Waterman v. Cherokee County Jail et al

Filing 31

ORDER ENTERED: The court dismisses Count Two and defendants Wagner, Macafee, Manzer and the Manzer Health Clinic. Defendant Judah Eliss's name shall be corrected to read "Judah Ellis." The Clerk is directed to file Doc. No. 30 as a motion in Case No. 18-3135. Doc. No. 30 is dismissed without prejudice as a motion in this case. The Clerk of the Court shall prepare waiver of service forms for the remaining defendants, pursuant to Rule 4(d) of the Federal Rules of Civil Proce dure, to be served at no cost to plaintiff absent a finding by the Court that plaintiff is able to pay such costs. Signed by U.S. District Senior Judge Sam A. Crow on 09/11/18. Mailed to pro se party Brian Michael Waterman by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRIAN MICHAEL WATERMAN,
Plaintiff,
vs.

Case No. 18-3092-SAC

CHEROKEE COUNTY JAIL, et al.,
Defendants.

O R D E R
This case is before the court for additional screening,
pursuant to 28 U.S.C. § 1915A, in light of a Martinez report (Doc.
No. 27) which has recently been filed and plaintiff’s response to
the report (Doc. No. 28).
The court is mindful that:
“A Martinez report is treated like an affidavit,” Hall
v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991), and
“Martinez reports have been used in this circuit almost
exclusively
to
provide
the
court
preliminary
information,
furnished
by
prison
administration
personnel, in pro se cases brought by prisoners against
prison officials,” Ketchum v. Cruz, 961 F.2d 916, 920 n.
3 (10th Cir. 1992). Thus, a Martinez report ordinarily
is not a motion, much less a motion for summary judgment.
Dickey v. Merrick, 90 Fed.Appx. 535, 537 (10th Cir. 2003).
Tenth Circuit has further commented:
Generally, “the sufficiency of a complaint must rest on
its contents alone.” Gee v. Pacheco, 627 F.3d 1178, 1186
(10th Cir. 2010). While there are limited exceptions,
Martinez reports don't fall within those exceptions
“unless ‘the plaintiff challenges a prison's policies or
established procedures and the Martinez report's
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The

description of the policies or procedures remains
undisputed after plaintiff has an opportunity to
respond.’” Id. (quoting Hall, 935 F.2d at 1112).
Winkel v. Hammond, 704 Fed.Appx. 735, 737 (10th Cir. 2017).

Thus,

in general, the court may not look to the Martinez report to
resolve a factual dispute.

Id., citing Swoboda v. Dubach, 992

F.2d 286, 290 (10th Cir. 1993).
I. Screening
The court employs the screening standards and pro se pleading
guidelines that the court summarized in the first screening order.
Doc. No. 8, pp. 1-2.
A.

Count One

In Count One, plaintiff alleges the denial of his due process
rights when on March 17, 2018 he was locked down or placed in
segregation for 15 days without a legitimate government purpose.
Plaintiff claims that he was denied a disciplinary hearing and
that the disciplinary report was not timely written in violation
of jail policies.
The Fourteenth Amendment’s Due Process Clause prohibits a
pretrial detainee from being punished prior to a lawful conviction.
Peoples v. CCA Detention Centers, 422 F.3d 1090, 1106 (10th Cir.
2005)(citing Bell v. Wolfish, 441 U.S. 520, 535 (1970)). A pretrial
detainee,

however,

may

be

subjected

2

to

the

conditions

and

restrictions of incarceration so long as those conditions and
restrictions do not amount to punishment.1 Id.
The determination of whether a condition of pretrial
detention amounts to punishment turns on whether the
condition is imposed for the purpose of punishment or
whether it is incident to some other legitimate
government purpose. If an act by a prison official, such
as placing the detainee in segregation, is done with
intent to punish, the act constitutes unconstitutional
pretrial punishment. . . [N]o process is required if a
pretrial detainee is placed in segregation not as
punishment but for managerial reasons.
Id. at 1106 (internal quotes and citations omitted).
Upon review, there may be a factual dispute at this point as
to the reason plaintiff was placed in segregation.

The court

believes this claim should proceed beyond the screening stage.
B. Count Two
In Count Two, plaintiff asserts that his due process rights
against punishment as a pretrial detainee were violated because he
was denied a diet required for medical reasons to prevent plaintiff
from losing weight.

Plaintiff asserts that he weighed 177 pounds

on February 1, 2018 when he was returned to the Cherokee County
Jail from the Crawford County Jail.
pounds on March 29, 2018.

He claims that he weighed 157

He has made other allegations in

pleadings in this case that his weight has dropped to 144 pounds
or less.

E.g., Doc. Nos. 26 & 30.

1

Contrary to the suggestion in the Martinez report, Doc. No. 27, p. 3, the
“atypical and significant hardship” test in Sandin v. Conner, 515 U.S. 472
(1995) does not apply to pretrial detainees. Peoples, 422 F.3d at 1106 n.12.

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The Martinez report indicates that the jail staff follows the
recommendations of its contract health care provider, defendant
Kristen Wagner, who has at times ordered increased caloric intake
for plaintiff and who in 2018 has followed a protocol which ties
the allowance of a special diet to an inmate’s body mass index
(BMI).
Plaintiff’s claim in Count Two appears to be the same claim,
with fewer defendants, as plaintiff’s claim in Count Three of Case
No. 18-3135.

“District courts have discretion to control their

dockets by dismissing duplicative cases.” Katz v. Gerardi, 655
F.3d 1212, 1217 (10th Cir. 2011).

“[P]laintiffs have no right to

maintain two actions on the same subject in the same court.”
Kanciper v. Suffolk Cty. Soc’y for the Prevention of Cruelty to
Animals, Inc., 722 F.3d 88, 93 (2d Cir. 2013)(quoting Curtis v.
Citibank, N.A., 226 F.3d 133, 138-39 (2d Cir. 2000)).
has dismissed a duplicative action in the past.

This court
Edmisten v.

Kansas, 2008 WL 4540460 *3 (D.Kan. 10/9/2008). That course appears
appropriate here.

Therefore, the court shall dismiss Count Two as

duplicative of Count Three in Case No. 18-3135. Because defendants
Manzer and the Manzer Health Clinic relate only to Count Two, they
are also dismissed from this case.
C. Count Three
In Count Three, plaintiff alleges illegal retaliation against
his right to petition the government.
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Plaintiff alleges that

defendant Wagner and defendant Tippie ceased his medical diet on
August 24, 2017, the day after he filed a grievance against
defendant Tippie for opening outgoing legal mail.

Plaintiff

further alleges that he was placed on disciplinary segregation by
defendant Wagner and defendant Tippie on August 31, 2017 for
stating that he was going to file a grievance and write to a
relevant government oversight agency regarding defendant Wagner.
“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.”
510 F.3d 1196, 1203 (10th Cir. 2007).

Shero v. City of Grove,
“A plaintiff’s subjective

beliefs about why the government took action, without facts to
back up those beliefs, are not sufficient” to establish retaliatory
motive.

Nielander v. Bd. of Cty. Comm’rs, 582 F.3d 1155, 1165

(10th Cir. 2009).
A plaintiff may be able to establish that a defendant's
actions were substantially motivated by protected activity where
the allegations show (1) the defendant was aware of his protected
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activity, (2) the protected activity complained of the defendant’s
actions, and (3) “the alleged retaliatory act ‘was in close
temporal proximity to the protected activity.’”

Allen v. Avance,

491 Fed.Appx. 1, 5 (10th Cir. 2012)(quoting Gee v. Pacheco, 627
F.3d 1178, 1189 (10th Cir. 2010)). Temporal proximity between
protected activity and a challenged prison action, however, does
not in itself demonstrate the causal nexus for a retaliation claim.
See Leek v. Miller, 698 Fed.Appx. 922, 926 (10th Cir. 2017); Dawson
v. Audet, 636 Fed.Appx. 753, 758 (10th Cir. 2016); Strope v.
Cummings, 381 Fed.Appx. 878, 883 (10th Cir. 2010); Friedman v.
Kennard, 248 Fed.Appx. 918, 922 (10th Cir. 2007).
Upon further review of plaintiff’s complaint and the Martinez
report, the court finds that plaintiff has not alleged facts
plausibly showing that defendant Wagner was aware of his alleged
protected activity of August 23, 2017 or that she placed plaintiff
on segregation.

Because the court has already determined that

Count Two should be dismissed as duplicative and defendant Wagner
should be dismissed from Count Three, the court shall direct that
defendant Wagner be dismissed from this case.
D. Count Six
In Count Six, plaintiff asserts that he was denied his right
to observe his religion.

Plaintiff claims that he was not allowed

in general population, including for church services, in order to
separate plaintiff from designated “incompatibles.”
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He asserts

that his “services were cut in half and that some days he was only
allowed 10 to 15 minutes” without a legitimate government purpose.
As to defendant Judah Ellis,2 plaintiff alleges that on June 7,
2017

Ellis

said

he

didn’t

want

to

hear

from

plaintiff

when

plaintiff told him plaintiff wanted to go to a Jehovah’s Witness
service.
The Tenth Circuit has set forth the following guidance for
religious practice claims:
The First Amendment does not preclude prisons from
restricting inmates' religious practices, so long as
“prison
authorities
afford
prisoners
reasonable
opportunities to exercise their sincerely held religious
beliefs.” Four factors must guide a court's assessment
of the reasonableness of constraints on religious
practice:
First, the court considers whether there is a
logical
connection
between
the
prison
regulation and the asserted penological
interest. Second, the court considers whether
alternative means of exercising the religious
right in question remain open to inmates.
Third, the court assesses the impact the
accommodation of the right in question would
have on guards, other inmates, and on the
allocation of prison resources. Fourth, the
court
considers
whether
any
policy
alternatives exist that would accommodate the
right in question at de minimis cost to the
prison.
Wares v. Simmons, 392 F.3d 1141, 1143 (10th Cir. 2004)(quoting
Hammons v. Saffle, 348 F.3d 1250, 1254-5 (10th Cir. 2003)).

2

From the Martinez report in Case No. 18-3135 at Doc. No. 39-3, it appears that
a defendant identified in the complaint as “Judah Eliss” should be spelled
“Judah Ellis.”

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Upon review of the Martinez report and further review of
plaintiff’s complaint, the court concludes that plaintiff has
stated a plausible First Amendment claim.
Martinez

report

indicate

that

The complaint and the

penological

interests

were

considered in limiting plaintiff’s access to religious services
and that alternatives were provided.
properly

consider

the

factors

relevant

But, the court cannot
to

plaintiff’s

First

Amendment claim on the record before it.
E. Defendant Macafee
Plaintiff has not alleged facts in this case showing that
defendant

Macafee

personally

participated

in

conduct

allegedly violated plaintiff’s constitutional rights.

which

For this

reason, the court shall direct that defendant Macafee be dismissed
from this case.
II.

Motion for preliminary injunction
The motion for preliminary injunction recently filed at Doc.

No. 30 relates to plaintiff’s medical diet claim in Count Two.
Because the court is dismissing Count Two as duplicative of Count
Three in Case No. 18-3135, the court directs the Clerk of the Court
to file a copy of the motion and docket it as a motion in Case No.
18-3135.
III. Conclusion
The

court

has

endeavored

again

to

screen

plaintiff’s

complaint and, in doing so, has considered the Martinez report and
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plaintiff’s response to the report.

As explained above, the court

shall dismiss Count Two and the court shall dismiss defendants
Wagner, Macafee, Manzer and the Manzer Health Clinic.

Defendant

Judah Eliss’s name shall be corrected to read “Judah Ellis.”

The

Clerk is directed to file Doc. No. 30 as a motion in Case No. 183135.

Doc. No. 30 is dismissed without prejudice as a motion in

this case.

The Clerk of the Court shall prepare waiver of service

forms for the remaining defendants, pursuant to Rule 4(d) of the
Federal Rules of Civil Procedure, to be served at no cost to
plaintiff absent a finding by the Court that plaintiff is able to
pay such costs.
IT IS SO ORDERED.
Dated this 11th day of September, 2018, at Topeka, Kansas.

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

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