Broyles v. Marks et al

Filing 4

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. Senior District Judge Sam A. Crow on 05/22/18. Mailed to pro se party John Elbert 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. 18-3030-SAC

BYRON MARKS, Sheriff of
Cloud County, Kansas, and
AMBER LINDBERG,
Administrator of Cloud County
Jail,
Defendants.
MEMORANDUM AND ORDER
The plaintiff John Elbert Broyles II, an inmate at Cloud County
Jail, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. He alleges
his Eighth Amendment rights were violated by what he calls cruel and
unusual punishment from having been served for the month before his
complaint either the same two Kosher meals alternated between lunch and
dinner on most days or the same Kosher meal for both lunch and dinner on
some days. He also alleges his Fourteenth Amendment rights to equal
protection were violated by receiving these same limited meal choices while
other inmates eating non-Kosher meals have been receiving a wide variety
of meals. The complaint names as the defendants, Sheriff Byron Marks and
Jail Administrator Amber Lindberg. He seeks as relief an order barring his
transfer to another jail facility, giving him “a variety of meal selections,” and

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awarding him monetary award of $100,000 for pain and suffering, as well
costs.
Mr. Broyles alleges speaking with Ms. Lindberg about having the
contracted food providers offer a variety of Kosher meal selections and then
receiving her assurance that more variety would be coming. He also alleges
having advised her, “that limiting . . . [his] diet to only two different meals
constitutes ‘Cruel and Unusual Punishment,’ since all other ‘non-Kosher’
inmates are being served a wide variety of meals.” ECF# 1, p. 5. He further
alleges that other inmates have complained about this same limited variety
of Kosher meals.
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
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(1988) (citations omitted). 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).
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). 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).

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Personal Participation
To allege a constitutional violation, 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 both defendants by their titles but fails
to allege personal involvement in the decision to offer plaintiff only limited
Kosher meal selections. The plaintiff alleges he told Ms. Lindberg that she
contracts for the meals and that she is liable for the lack of variety. The
plaintiff also alleges that Ms. Lindberg assured him on February 4, 2018,
that the food contractor had ordered him a variety of Kosher meals. The
plaintiff alleges in response that he has yet to receive this variety. The court

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notes that Mr. Broyles’ complaint was received and filed on February 9,
2018. ECF# 1, pp. 1, 4-5.
Most notably, there is nothing alleged in his complaint that either
defendant directly and intentionally limited the Kosher meal selections to
consciously and intentionally interfere with Mr. Boyles’ free exercise rights.
Absent such allegations, Mr. Broyles’ complaint fails to state a factual or
legal basis for a First Amendment or Fourteenth Amendment violation under
§ 1983. See Watkins v. Rogers, 525 Fed. Appx. 756, 759 (10th Cir. 2013).
Nor has Mr. Broyles alleged any individual actions taken by either defendant
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).
Eighth Amendment Claim
“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.
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Salazar, 516 F.3d 912, 916 (10th Cir. 2008). “A prison must provide
adequate food . . ., and the food must be nutritionally adequate.” Thompson
v. Gibson, 289 F.3d 1218, 1222 (10th Cir.) (internal quotation marks and
citation omitted), cert. denied, 537 U.S. 978 (2002). “A substantial
deprivation of food may be sufficiently serious to state a conditions of
confinement claim under the Eighth Amendment.” Id. Prison officials have
broad discretionary authority to manage and control prisons. Bailey v.
Shillinger, 828 F.2d 651, 653 (10th Cir. 1987).
The Supreme Court in Farmer spelled out that the Eighth
Amendment can be violated for inhumane condition when the alleged
deprivation is first, “objectively, sufficiently serious,” such that the “official's
act or omission must result in the denial of the minimal civilized measure of
life's necessities.” 511 U.S. at 834 (internal citations and quotation marks
omitted). “[T]o satisfy this prong of the Farmer test, a prisoner must show
that conditions were more than uncomfortable, and instead rose to the level
of ‘conditions posing a substantial risk of serious harm’ to inmate health or
safety.” DeSpain v. Uphoff, 264 F.3d 965, 973 (10th Cir. 2001) (quoting
Farmer, 511 U.S. at 834). To allege an Eighth Amendment violation, the
plaintiff must show as the second prong that the defendants acted with
deliberate indifference to inmate health or safety. Farmer, 511 U.S. at 834;
Miller v. Glanz, 948 F.2d 1562, 1566-67 (10th Cir. 1991). This standard
incorporates balancing “judicial respect for the exigencies of running a”
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detention facility against the Eighth Amendment concepts related to human
dignity and civilized decency. DeSpain, 264 F.3d at 973.
“Tasty or even appetizing food is not a basic necessity for
humane living.” Williams v. Berge, 102 Fed. Appx. 506, 507 (7th Cir. 2004);
see also Isby v. Brown, 856 F.3d 508, 522 (7th Cir. 2017)(rejecting Eighth
Amendment claim based in part upon poor quality food); LeMaire v. Maass,
12 F.3d 1444, 1456 (9th Cir. 1993)(food need not be tasty or aesthetically
pleasing); Waterman v. Cherokee County Jail, 18-3092-SAC, 2018 WL
2046911, at *4 (D. Kan. May 2, 2018)(“[P]roviding stale food to inmates on
a regular basis does not violate the Constitution”). The plaintiff’s allegation
of a limited selection of kosher lunches and dinners does not state a
substantial risk of harm to his health or safety for an Eighth Amendment
claim. Nor has he alleged that the defendants acted with deliberate
indifference to his health or safety. Summary dismissal of this claim is
appropriate.
First and Fourteenth Amendment
The Equal Protection Clause of the Fourteenth Amendment
dictates that, “No State shall ... deny to any person within its jurisdiction the
equal protection of the laws.” U.S. Const. amend. XIV. “This Clause
embodies a general rule that States must treat like cases alike but may treat
unlike cases accordingly.” Thompson v. Gibson, 289 F.3d 1218, 1222 (10th
Cir. 2002) (citation omitted). An equal protection claim is assessed as to
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“whether the challenged state action intentionally discriminates between
groups of persons.” SECSYS, LLC v. Vigil, 666 F.3d 678, 685 (10th Cir.
2012) (citation omitted). Such intent “implies more than intent as volition or
intent as awareness of consequences,” but “requires that the decisionmaker
. . . selected or reaffirmed a particular course of action at least in part
because, not merely in spite of the law’s differential treatment of a particular
class of persons.” Id. (internal quotation marks and citations omitted). “[F]or
a constitutional violation to take place, an intent to discriminate must be
present.” Id. Put another way, the plaintiff must allege purposeful
discrimination had a discriminatory effect upon him, that is, he was treated
differently than other similarly situated prisoners. See McCleskey v. Kemp,
481 U.S. 279, 292–93 (1987).
Equal protection of religion in prisons does not mean that every
religious group must receive identical treatment but only that each religious
group have “a reasonable opportunity to exercise its religious beliefs.” Neal
v. Lewis, 325 F.Supp.2d 1231, 1238 (D. Kan. 2004) (citing Cruz v. Beto, 405
U.S. 319, 322 n.2 (1972)), aff’d, 414 F.3d 1244 (10th Cir. 2005). The
plaintiff here is not alleging that he is denied a reasonable opportunity to
exercise his religious beliefs. Instead, he wants his religious diet to be as
diverse in choice as those who do not practice a religious diet. Alleging the
lack of variety of kosher meals does not support a free exercise claim. Slater
v. Teague, 2018 WL 1800919, at *5 (D. Colo. Mar. 21, 2018) (citing Strope
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v. Cummings, 381 Fed.Appx. at 880, 882 (10th Cir. Jun. 9, 2010) (allegation
that kosher meal offerings had less variety than regular meals along with
other allegations did not impose a substantial burden on defendant’s
opportunity to exercise his religious beliefs), report and recommendation
adopted, 2018 WL 1794883 (D. Colo. Apr. 12, 2018). “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). 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).
The plaintiff’s complaint alleges the defendant Ms. Lindberg
represented on February 4, 2018, that the food contractor had ordered the
plaintiff a variety of Kosher meals. Thus, the plaintiff’s allegations fail to
sustain an inference of purposeful discrimination from the jail administrator’s
initial response to the plaintiff’s requests and later reliance on the food
contractor’s promises to provide wider variety in the Kosher meals. At most,
these allegations show no more than negligence, not intentional
discrimination. Nor does the complaint allege facts suggesting the
defendants substantially burdened his sincerely held religious beliefs.

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The official capacity claim for damages against Sheriff Marks is
subject to dismissal under 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 in Self v. County of
Greenwood, 12-1317-JTM, 2013 WL 615652, at *2 (D. Kan. Feb. 19, 2013),
and dismisses the claim for monetary damages against the defendant Marks
in his official capacity is dismissed.
As for any official capacity claim against Ms. Lindberg, 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). The
plaintiff’s complaint fails to allege any municipal liability against the
defendant Lindberg. See Hachmeister v. Kline, 2013 WL 237815 at *4 (D.
Kan. Jan. 22, 2013).
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As for damage claims against the defendants Marks and Lindberg
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 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. 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.
Considering that the plaintiff’s factual allegations are plainly
insubstantial in character and detail, the court shall dismiss the plaintiff’s
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complaint as there appears to be no reasonable likelihood of the plaintiff
curing the pleading deficiencies to state a claim upon which relief can be
granted.
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 22nd day of May, 2018, Topeka, Kansas.

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

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