Waterman v. Board of Commissioners of Columbus, Kansas et al

Filing 122

MEMORANDUM AND ORDER granting in part and denying in part defendants' 97 Motion to Dismiss; denying 119 Motion for Evidentiary Hearing. The Board of County Commissioners is dismissed from the case, as are the official capacity claims again st the sheriff and his detention officers. Count I is dismissed against defendant Smith and defendant Smith is dismissed as a defendant from the case. Count IV is dismissed against defendant DeGroot, but defendant DeGroot remains a defendant in Cou nt II. Count III is dismissed against defendants Tippie and Groves (to the extent that this claim was brought against them). Defendant Tippie remains a defendant in Count II, but defendant Groves is dismissed from the case. Defendant Phillips is dism issed from the case. Count II against defendants Tippie and DeGroot is dismissed except for as it relates to the incidents dated October 15, 2017, April 25, 2018, and May 3, 2018. Signed by District Judge Carlos Murguia on 6/26/2019. Mailed to pro se party Brian Waterman by regular mail. (heo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRIAN WATERMAN,

)
)
Plaintiff,
)
)
v.
)
)
BOARD OF COUNTY COMMISSIONERS )
OF CHEROKEE COUNTY, KANSAS, et al., )
)
Defendants.
)
)

Case No. 18-3135-CM-KGG

MEMORANDUM AND ORDER
Plaintiff Brian Waterman, a prisoner in the Sedgwick County Jail, brings this § 1983 civil
rights action pro se against a number of defendants associated with the Cherokee County Jail. The
case is before the court on defendants’ Motion to Dismiss Amended Complaint (Doc. 97), filed by
defendants Board of County Commissioners for Cherokee County Kansas, David Groves, Michelle
Tippie, Thomas DeGroot, Aryek Smith, and Amanda Phillips. Also pending is plaintiff’s Motion for
Evidentiary Hearing (Doc. 119).
The amended complaint contains five claims:


Count I – Excessive force claim against defendant Smith;



Count II – Denial of due process claim against defendants Tippie and DeGroot for denial of
disciplinary hearings;



Count III – Unconstitutional dietary policy against defendant Kristin Wagner, the nurse at
Cherokee County Jail, Danny Davis, who provides food service at the jail, and possibly against
defendants Groves and Tippie;



Count IV – Excessive force claim against defendant DeGroot; and
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

Count V – Medical neglect claim against nurse Wagner for failure to treat a staph infection.
Defendants have moved to dismiss all of plaintiff’s claims except Count V. They argue that
dismissal is warranted for the following reasons: (1) plaintiff’s complaint fails to state a claim
against the Board of County Commissioners; (2) the official capacity claims are barred by the
Eleventh Amendment; (3) the excessive force claims are barred by qualified immunity; and (4)
Counts II and III fail to state a claim because (a) plaintiff has not adequately alleged a due
process violation for Count II, (b) the dietary policy is constitutional in Count III, and (c)
plaintiff does not adequately allege a claim against defendant Phillips.
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
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
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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). But liberal construction
does not “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.

Factual Background

The following facts are taken from plaintiff’s complaint and are viewed in the light most
favorable to plaintiff. Defendants have offered video recordings of the two events allegedly involving
excessive force. But because plaintiff has challenged the authenticity of the videos submitted, the
court has not considered the content of the video recordings. See Jacobsen v. Deseret Book Co., 287
F.3d 936, 941 (10th Cir. 2002) (citing GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d
1381, 1384 (10th Cir. 1997)) (“In addition to the complaint, the district court may consider documents
referred to in the complaint if the documents are central to the plaintiff’s claim and the parties do not
dispute the documents’ authenticity.”). This also removes the need for any type of evidentiary hearing,
as requested by plaintiff in Doc. 119.
A. Facts Relating to Count I
On September 8, 2017, defendant Smith pushed plaintiff from the back with both hands to get
him into his cell. The two had engaged in an unfriendly exchange before defendant Smith took

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plaintiff to his cell. Before reaching the cell (and being pushed), plaintiff claims that he slowed down
to fix his shoe, but he does not allege that defendant Smith knew that was the reason he slowed down.
Plaintiff alleges that the push resulted in whiplash to his neck. Plaintiff does not allege that he
immediately complained of pain or requested medical attention. But he claims that he was placed on
medication for neck pain four days later.
B. Facts Relating to Count II
Plaintiff claims that defendants Tippie and DeGroot have denied him “countless disciplinary
hearings” and that the hearings he has been given have been inadequate. Plaintiff identified six
specific instances in which he was denied due process:


June 24, 2017: Plaintiff was written up eighteen times “due to his food being bad” and two
false reports were made. The officers allegedly involved are not parties to this action. Plaintiff
does not allege a punishment.



August 31, 2017 – September 5, 2017: Received no disciplinary hearings “for any writeups.”
He does not allege who wrote him up or denied him hearings. He also does not allege a
punishment.



September 2, 2017: A non-party officer fabricated an accusation that plaintiff threatened staff.
Plaintiff was not given a hearing. Plaintiff does not allege a punishment.



September 5, 2017: Defendant DeGroot took plaintiff to a first appearance room, presumably
for a disciplinary hearing. Plaintiff does not allege a punishment.



October 15, 2017: Defendant Phillips fabricated a report that “she had to come make sure [his]
cell door was secured” and defendant DeGroot denied plaintiff a hearing and gave plaintiff
fifteen days.

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

April 25, 2018: Plaintiff requested a disciplinary hearing. He was denied and was given an
extra eighteen days in segregation.



May 3, 2018: Plaintiff filed a grievance with Sheriff Groves and was given eighteen days with
no disciplinary hearing.
C. Facts Relating to Count III
The sheriff—not the Board of County Commissioners—enters into contracts for health care and

food services for the jail. Defendant Wagner is a contract medical provider for inmates. Plaintiff
alleges that defendant Wagner adopted a body mass index (“BMI”) policy that only requires prescribed
diets when an inmate’s BMI falls below 18.5. Plaintiff claims that, because of this policy, he lost
almost thirty pounds between February 2018 and October 2018. According to plaintiff, he weighed
171 pounds on February 8, 2018, and he weighed 142 pounds on or about October 4, 2018. But
plaintiff does not allege that his BMI has dropped below 18.5. The court takes judicial notice that a
BMI of 18.5 to 24.9 is considered normal.
Plaintiff claims that defendant Wagner refused to adjust his diet despite his weight loss and that
she tampered with the scales. He also alleges that the contract food service provider, Danny Davis,
does not always provide adequate daily calories. Plaintiff claims injury in the form of significant
weight loss, physical pains, and major discomfort.
D. Facts Relating to Count IV
Plaintiff alleges that on July 29, 2018, defendant DeGroot placed a handcuff on plaintiff too
tightly. Plaintiff told defendant DeGroot that the handcuff was tight and demanded that defendant
DeGroot show that he could put his finger in there. Plaintiff told defendant DeGroot that he was not
giving him his other hand, but also claims that he was not being combative. Defendant DeGroot then
yanked plaintiff out of the shower and dragged plaintiff to his cell. In the process, plaintiff slipped and
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fell on his knee on the concrete, but defendant DeGroot continued to drag him. Plaintiff claims that his
wrist was swollen and bruised with dark red marks from the cuff.
III.

Discussion
A. Claim Against the Board of County Commissioners

Plaintiff makes limited allegations against the Board of County Commissioners. He claims that
the Board did not supervise the sheriff and his deputies, and that the Board is liable as “the final policy
maker regarding the contracts with Manzer Health Clinic, and the food corporation.” (Doc. 53, at 10.)
But Kansas Boards of County Commissioners do not oversee the sheriff or his office’s operation.
Blume v. Meneley, 283 F. Supp. 2d 1171, 1174–75 (D. Kan. 2003). And here, the contracts for health
care and food service were entered with the sheriff—not the Board of County Commissioners.
Plaintiff has not stated a claim against the Board of County Commissioners (and has not addressed this
argument in his response brief). The court dismisses the Board from the case.
B. Eleventh Amendment Immunity
Defendants next 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. Again, plaintiff did not address this issue in his response brief.
Eleventh Amendment immunity bars any monetary relief from defendants in their official
capacities.1 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.
1

In plaintiff’s request for relief, he indicates that he is entitled to “injunctive, $150,000” and “declaratory $150,000,” along
with other monetary damages. Although plaintiff uses the labels injunctive and declaratory relief, he only refers to these
types of relief with a dollar amount, and does not specify any other action he wants the court to order. In light of the
context (as well as the fact that plaintiff is no longer housed in Cherokee County), the court considers his requests to be
additional demands for money damages despite the labels.

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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.
C. 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 first qualified immunity question is whether defendants used excessive force in violation of
plaintiff’s Fourteenth Amendment due process rights. The Fourteenth Amendment governs any claim
of excessive force brought by a pretrial detainee. Estate of Booker v. Gomez, 745 F.3d 405, 421 (10th
Cir. 2014). And under the Fourteenth Amendment, “the appropriate standard for a pretrial detainee’s
excessive force claim is solely an objective one.” Kingsley v. Henderson, 135 S. Ct. 2466, 2473
(2015). This standard requires the pretrial detainee to show that the force purposefully or knowingly
used against him was objectively unreasonable. Id. In applying this standard, courts view the facts
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and circumstances of the case “from the perspective of a reasonable officer on the scene,” considering
the following nonexhaustive factors:
the relationship between the need for the use of force and the amount of
force used; the extent of the plaintiff’s injury; any effort made by the
officer to temper or to limit the amount of force; the severity of the
security problem at issue; the threat reasonably perceived by the officer;
and whether the plaintiff was actively resisting.
Id. (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). The court also accounts for the “legitimate
interests that stem from [the government’s] need to manage the facility in which the individual is
detained,” appropriately deferring to “policies and practices that in th[e] judgment” of jail officials “are
needed to preserve internal order and discipline and to maintain institutional security.” Id. (quoting
Bell v. Wolfish, 441 U.S. 520, 540, 547) (internal quotation marks omitted). When the force involved
is the use of handcuffs, the plaintiff must show some “actual, non-de minimis physical, emotional, or
dignitary injury.” Scott v. City of Albuquerque, 711 F. App’x 871, 880 (10th Cir. 2017) (quoting
Fisher v. City of Las Cruces, 584 F.3d 888, 899) (10th Cir. 2009)) (internal quotation marks omitted).
1. Excessive Force – Aryek Smith (Count I)
Applying these standards, the court looks at plaintiff’s allegations of excessive force. The first
is in Count I, against defendant Smith. Defendant Smith pushed plaintiff with his bare hands into
plaintiff’s cell. Prior to that time, the two had engaged in an unfriendly exchange. Plaintiff claims that
he stopped to fix his shoe when defendant Smith pushed him, but plaintiff has not alleged that
defendant Smith knew he was trying to fix his shoe. The push allegedly resulted in temporary neck
pain (“whiplash”) that plaintiff saw the nurse for several days later. All of these facts are contained in
plaintiff’s amended complaint, without referencing the video.
Without referencing the video or other evidence, the court cannot evaluate the factors identified
in Kingsley to determine whether the force used was excessive under the circumstances. But even if
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the court were to accept that a single bare-handed push to a seemingly resisting inmate could be
excessive force, plaintiff has not offered case law that would meet the second prong of the qualified
immunity analysis—that the violated right was clearly established. On the other hand, defendant cited
two cases suggesting that in the situation outlined above, a bare-handed push would not violate the
constitution. See Routt v. Howard, No. 17-CV-0020-JED-JFJ, 2018 WL 2392541, at *7 (N.D. Okla.
May 25, 2018); see also Scott, 711 F. App’x 871. Plaintiff did not cite any case law that would show
that it was clearly established that defendant Smith’s conduct was unconstitutional, particularly when
plaintiff admits that he slowed down before reaching the cell. Plaintiff instead only cited general
caselaw about the use of excessive force. Plaintiff has not met his burden of showing that defendant
Smith is not entitled to qualified immunity.
2. Excessive Force – Thomas DeGroot (Count IV)
In Count IV, plaintiff accuses defendant DeGroot of using excessive force when applying
handcuffs to one hand and dragging plaintiff to his cell.
Plaintiff alleges that because of defendant DeGroot’s actions, he suffered bruising and swelling
of the wrist, as well as a scraped knee. He does not allege receiving any medical treatment. As noted
above, it is difficult to show that the use of handcuffs constitutes excessive force, particularly because
plaintiffs must show more than de minimis injury—something that plaintiff has not alleged here.
Plaintiff also has not offered case law clearly establishing that the use of handcuffs and pulling plaintiff
to his cell by one handcuff would violate the constitution when plaintiff refused to offer his other hand
for cuffing. Defendant DeGroot is entitled to qualified immunity on this claim.
D. Failure to State a Claim – Counts II and III
Counts Two and Three challenge defendants’ failure to give plaintiff disciplinary hearings and
development of a dietary policy.
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3. Due Process Violations (Count II)
For most of the specific instances plaintiff identifies in this claim, plaintiff has failed to show
that he actually received a punishment. Also for several of them, he failed to allege who took the
disciplinary actions. There are only three instances allegedly involving some type of punishment:


October 15, 2017: Plaintiff alleges that he received fifteen days.



April 25, 2018: Plaintiff alleges that he was denied a disciplinary hearing and received
eighteen days in segregation.



May 3, 2018: Plaintiff alleges that after filing a grievance with Sheriff Groves, he had
to spend another 18 days in segregation without a hearing.

Defendants argue that with all three of these instances, plaintiff does not allege facts that make
it plausible that the segregation was for punishment and not at his own request, for his own safety.
Defendants claim that the segregation days may have been for managerial reasons rather than punitive
reasons.
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).

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Based on the allegations in plaintiff’s complaint, the court cannot determine why plaintiff was
placed or kept in segregation on these three occasions. If placement was for punishment without a
hearing, such action may have violated plaintiff’s due process rights. The court denies defendants’
motion to dismiss relating to plaintiff’s placement in segregation on the three instances identified
above.
4. Dietary Policy (Count III)
Plaintiff’s claim in Count III is that defendant Wagner instituted a BMI policy that has resulted
in the unconstitutional deprivation of medical care in the form of a prescribed diet. Again, plaintiff’s
pretrial detainee status requires that this claim be analyzed under the Fourteenth Amendment. But this
standard is the same as that applied under the Eighth Amendment, which requires a showing of
deliberate indifference to an inmate’s serious medical needs. Walton v. Gomez, 745 F.3d 405, 429
(10th Cir. 2014). The medical condition must be sufficiently serious and the official must have
recognized a substantial risk of substantial harm and acted or failed to act despite that knowledge.
These allegations appear to be mostly—if not entirely—against defendants Wagner and Davis.
Defendants Wagner and Davis are not moving parties for this motion. To the extent that plaintiff is
attempting to state a claim against defendants Tippie or Groves, those two defendants move for
dismissal. Plaintiff has not pleaded any facts that would suggest that defendants Tippie or Groves
were aware that he had a serious medical need for additional calories. And medical providers advised
jail staff that plaintiff’s health care needs were being met. Plaintiff has not cited any law that would
require jail staff to discount the opinion of medical providers in this instance. The court determines
that defendants Tippie and Groves are entitled to qualified immunity on this claim.
5. Claims Against Defendant Phillips

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Plaintiff alleges that defendant Phillips is a jail supervisor and that she wrote reports concerning
disciplinary matters. But plaintiff does not allege that defendant Phillips actually denied him hearings
on disciplinary matters or punished him. Plaintiff has not stated a claim against defendant Phillips, and
she is dismissed from the case.
IT IS THEREFORE ORDERED that defendants’ Motion to Dismiss (Doc. 97) is granted in
part and denied in part. Specifically, the court orders the following:


The Board of County Commissioners is dismissed from the case, as are the official capacity
claims against the sheriff and his detention officers.



Count I is dismissed against defendant Smith and defendant Smith is dismissed as a defendant
from the case.



Count IV is dismissed against defendant DeGroot, but defendant DeGroot remains a defendant
in Count II.



Count III is dismissed against defendants Tippie and Groves (to the extent that this claim was
brought against them). Defendant Tippie remains a defendant in Count II, but defendant
Groves is dismissed from the case.



Defendant Phillips is dismissed from the case.



Count II against defendants Tippie and DeGroot is dismissed except for as it relates to the
incidents dated October 15, 2017, April 25, 2018, and May 3, 2018.
IT IS FURTHER ORDERED that plaintiff’s Motion for Evidentiary Hearing (Doc. 119) is

denied.
Dated this 26th day of June, 2019, at Kansas City, Kansas.

s/ Carlos Murguia___________________
CARLOS MURGUIA
United States District Judge
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