Wieland (0112771) v. Rucker et al

Filing 12

NOTICE AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted until April 19, 2018, to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why plaintiff's claims should not be dismissed. Signed by U.S. Senior District Judge Sam A. Crow on 03/19/18. Mailed to pro se party Ronald B. Weiland by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

RONALD B. WIELAND,
Plaintiff,
v.

CASE NO. 17-CV-3199-SAC

(FNU) RUCKER, et al.,
Defendants.

NOTICE AND ORDER TO SHOW CAUSE
This pro se civil rights action was filed pursuant to 42 U.S.C. § 1983 by a prisoner currently
confined at the Ellsworth Correctional Facility in Ellsworth, Kansas. Plaintiff proceeds in forma
pauperis and alleges that constitutional violations occurred during his pre-trial confinement at the
Shawnee County Department of Corrections (“SCDC”) in Topeka, Kansas. He brings suit against
SCDC and various employees. As relief, he requests $180,000.00 and mental health or medical
treatment for conditions that “may arise” because of the alleged conditions.
I. Procedural Background
Plaintiff initially filed this action in the United States District Court for the District of
Maryland. (Doc. 1). After conducting an initial review, that court determined that Kansas was the
appropriate venue for this action and, under 28 U.S.C. §1406(a), transferred the case to this district
for all further proceedings. (Docs. 3 and 4).
On December 22, 2017, this court directed plaintiff to submit a certified financial statement
to support his application to proceed in forma pauperis. (Doc. 5). The court also directed plaintiff
to submit an amended complaint on the proper forms which presents a clear statement of plaintiff’s
claims and the relief he seeks. Id. On March 2, 2018, plaintiff provided the required certified
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financial statement and filed an amended complaint. (Docs. 9 and 10). Based upon the financial
statement, the court granted plaintiff’s motion for leave to proceed without prepayment of fees and
assessed no initial partial filing fee because plaintiff has insufficient funds with which to do so.
(Doc. 11). Plaintiff remains obligated to make monthly payments under 28 U.S.C. § 1915(b)(2)
until he pays the full amount of the $350.00 filing fee.
II. Allegations in the Amended Complaint
Notwithstanding the court’s order that plaintiff set out his claims using the form complaint
without referring to an attached narrative statement, the amended complaint submitted by plaintiff
does exactly that. The court has carefully reviewed plaintiff’s statement and concludes that
plaintiff brings following claims.
Plaintiff alleges that during his 20-month confinement, cells and living areas of the SCDC
segregation unit were contaminated with mold, feces, blood stains, and pepper spray residue, and
that inmates in segregation were not allowed to have cleaning materials. He conclusorily alleges
that inmates may spend months in the same cell without access to cleaning materials. Plaintiff
further alleges that on September 12, 2017, the inmate in a neighboring cell urinated on the floor,
under the door, and onto the walkway; smeared feces on the door and walls; and purposely caused
his toilet to overflow, which flooded plaintiff’s cell with contaminated toilet water. Plaintiff was
moved the next day to another cell, which he alleges had feces smeared on the wall, door, and
window.
Plaintiff further alleges that the SCDC regularly remained in “lockdown” status for 48-96
consecutive hours, which he contends violated his constitutional rights as a pre-trial detainee
because during lockdown periods he had no access to common areas, the outdoor courtyard,
exercise areas, showers, or cleaning materials.

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Finally, plaintiff alleges that SCDC officials improperly punished him and other
segregation inmates who committed rules violations by housing them for multiple days in the
suicide prevention and close observation cells, which lacked chairs, tables, beds, toilets, and sinks,
and provided no access to exercise areas, the dayroom, or common areas.
Plaintiff contends that these violations have caused him to develop severe separation
anxiety disorder, manic depression, paranoid thoughts, anxiety, and depression.
III.

Screening Under 28 U.S.C. § 1915A
The Court is required to screen complaints brought by prisoners seeking relief against a

governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are
legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that
seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)–
(2).
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988)
(citations omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). A court
liberally construes a pro se complaint and applies “less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). In addition, the court accepts
all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th
Cir. 2006). On the other hand, “when the allegations in a complaint, however true, could not raise
a claim of entitlement to relief,” dismissal is appropriate. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 558 (2007).

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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 complaint: if they are so general that they encompass a wide swath of conduct, much of it

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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).
IV.

Analysis
A. Exhaustion of Administrative Remedies
Having considered plaintiff’s allegations, the court finds that plaintiff’s complaint about

the suicide prevention and close observation cells is subject to dismissal because it appears from
the complaint, narrative attachment, and attached grievances that he has not exhausted
administrative remedies. Under 42 U.S.C. § 1997e(a), “a prisoner must exhaust his administrative
remedies prior to filing a lawsuit regarding prison conditions in federal court.” Id. This exhaustion
requirement “is mandatory, and the district court [is] not authorized to dispense with it.” Beaudry
v. Corrections Corp. of Am., 331 F.3d 1164, 1167 n. 5 (10th Cir. 2003), cert. denied, 540 U.S.
1118 (2004); Little v. Jones, 607 F.3d 1245, 1249 (10th Cir. 2010). The court may dismiss sua
sponte a prisoner complaint when it is clear on the face of the complaint that the prisoner has not
exhausted administrative remedies. See Aquilar–Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th
Cir. 2007). Plaintiff provides no information about efforts (or lack thereof) regarding exhaustion
on this claim and it is therefore subject to dismissal.
B. Failure to State a Claim
The court finds that plaintiff’s remaining complaints about facility cleanliness and the
deprivations purportedly caused by the length of lockdowns are subject to dismissal because they
state no constitutional violations. “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

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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).1
First, plaintiff makes numerous allegations about the experiences of the general inmate
population at SCDC. He lacks standing to do so, however. “General observations” about prison
conditions are not actionable under 42 U.S.C. § 1983. Swoboda v. Dubach, 992 F.2d 286, 289-90
(10th Cir. 1993). To have standing, a prisoner must state “specific facts connecting the allegedly
unconstitutional conditions with his own experiences [in the prison], or indicat[e] how the
conditions caused him injury.” Id. at 289. The court lacks the ability to decide general grievances
concerning prison management, and can consider claims only to the extent an inmate alleges a
violation of his own constitutional rights. Sperry v. Wildermuth, 2017 WL 2555967, *5 (D. Kan.
June 13, 2017) (collecting cases). Accordingly, plaintiff lacks standing to bring his generalized
claims regarding the cleanliness of living areas and the lack of access to cleaning materials of the
segregation unit.
And, plaintiff’s particularized complaints about the cleanliness of the cells where he
resided do not rise to the level to state a constitutional claim of deliberate indifference under the

Because plaintiff is a pretrial detainee, his claims are governed by the Due Process Clause. See
Olsen v. Layton Hills Mall, 312 F.3d 1304, 1315 (10th Cir.2002). However, while plaintiff's rights
are secured by the Fourteenth Amendment, the courts apply the identical analysis used in cases
arising under the Eighth Amendment for evaluating claims of unconstitutional conditions of
confinement. See Craig v. Eberly, 164 F.3d 490, 495 (10th Cir.1998) (“Although the Due Process
Clause [of the Fourteenth Amendment] governs a pretrial detainee's claim of unconstitutional
conditions of confinement, the Eighth Amendment standard provides the benchmark for such
claims.” 164 F.3d 490, 495 (10th Cir.1998) (internal citations omitted)). The court therefore
analyzes plaintiff’s claims under the Eighth Amendment standard.
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Eighth Amendment. To do so, plaintiff must show both an objective component – that he was
incarcerated under conditions posing a substantial risk of harm, and a subjective component – that
prison officials were deliberately indifferent to his safety. Verdecia v. Adams, 327 F.3d 1171,
1175 (10th Cir. 2003) (citing Benefield v. McDowall, 241 F.3d 1267, 1271 (10th Cir. 2001). Inmate
exposure to sewage – such as that which plaintiff experienced when the toilet overflowed and
flooded – can constitute a serious risk of harm sufficient to satisfy the objective component.
Shannon v. Graves, 257 F.3d 1164, 1168 (10th Cir., 2001). Such a claim rises to the level of a
constitutional violation only if a plaintiff can show that prison officials acted with deliberate
indifference to the exposure. Plaintiff was provided with towels to soak up the water and was later
moved to another cell when “Officer Reamer was made aware” that plaintiff had spent the night
in a “biohazard risked room”. Plaintiff has not demonstrated a “wanton and obdurate disregard for
inmate health and safety” and therefore has not stated a constitutional violation. Id. at 1169. His
complaints about moving to a cell which had feces smeared on the wall, door, and window is
similarly problematic. In such cases, whether a violation occurs depends both on the “level of filth”
and the length of time the prisoner must endure it. McBride v. Deer, 240 F.3d 1287, 1291 (10th
Cir. 2001). Here, plaintiff’s general allegations provide insufficient detail regarding the “level of
filth” nor the period of time he personally experienced it. The court therefore finds his allegation
insufficient to state a constitutional violation.
Finally, plaintiff’s conclusory allegations about lockdowns and the resulting limitations on
his access to common areas, the outdoor courtyard, exercise areas, showers, or cleaning materials
are insufficient to state a constitutional violation. “[P]enological considerations may, in certain
circumstances, justify restrictions” on out-of-cell exercise. Mitchell v. Rice, 954 F.2d 187, 192
(10th Cir. 1992). Similarly, the denial of a shower for several days is not sufficient to state an

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Eighth Amendment claim for relief, Uman v. Hoffer, 2011 WL 4496596, *2 (D. Kan. Sept. 27,
2011), and a bare allegation that plaintiff was not provided with cleaning supplies during the
lockdown periods also fails to state a claim for relief. Id. Finally, while the lack of outside exercise
for extended periods can amount to an Eighth Amendment claim, Mitchell, 954 F.2d at 191,
plaintiff makes no such allegation. Rather, he complains that during lockdowns, which occur with
more frequency than he would like and which last longer than he believes necessary, his
constitutional rights are violated. This is insufficient to state an Eighth Amendment claim.
IT IS THEREFORE ORDERED BY THE COURT that plaintiff is granted until April
19, 2018, to show good cause, in writing, to the Honorable Sam A. Crow, United States District
Judge, why plaintiff’s claims should not be dismissed for the reasons stated herein.
IT IS SO ORDERED.
Dated this 19th day of March, 2018, at Topeka, Kansas.
s/Sam A. Crow
U. S. Senior District Judge

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