Waterman v. Cherokee County Jail et al

Filing 8

ORDER ENTERED: Plaintiff is ordered to show cause by May 31, 2018, why the court should not dismiss plaintiff's claims in Counts Four and Five of the complaint and why the court should not dismiss the Cherokee County Jail as a defendant. A Mar tinez report is ordered consistent with Section VII ofthis order. The report should be filed on or before July 2, 2018. Signed by U.S. District Senior Judge Sam A. Crow on 05/02/18. 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 the purpose of screening
plaintiff’s pro se complaint pursuant to 28 U.S.C. § 1915A.
I. Pro se standards
“A pro se litigant's pleadings are to be construed liberally
and held to a less stringent standard than formal pleadings drafted
by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
A pro se litigant, however, is not relieved from following the
same rules of procedure as any other litigant. See Green v.
Dorrell, 969 F.2d 915, 917 (10th Cir. 1992), cert. denied, 507
U.S. 940 (1993).

A district court should not “assume the role of

advocate for the pro se litigant.” Hall, supra. Nor is the court
to

“supply

additional

factual

allegations

to

round

out

a

plaintiff's complaint.” Whitney v. State of New Mexico, 113 F.3d
1170, 1173–74 (10th Cir. 1997).

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II. Screening standards
Title 28 United State Code Section 1915A requires the court
to

review

cases

filed

by

prisoners

seeking

redress

from

a

governmental entity or employee to determine whether the complaint
is frivolous, malicious or fails to state a claim upon which relief
may be granted. When deciding whether plaintiff’s complaint “fails
to state a claim upon which relief may be granted,” the court must
determine

whether

the

complaint

contains

“sufficient

factual

matter, accepted as true, to ‘state a claim for relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
The plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully.
Where a complaint pleads facts that are merely
consistent with a defendant’s liability, it stops short
of the line between possibility and plausibility of
entitlement to relief.
Id.

The

court

accepts

the

plaintiff’s

well-pled

factual

allegations as true and views them in the light most favorable to
the plaintiff.

United States v. Smith, 561 F.3d 1090, 1098 (10th

Cir. 2009).
III. Plaintiff’s allegations
This is a civil rights complaint under 42 U.S.C. § 1983.
Plaintiff alleges violations of his constitutional rights while he
has

been

a

pretrial

detainee

at
2

the

Cherokee

County

Jail.

Plaintiff names the Cherokee County Jail as a defendant as well as
the following persons:

David Groves, Sheriff of Cherokee County;

Michelle Tippie, jail administrator; Thomas Degroot, jail officer;
Amanda Phillips, jail officer; Kristin Wagner, nurse practitioner;
April Macafee, sergeant; and Judah Eliss, deputy.
Plaintiff lists six counts in the complaint.

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.
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.

He asserts that he weighed

157 pounds on March 29, 2018.
In Count Three, plaintiff alleges illegal retaliation against
his right to petition the government.

Plaintiff alleges that he

was taken off 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 on August 31, 2017 for stating that he
3

was going to file a grievance and write to a relevant government
oversight agency.
In Count Four, plaintiff contends that on or about June 28,
2017 he discovered that jail officers opened a manila envelope
that was addressed to his lawyer.

He claims that this action

violated his right to the assistance of counsel.
In Count Five, plaintiff asserts that his due process right
to humane conditions of confinement was violated.

Plaintiff

alleges that on April 2, 2017, a meat patty was overcooked and
hard. He claims that on several occasions food was inadequate and
inedible.

Plaintiff describes instances when a piece of cake was

stale and when a piece of cake was moldy.
a rotten salad on another date.

He claims he was served

He also claims that on June 26,

2017, there was blood and feces on the wall of his cell and he had
to wait several hours before he could clean the cell.

On October

9, 2017 he was placed in a cell with blood on the floor and it
took many hours to receive the cleaning supplies to clean it up.
He asserts that he was given a used razor on September 2, 2017 and
that the guards carry the used and new razors in the same bucket.
Finally, 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.”
He asserts that his “services were cut in half and that some days
4

he

was

only

allowed

10

to

15

minutes”

without

a

legitimate

government purpose.
IV. The Cherokee County Jail is not a suable entity.
Section

1983

constitutional

provides

violations

for
and

legal

claims

federal

to

be

statutory

made

for

violations

committed by “persons” acting under the authority of state law.1
This court has held that a county detention center, which does not
have the authority to sue or be sued, is not a “person” that may
be sued for violations of § 1983. See Gray v. Kufahl, 2016 WL
4613394 *4 (D.Kan. 9/6/2016)(Lyon County Detention Center is not
a suable entity); Baker v. Sedgwick County Jail, 2012 WL 5289677
*2 n.3 (D.Kan. 10/24/2012)(Sedgwick County Jail is not a suable
entity under § 1983); Chubb v. Sedgwick County Jail, 2009 WL 634711
*1 (D.Kan. 3/11/2009)(same); Howard v. Douglas County Jail, 2009
WL 1504733 *3 (D.Kan. 5/28/2009)(Douglas County Jail is not a
“person” subject to suit under § 1983).

Therefore, plaintiff’s

claims against the Cherokee County Jail should be dismissed.
V. Count Four
Plaintiff alleges that his right to assistance of counsel was
violated because jail personnel opened a manila envelope addressed

1

Section 1983 provides that: “Every person who, under color of any [State]
statute, ordinance, regulation, custom or usage . . . subjects, or causes to
be subjected, any citizen of the United States . . . to the deprivation of
any rights . . . secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other proper proceeding
for redress . . .”

5

to plaintiff’s attorney.
his legal mail.

Plaintiff does not identify who opened

He does not allege that his legal mail was read

by jail officers.

Plaintiff makes only a conclusory claim of

purposeful intrusion into attorney-client communications.

No

facts are stated which would suggest that the intrusion was
intentional as opposed to negligent.

Plaintiff also does not

allege how this event materially impinged upon his communications
with counsel or otherwise caused plaintiff harm.
The Tenth Circuit has stated that an accidental isolated
incident of opening and inspecting mail does not give rise to a
constitutional violation. Green v. Denning, 465 Fed.Appx. 804, 807
(10th Cir. 2012); Berger v. White, 12 Fed.Appx. 768, 771 (10th Cir.
2001); Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990); see
also,

Guajardo-Palma

v.

Martinson,

622

F.3d

801

(7th

Cir.

2010)(denying constitutional claim from opening of nine pieces of
legal mail where plaintiff did not claim resulting intimidation);
Florence

v.

Booker,

23

Fed.Appx.

970,

972

(10th

Cir.

2001)(rejecting access to courts claim based on a single incident
of opening legal mail without evidence of improper motive); Davis
v. Goord, 320 F.3d 346, 351 (2d Cir. 2003)(“an isolated incident
of

mail

tampering

is

usually

insufficient

to

establish

a

constitutional violation”); Morgan v. Montanye, 516 F.2d 1367,
1370-72

(2nd

outside

presence

Cir.

1975)(single
of

inmate

instance

does
6

not

of

legal

violate

mail

opened

Constitution);

Chambers v. Badsky, 2014 WL 4261345 *6 (D.Kan. 8/28/2014)(single
incident of legal mail tampering does not state a constitutional
violation);

Hall

v.

Chester,

2008

WL

4657279

*4

(D.Kan.

10/20/2008)(allegations of two incidents of improperly opened
legal mail without more fail to state a constitutional claim).
Upon the circumstances alleged by plaintiff and the abovecited legal authority, the court shall order plaintiff to show
cause why Count Four should not be dismissed.
VI. Count Five
Plaintiff claims that his conditions of confinement relating
to food and sanitation violated the Due Process Clause of the
Fourteenth Amendment.
as

a

pretrial

Under that provision of the Constitution,

detainee,

plaintiff

is

entitled

to

“’humane

conditions of confinement [with] . . . the basic necessities of
adequate food, clothing, shelter, and medical care and . . .
reasonable measures to guarantee [his] safety.’”

Ledbetter v.

City of Topeka, Kan., 318 F.3d 1183, 1188 (10th Cir. 2003)(quoting
Barney

v.

Pulsipher,

143

F.3d

1299,

1310

(10th

Cir.

1998)).

Plaintiff must allege facts showing that the alleged deprivation
was sufficiently serious to constitute an excessive risk to his
health and safety and that defendants knew of and disregarded the
risk.
cruel

Id.
and

This is the Eighth Amendment standard for claims of
unusual

requirement,

“’only

punishment.
those

Id.

deprivations
7

As

to

the

denying

seriousness
the

minimal

civilized measure of life’s necessities . . . are sufficiently
grave to form the basis of an Eighth Amendment violation.’”

Id.

(quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
“[T]he length of exposure to the conditions [of confinement]
is often of prime importance.”
974 (10th Cir. 2001).

DeSpain v. Uphoff, 264 F.3d 965,

The Tenth Circuit has held “that a situation

involving filthy cells, poor lighting, inadequate ventilation or
air cooling and unappetizing food ‘simply [did] not rise to the
level of a constitutional violation’ where prisoners were exposed
to the conditions for only forty-eight hours.” Id., quoting Barney
v. Pulsipher, 143 F.3d 1299, 1312 (10th Cir. 1998).

In Barney,

the Tenth Circuit cited several cases holding that filthy and
unsanitary conditions did not violate the Eighth Amendment because
they lasted only 24 hours or for only a few days.
Here, plaintiff has alleged that on two occasions he was
placed in cells with blood or feces or both on the walls or on the
floor.

He claims he was locked in these cells for several hours

before the cells could be cleaned.

He also alleges that he has

been served stale food on a regular basis and that on several
occasions some food was inedible. On one of those occasions, apple
sauce was substituted for an inedible salad. On another occasion
a different piece of cake was substituted for a moldy piece of
cake.

Plaintiff also alleges that on September 2, 2017, he was

given a dirty razor with which to shave.
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He asserts that after he

pointed this out, the jail officer apologized and threw the razor
away. Plaintiff does not allege that he sustained any harm to his
health or provide sufficient facts to evaluate any risk to his
health.
The only condition of confinement described in Count Five
which is alleged to have occurred regularly is the serving of stale
breakfast food.

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).

So,

providing stale food to inmates on a regular basis does not violate
the Constitution.

The other temporary or occasional conditions

described by plaintiff also fall short of stating a constitutional
violation based upon the authorities cited herein.2

See also,

Robinson v. Danberg, 673 Fed.Appx. 205, 212-13 (3rd Cir. 2016)(no
violation

stated

by

confinement

in

blood-stained

cell

which

prisoner was forced to clean without protective equipment or

2

Plaintiff also claims that he made a request for AIDS and hepatitis tests
which was denied. This allegation does not state a constitutional claim. See
Pace v. Myers, 2016 WL 6071797 *6 (S.D.Ill. 10/17/2016); Jordan v. Caffey, 2015
WL 2345849 *4 (D.Ariz. 5/15/2015); Freeman v. Troutt, 2012 WL 2565070 *11
(M.D.Tenn. 6/29/2012). As in these cases, plaintiff has failed to plausibly
allege a serious medical need as required for a constitutional violation. He
has also failed to allege that he suffered any specific harm from the refusal.
In addition, compensatory damages are unavailable without a showing of physical
injury. 42 U.S.C. § 1997e(e).

9

cleaning

materials);

Ledbetter,

318

F.3d

at

1188

(10th

Cir.

2003)(allegations of restraint for five hours “in a filthy cell
with no toilet in bare feet” are not enough for a constitutional
violation); McBride v. Deer, 240 F.3d 1287, 1291 (10th Cir. 2001)(a
filthy cell may be tolerable for a few days); Gonzalez v. Hasty,
269 F.Supp.3d 45, 64 (E.D.N.Y. 2017)(no Eighth Amendment violation
caused by issuance of dirty razors and inadequate cell cleaning
supplies);

Dowdy

v.

Troutt,

2011

WL

6754076

*3-4

(M.D.Tenn.

12/23/2011)(no Eighth Amendment claim stemming from issuance of
dull, unsanitary razor on one occasion).
Upon the circumstances alleged by plaintiff and the abovecited legal authority, the court shall order plaintiff to show
cause why Count Five should not be dismissed.
VII. Martinez report
The court cannot properly screen plaintiff’s claims in Counts
One,

Two,

Three

and

Six

without

additional

information

appropriate officials of the Cherokee County Jail.

from

Accordingly,

the Court shall order the appropriate officials of the Cherokee
County Jail and the Sheriff of Cherokee County to prepare and file
a Martinez report.

See Martinez v. Aaron, 570 F.2d 317 (10th Cir.

1978).
Officials

responsible

for

the

operation

of

the

Cherokee

County Jail are directed to undertake a review of the subject
matter of Counts One, Two, Three and Six of the complaint:
10

(a) to ascertain the facts and circumstances;
(b) to consider whether any action can and should be taken by
the institution to resolve the subject matter of the complaint;
(C)

to

determine

whether

other

like

complaints,

whether

pending in this court or elsewhere, are related to this complaint
and should be considered together.
Upon completion of the review, a written report shall be
compiled.

Statements of all witnesses shall be in affidavit form.

Copies of pertinent rules, regulations, official documents and,
wherever

appropriate,

the

reports

of

medical

or

psychiatric

examinations shall be included in the written report.
Authorization is granted to the appropriate officials of the
Cherokee

County

Jail

and

the

Sheriff

of

Cherokee

County

to

interview all witnesses having knowledge of the facts, including
the plaintiff.
No answer or motion addressed to the complaint shall be filed
until the Martinez report requested herein has been prepared.
Discovery shall not commence until plaintiff has received and
reviewed defendants’ answers or response to the complaint and the
report

required

herein.

This

action

is

exempted

from

the

requirements imposed under FED.R.CIV.P. 26(a) and 26(f).
VIII. Conclusion
For the above-stated reasons, the court directs as follows.
Plaintiff is ordered to show cause by May 31, 2018 why the court
11

should not dismiss plaintiff’s claims in Counts Four and Five of
the complaint and why the court should not dismiss the Cherokee
County Jail as a defendant.
A Martinez report is ordered consistent with Section VII of
this order.

The report should be filed on or before July 2, 2018.

The Clerk is further directed to transmit a copy of the
complaint and this order to the Sheriff of Cherokee County.
IT IS SO ORDERED.
Dated this 2nd day of May, 2018, at Topeka, Kansas.

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

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