Waterman v. Cherokee County Jail et al

Filing 57

MEMORANDUM AND ORDER granting in part and denying in part 45 Motion to Dismiss for Failure to State a Claim. Sheriff Groves and Thomas DeGroot are dismissed from the case. See order for additional details. Signed by District Judge Carlos Murguia on 6/26/2019. (ydm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRIAN WATERMAN,
Plaintiff,
v.
CHEROKEE COUNTY JAIL, et al.,
Defendants.

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Case No. 18-3092-CM-KGG

MEMORANDUM AND ORDER
Plaintiff Brian Waterman, a prisoner in the Sedgwick County Jail, brings this civil rights action
pro se against a number of defendants associated with the Cherokee County Jail. Some defendants
have been dismissed from the case, but the following defendants remain: Sheriff David Groves,
Michelle Tippie, Thomas DeGroot, Amanda Phillips, and Judah Ellis. The case is before the court on
defendants’ motion to dismiss (Doc. 45).
Three claims from plaintiff’s original complaint remain:


Count I – Fourteenth Amendment Due Process claim, alleging that plaintiff was placed in
segregation on March 17, 2018 and held for fifteen days without a legitimate government
purpose;



Count III – First Amendment retaliation claim against defendant Tippie based on two events:
o August 24, 2017 cessation of special diet in retaliation for filing a grievance against
defendant Tippie for opening outgoing mail, and

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o August 31, 2017 placement in segregation for stating that he was going to file a
grievance and contact a government oversight agency about defendant Wagner (who
has been dismissed from the case); and


Count VI – First Amendment claim regarding plaintiff’s right to observe his religion beginning
on May 4, 2017.
Defendants have moved to dismiss all of plaintiff’s remaining claims. As grounds for

dismissal, defendants make the following arguments: (1) all official capacity claims are barred by the
Eleventh Amendment; (2) plaintiff fails to state a claim against Sheriff Groves in his individual
capacity; (3) plaintiff fails to state a claim against Thomas DeGroot in his individual capacity; (4)
plaintiff fails to state a claim in Count I because plaintiff was placed in segregation at his own request
for his own safety; (5) plaintiff fails to state a claim against defendant Tippie in Count III because he
fails to allege facts showing how defendant Tippie was involved in allegedly retaliatory decisions or
that defendant Tippie was aware of the threats made to defendant Wagner; (6) plaintiff fails to state a
claim in Count VI because he does not allege that he holds any sincerely held religious beliefs, what
those beliefs are, how attending certain religious services would be an expression of those beliefs, how
religious services have been unreasonably denied, and who actually denied plaintiff access to services;
and (7) in any event, defendants are entitled to qualified immunity for any of the actions complained of
by plaintiff. For the following reasons, the court grants defendants’ motion in part and denies it in
part.
I.

Standards of Review

Defendants move to dismiss claims both for lack of subject matter jurisdiction under Fed. R.
Civ. P. 12(b)(1) and for failure to state a claim under Rule 12(b)(6). Under the Eleventh Amendment,
“an unconsenting State is immune from suits brought in federal courts by her own citizens as well as
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by citizens of another State.” Edelman v. Jordan, 415 U.S. 651, 662–63 (1974). A party asserting
Eleventh Amendment Immunity may move to dismiss under Rule 12(b)(1) because “Eleventh
Amendment Immunity concerns the subject matter jurisdiction of the district court.” Ruiz v.
McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002).
The court will grant a 12(b)(6) motion to dismiss only when the factual allegations fail to “state
a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Although the factual allegations need not be detailed, the claims must set forth entitlement to relief
“through more than labels, conclusions and a formulaic recitation of the elements of a cause of action.”
In re Motor Fuel Temperature Sales Practices Litig., 534 F. Supp. 2d 1214, 1216 (D. Kan. 2008). The
allegations must contain facts sufficient to state a claim that is plausible, rather than merely
conceivable. Id. “All well-pleaded facts, as distinguished from conclusory allegations, must be taken
as true.” Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984); see also Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). The court construes any reasonable inferences from these facts in favor of the
plaintiff. Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006).
When, as here, a plaintiff is proceeding pro se, the court construes his pleadings liberally and
holds the pleadings to a less stringent standard than lawyer-drafted pleadings. Erickson v. Pardus, 551
U.S. 89, 94 (2007); McBride v. Deer, 240 F.3d 1287, 1290 (10th Cir. 2001). Liberal construction does
not, however, “relieve the plaintiff of the burden of alleging sufficient facts on which a recognized
legal claim could be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The court need
not accept as true those allegations that state only legal conclusions. See id. at 1110.
II.

Discussion
A. Eleventh Amendment Immunity

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Defendants first argue that the sheriff and his detention officers are entitled to Eleventh
Amendment immunity for the monetary claims against them in their official capacities. The court
agrees. Eleventh Amendment immunity bars any monetary relief from defendants in their official
capacities. Allen v. Zavaras, 474 F. App’x 741, 743-44 (10th Cir. 2012) (“[I]t is well established that
the Eleventh Amendment precludes suits in federal court seeking retroactive declaratory or monetary
relief from state officials acting in their official capacities.”). Both the Tenth Circuit and this court
have granted Kansas sheriffs immunity for monetary claims against them. See Hunter v. Young, 239 F.
App’x 336, 338 (10th Cir. 2007); Myers v. Brewer, No. 17-2682-CM, 2018 WL 3145401, at *6 (D.
Kan. June 27, 2018). Plaintiff has not offered a valid argument why this court should not also apply
Eleventh Amendment immunity to the sheriff and his officers here. See Hunter, 238 F. App’x at 338
(applying immunity to sheriff’s officer). The court therefore grants defendants’ motion as to the
claims against defendants in their official capacities.
A. Claims Against Sheriff Groves
Defendants next argue that plaintiff has failed to allege personal participation by Sheriff
Groves—making the claims against him in his individual capacity subject to dismissal. The court
agrees.
Plaintiff’s allegations against Sheriff Groves are as follows:


He is the sheriff.



He is listed among the defendants who placed plaintiff in segregation on March 17,
2018.



He told one of plaintiff’s former attorneys that he was going to move plaintiff out of the
jail in 2017 because he knew what the officers were doing.

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These allegations are insufficient to show that Sheriff Groves was personally involved with
placing plaintiff in segregation or any other alleged constitutional allegation. The allegations are
conclusory about Sheriff Groves’s involvement, and presumably seek to hold him responsible under a
theory of respondeat superior. This is impermissible in a § 1983 action such as plaintiff’s. Duffield v.
Jackson, 545 F.3d 1234, 1239 (10th Cir. 2008); Gagan v. Norton, 35 F.3d 1473, 1476 n.4 (10th Cir.
1994). Individual liability under § 1983 must be based on personal involvement. Gallagher v.
Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009). “[P]ersonal participation in the specific constitutional
violation complained of is essential.” Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011) (citation
omitted). And the law is clear that denial of a grievance is insufficient to constitute personal
participation in a constitutional violation. Gallagher, 587 F.3d at 1069; see also Stewart v. Beach, 701
F.3d 1322, 1328 (10th Cir. 2012). Moreover, plaintiff must allege more than that a defendant was a
supervisor or in charge at the jail. A defendant cannot be held liable for money damages in a civil
rights action based solely upon his or her supervisory capacity under the theory of respondeat superior.
Trujillo v. Williams, 465 F.3d 1210 (10th Cir. 2006); Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th
Cir. 1996); Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993). The defendant must be actually
involved in the constitutional violation.
Plaintiff has failed to show an affirmative link between Sheriff Groves and the alleged
constitutional violations. He only makes a single, conclusory allegation mentioning the sheriff, while
detailing the actions of others. The court therefore grants Sheriff Groves’s motion to dismiss.
B. Claims Against Thomas DeGroot
The only allegation remaining in plaintiff’s complaint about defendant DeGroot is an allegation
in Count I that defendant DeGroot “refused to see me.” (Doc. 1, at 5.) Plaintiff does not allege that

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defendant DeGroot participated in placing plaintiff in segregation or any other alleged unconstitutional
acts. This allegation is insufficient to state a claim, and defendant DeGroot is dismissed from this case.
C. Count I – Placement in Segregation
As noted above, Count I alleges that plaintiff’s due process rights were violated when he was
locked down or placed in segregation for fifteen days without a legitimate government purpose.
Plaintiff claims that he was denied a disciplinary hearing and that the timing of the disciplinary report
violated jail policies. He claims that defendant Phillips wrote the report and told him that he was being
locked down for “mean mugging and smiling at the inmates, these inmates had been threatening to kill
me, beat me to death.” (Doc. 1, at 3, 5.)
The Fourteenth Amendment prohibits a pretrial detainee from being punished without due
process 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)). The does not mean that a pretrial
detainee cannot be subjected to the conditions and restrictions of incarceration; but the conditions and
restrictions may not constitute punishment. Id. The critical question is whether the condition is
“imposed for the purpose of punishment or whether it is incident to some other legitimate government
purpose.” Id. (citation omitted). If a prison official acts with intent to punish, the act constitutes
unconstitutional pretrial punishment. But if a pretrial detainee is placed in segregation for managerial
reasons and not for punishment, then no process is required. Id. at 1106 (citation omitted).
When Judge Crow screened plaintiff’s complaint, he determined that there may be a factual
dispute as to why plaintiff was placed in segregation. This factual issue remains. The remaining
defendants in this claim—defendants Tippie and Phillips—have not shown that this claim should be
dismissed. They argue that plaintiff was placed in segregation at his own request and for his own
safety and that plaintiff has failed to allege facts indicating that his time in segregation was longer than
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it would have been but for some illegitimate purpose. But this argument is holding plaintiff to a higher
burden than he carries at this point in the litigation. Plaintiff alleges that he was kept in segregation
after his initial placement for punitive purposes, and that is sufficient to state a claim.
D. Count III Against Defendant Tippie – Retaliation
The remaining claim in Count III is that defendant Tippie illegally retaliated against plaintiff
for filing a grievance and threatening to file a grievance and write a government agency. Plaintiff
claims that defendant Tippie ceased his medical diet on August 24, 2017—the day after plaintiff filed a
grievance against defendant Tippie for opening outgoing legal mail. And plaintiff claims that
defendant Tippie placed plaintiff in segregation on August 31, 2017, because plaintiff said 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.
Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007). “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 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 F. App’x 1, 5 (10th Cir.
2012) (quoting Gee v. Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010)). But temporal proximity alone
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does not demonstrate the required causal nexus. See Leek v. Miller, 698 F. App’x 922, 926 (10th Cir.
2017); Strope v. Cummings, 381 F. App’x 878, 883 (10th Cir. 2010); Friedman v. Kennard, 248 F.
App’x 918, 922 (10th Cir. 2007).
Judge Crow dismissed this claim against defendant Wagner. Plaintiff appears to assume that he
dismissed it against defendant Tippie, as well, and does not offer argument why his allegations against
defendant Tippie are sufficient to state a claim. After reviewing plaintiff’s allegations, the court
determines that plaintiff has not connected the alleged retaliatory acts to his protected actions by
anything other than temporal proximity. Plaintiff does not allege how defendant Tippie would have
been involved in decisions about his medical diet (and instead makes detailed allegations about
defendant Wagner taking him off the diet in this and a companion case). And he does not allege that
defendant Tippie was even present when plaintiff threatened to file a grievance and write the medical
board of directors. The actions lack anything more than a temporal relationship, and the court
dismisses Count III against defendant Tippie.
E. Count VI – Denial of Access to Religious Services
The last remaining claim is Count Six against defendants Tippie and Ellis. In this claim,
plaintiff alleges that he was denied the right to observe his religion beginning on May 4, 2017, when
plaintiff was again placed in segregation at his own request. According to plaintiff, because prison
officials kept him out of the general population to separate him from “incompatibles,” plaintiff was
denied the right to attend religious services. Plaintiff claims that his “services were cut in half and that
some days he was only allowed 10 to 15 minutes” without a legitimate government purpose. He
alleges that on June 7, 2017, defendant Ellis said he didn’t want to hear from plaintiff when plaintiff
told him that plaintiff wanted to go to a Jehovah’s Witness service.

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“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.’” Wares v. Simmons, 392 F.3d 1141, 1143 (10th Cir. 2004) (quoting Hammons v.
Saffle, 348 F.3d 1250, 1254–55 (10th Cir. 2003)). The court evaluates the reasonableness of restraints
on religious practice using the following factors:
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.
Id. (citations omitted).
When Judge Crow screened plaintiff’s complaint, he concluded that plaintiff stated a plausible
First Amendment claim. He did not believe that he could properly consider the factors above on the
record before him.
Nothing has changed based on the content of defendants’ motion to dismiss. Defendants argue
that plaintiff has not alleged that he has a “sincerely held religious belief.” Even though plaintiff’s
complaint does not contain these specific words, his allegations are such that the court can infer that
his religious belief is sincerely held at this stage of the proceedings. And defendants argue that they
have not unreasonably denied services, but this argument relies on acceptance of their position that
plaintiff was kept in segregation at his own request and for his own safety—a premise that plaintiff
calls into question by alleging that two “incompatibles” (black inmates) were eventually placed in his
pod with him during the time he was also denied access to religious services. If plaintiff is believed,
then defendants’ stated reasons for not allowing plaintiff to attend religious services may not be
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credible. The court cannot resolve this issue based on the allegations in the complaint. Finally,
defendants argue that the complaint fails to identify with specificity who denied plaintiff access to
religious services. But the complaint specifically identified defendant Ellis as an actor, and the
complaint alleges that defendant Tippie repeatedly explained in grievances that plaintiff could not
attend religious services for security purposes. These allegations are sufficient to state a claim.
F. Qualified Immunity
Qualified immunity protects government officials from individual liability under § 1983 unless
their conduct “violates ‘clearly established statutory or constitutional rights of which a reasonable
person would have known.’” Schroeder v. Kochanowski, 311 F. Supp. 2d 1241, 1250 (D. Kan. 2004)
(citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); Wilson v. Layne, 526 U.S. 603, 609 (1999)
(noting that qualified immunity analysis is identical under 42 U.S.C. § 1983 and Bivens). When a
defendant raises qualified immunity, the plaintiff must show that (1) the defendant’s actions violated a
constitutional or statutory right and (2) the right violated was clearly established at the time of the
conduct in issue. Schroeder, 311 F. Supp. 2d at 1250. The court may consider either prong of the
qualified immunity test first. Panagoulakos v. Yazzie, 741 F.3d 1126, 1129 (10th Cir. 2013); see also
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
The court has determined that plaintiff has not stated a claim for constitutional violations for all
claims except Count I against defendants Tippie and Phillips and Count VI against defendants Tippie
and Ellis. For these two claims, the court determines that plaintiff has stated a constitutional violation.
And, if plaintiff’s allegations are accepted, the law is clearly established that defendants’ conduct
violated the constitution. With respect to Count I, the Fourteenth Amendment prohibits a pretrial
detainee from being punished without due process prior to a lawful conviction. See Peoples, 422 F.3d
at 1106. And with respect to Count VI, prison authorities may only restrict an inmate’s religious
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practices if they afford the inmate reasonable opportunities to exercise his sincerely held religious
beliefs. Wares, 392 F.3d at 1143. At this time, the court cannot determine whether defendants
afforded plaintiff reasonable opportunities. The court therefore denies qualified immunity without
prejudice to being re-raised in a motion for summary judgment.
IT IS THEREFORE ORDERED that defendants’ motion to dismiss (Doc. 45) is granted in
part and denied in part. Sheriff Groves and Thomas DeGroot are dismissed from the case, all official
capacity claims are dismissed, and Count III is dismissed. Count I against Michelle Tippie and
Amanda Phillips and Count VI against Michelle Tippie and Judah Ellis remain for adjudication.
Dated this 26th day of June, 2019, at Kansas City, Kansas.

s/ Carlos Murguia_________________
CARLOS MURGUIA
United States District Judge

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