunctive relief is dismissed.
IT IS THEREFORE ORDERED that the plaintiff’s claims under 42
U.S.C. § 1983 are dismissed pursuant to § 1915A(b)(1) for failure to state a
claim upon which relief may be granted.
Dated this 6th day of March, 2018, Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge
15