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

Filing 13

ORDER ENTERED: Plaintiff's motion to amend (Doc. Nos. 10 and 11 ) are denied without prejudice. Plaintiff is ordered to show cause by July 19, 2018, why the court should not dismiss plaintiff's claims in Count I against all defendants ex cept defendant Smith and plaintiff's claims in Count II except for his claims regarding the denial of disciplinary hearings. A Martinez report is ordered consistent with section V of this order. The report should be filed on or before August 20, 2018. The Clerk directed to transmit a copy of the complaint and this order to the Sheriff of Cherokee County. Signed by U.S. Senior District Judge Sam A. Crow on 08/26/18. 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. 18-3135-SAC

BOARD OF COMMISSIONERS, et al.,
Defendants.

O R D E R
This case is before the court for the purpose of screening
plaintiff’s pro se complaint and two recently filed motions to
amend the complaint.

The court proceeds 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

1

allegations

to

round

out

a

plaintiff's complaint.” Whitney v. State of New Mexico, 113 F.3d
1170, 1173–74 (10th Cir. 1997).
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).
The court, however, will not accept broad allegations which
lack sufficient detail to give fair notice of what plaintiff’s
2

claims are.

Section 1983 plaintiffs 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 claims against him or her,
as distinguished from collective allegations against the state.”
Robbins v. Oklahoma ex rel. Dep’t of Human Servs., 519 F.3d 1242,
1250 (10th Cir. 2008).
prisoner litigation.

This can be particularly important in
Gee v. Pacheco, 627 F.3d 1178, 1185 (10th

Cir. 2010)(“A prisoner claim will often not be plausible unless it
recites facts that might well be unnecessary in other contexts.”).
III. Plaintiff’s complaint and the motions to amend
Plaintiff’s

complaint

names

the

following

persons

as

defendants:

Pat Collins, a member of the Board of Commissioners

of

County;

Cherokee

Cory

Moates,

a

member

of

the

Board

of

Commissioners of Cherokee County; Neal Anderson, a member of the
Board of Commissioners of Cherokee County; David Groves, Sheriff
of Cherokee County; Michelle Tippie, Captain of the Cherokee County
Jail; Ayrek Smith, a correctional officer at the jail at relevant
times alleged in the complaint; Amanda Phillips, a shift supervisor
at the jail; April Macafee, a sergeant at the jail; Thomas Degroot,
an officer at the jail; Kristin Wagner, a nurse who does work at
the jail; and Curtis Nida, a correctional officer at the jail.
The

caption

of

the

complaint

Commissioners” as a defendant.

also

lists

the

”Board

of

The court assumes plaintiff is

suing the Board of Commissioners of Cherokee County.
3

In Count I plaintiff alleges excessive force and inadequate
training and supervision.

More specifically, he claims that on

September 8, 2017, defendant Aryek Smith with both hands pushed
plaintiff from the back into plaintiff’s cell.

Plaintiff alleges

that he suffered neck pain from a whiplash-type injury for which
he received medication.

Plaintiff further alleges that defendant

Smith and another correctional officer employed excessive force by
tasing an inmate other than plaintiff. Plaintiff claims that there
is

inadequate

training,

supervision

and

discipline

of

jail

officers which amounts to deliberate indifference to the inmates’
rights.

Finally, plaintiff asserts that his injury was not

evaluated by defendant Wagner until September 12, 2017, contrary
to an unspecified “excessive force policy.”
In Count II, plaintiff alleges a violation of the Prison Rape
Elimination Act.

Plaintiff asserts that defendant DeGroot shut

plaintiff in a closet with him and made plaintiff get naked while
Degroot’s body camera was recording.

He claims that the same

happened after every court date and attorney visit. He also claims
that defendant Tippie allowed this to happen.
Plaintiff makes a number of other allegations in Count II.
He contends that defendant DeGroot and Tippie have denied plaintiff
multiple disciplinary hearings in violation of jail policies and
plaintiff’s

constitutional

rights

4

to

due

process.

Plaintiff

contends he was told by them that they have no obligation to do so
and that it is a waste of time.
Plaintiff alleges that Degroot, Tippie, Macafee, Phillips and
Nida have retaliated against plaintiff for filing grievances,
resulting in lockdowns and segregation.

He claims that defendant

Groves has had plaintiff moved to a different jail.

He asserts,

somewhat vaguely, that he was moved again because of defendant
Tippie.

Finally, he asserts that he is in lockdown for asking to

speak with defendant Macafee and has been punished for speaking
with defendant Nida.
In

Count

III,

plaintiff

asserts

that

the

jail

has

an

unconstitutional policy which violates plaintiff’s rights under
the Fifth, Eighth and Fourteenth Amendments.

Plaintiff claims

that under this policy he has lost 33 pounds (23 pounds since
transferring to the Cherokee County Jail on February 1, 2018), but
is not permitted to eat extra portions even though he has been
diagnosed with hypoglycemia.

The policy allegedly does not allow

extra food portions for an inmate until his body mass index is
below 18.
Plaintiff has filed a motion for leave to amend the complaint
(Doc.

No.

10)

to

add

Sgt.

Christina

Manes

as

a

defendant.

Plaintiff alleges that on June 1, 2018, Sgt. Manes refused to let
plaintiff out to eat breakfast with everyone, mistakenly stating
that plaintiff was on administrative lockdown and that on June 3,
5

2018, she made plaintiff wait until after 10:00 p.m. to allow
plaintiff an hour out with general population.

Plaintiff further

alleges that on June 16 and 17, 2018 Sgt. Manes was supervising
plaintiff while he was handcuffed and was attempting to open a
protein shake with his cuffs on.

Additionally, plaintiff asserts

that Sgt. Manes “locked me down” for suggesting to another inmate
that he file a grievance concerning Manes.
Plaintiff has filed a second motion for leave to amend the
complaint to add a claim against defendant Tippie.

Plaintiff

asserts that Tippie will not allow plaintiff to make copies of
legal work unless he has funds in his jail account.
IV. Screening the complaint and motions to amend
A. Count I
In Count I, plaintiff alleges he suffered a whiplash-type of
neck injury after defendant Smith, a jail officer, pushed plaintiff
in the back with both hands into plaintiff’s cell.

Plaintiff

alleges that he and Smith exchanged unfriendly remarks prior to
Smith pushing plaintiff.1
The court will first address whether plaintiff has alleged
sufficient facts to state a claim of governmental liability in
Count I.

Plaintiff asserts that Cherokee County’s program for

1

Plaintiff also alleges that, contrary to county policy, there was a four-day
delay in plaintiff receiving medical attention after plaintiff submitted a
medical request. This allegation does not appear relevant to plaintiff’s claim
of excessive force.

6

training,

supervision

or

disciplining

detention

officers

was

inadequate and caused the excessive force incident alleged in Count
I.

Plaintiff, however, fails to allege facts showing how the

training, supervision or discipline was inadequate and how there
was a causal link to the excessive force incident.
The

Supreme

Court

has

stated

that

“proving

.

.

.

a

[governmental entity] itself actually caused a constitutional
violation by failing to train the offending employee presents
‘difficult problems of proof,’ and we must adhere to a ‘stringent
standard of fault,’ lest municipal liability under § 1983 collapse
into respondeat superior.”

Connick v. Thompson, 563 U.S. 51, 70

(2011)(quoting Board of County Commissioners of Bryan County v.
Brown, 520 U.S. 397, 406 and 410 (1997)).

Along this same line,

the Tenth Circuit has commented that where a plaintiff claims that
a governmental entity “has not directly inflicted an injury,” but
nonetheless has caused an employee to do so, “’rigorous standards
of culpability and causation must be applied to ensure that the
[governmental entity] is not held liable solely for the actions of
its employee.’”

Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th

Cir. 1998)(quoting Bryan County, 520 U.S. at 405)).
The theory of vicarious liability does not apply to actions
under § 1983.

Connick, 563 U.S. at 60.

Therefore, suing the Board

of County Commissioners or any governmental official in his or her
individual or official capacity must be premised upon more than
7

just an employment relationship with defendant Smith.

Plaintiff

must allege facts showing that the local government or individual
defendant is responsible for the alleged illegal conduct.
to

a

governmental

entity,

responsibility

may

be

Id.

As

shown

by

establishing that an illegal action was taken pursuant to an
official policy or custom.
take the form of:

Id. at 61.

A policy or custom may

1) a formal regulation or policy statement; 2)

an informal custom or widespread and well-settled practice; 3) the
decision of an employee with final policymaking authority; 4)
ratification by a final policymaker of a subordinate’s decision
subject to review and approval; or 5) failure to adequately train
or supervise and employee, so long as that failure results from
deliberate indifference to the injuries that may be caused. Bryson
v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010). Here,
plaintiff appears to assert that there was a custom and practice
of excessive force and a failure to train or supervise resulting
in deliberate indifference to the welfare of the inmates at the
Cherokee County Jail.

The facts alleged in the complaint to show

such a custom and practice or failure to train or supervise are
two alleged incidents of excessive force – the push-in-the-back
alleged in Count I and a tasing incident involving defendant Smith
and another jail officer.
A single incident of excessive force may be sufficient in a
“narrow range of circumstances” to show deliberate indifference.
8

Connick, 563 U.S. at 63-64.

The “single-incident” hypothetical

described by the Supreme Court involved deploying armed police
officers to capture fleeing felons with no knowledge at all of the
constitutional limitations on the use of deadly force.

Id. at 63-

64 & 67 (discussing Canton v. Harris, 489 U.S. 378 (1989)).
plaintiff alleges two incidents of excessive force.

Here,

But, he has

not alleged facts showing inadequate training or a lack of all
knowledge regarding the constitutional limits on the use of force
by jail officers.2 He has only made conclusory claims that training
was

inadequate.

Moreover,

governmental

liability

is

not

established where a single incident merely shows “that additional
training would have been helpful in making difficult decisions.”
Id. at 68.

“’Proving that an injury or accident could have been

avoided

an

if

[employee]

had

had

better

or

more

training,

sufficient to equip him to avoid the particular injury-causing
conduct’ will not suffice.”

Id. at 68 (quoting Canton, 489 U.S.

at 391).
The

court

concludes

that

plaintiff’s

complaint

fails

to

allege facts showing that the Board of County Commissioners or the
Sheriff of Cherokee County had a policy or custom which was

2

Plaintiff has cited Zuchel v. City and County of Denver, 997 F.2d 730 (10th
Cir. 1993) and Allen v. Muskogee, Oklahoma, 119 F.3d 837 (10th Cir. 1997) in
support of a claim that a single incident of excessive force can establish an
inadequate training program.
In both cases, however, there was evidence of
inadequate training beyond an incident of unconstitutional conduct.

9

deliberately indifferent to the use of excessive force or which
caused plaintiff’s alleged injuries.
Similarly, to properly allege the liability of a supervisory
defendant, plaintiff must describe an affirmative link between the
supervisor and the alleged constitutional violation.
Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010).
allegations of:

Dodds v.

This requires

1) a personal involvement in the violation; 2) a

sufficient causal connection between the supervisor’s involvement
and the constitutional violation; and 3) a culpable state of mind.
Id.

“Personal involvement” can be alleged by stating that:

1)

the supervisor personally participated in the alleged violation;
2) the supervisor exercised control or direction over the alleged
illegal acts, or the supervisor’s failure to supervise caused the
alleged illegal acts; 3) the supervisor knew of the violation and
acquiesced in its continuance; or 4) the supervisor promulgated,
created, implemented or utilized a policy that caused the alleged
deprivation of constitutional rights.

Id.

A “causal connection”

is alleged by claiming that a supervisor defendant set in motion
a series of events that the defendant knew or reasonably should
have

known

would

cause

constitutional rights.
Here,

plaintiff

others

to

deprive

plaintiff

of

her

showing

the

Id. at 1195-96.
has

failed

to

allege

facts

requisite affirmative link between a supervisory defendant and the
alleged incident of excessive force.
10

He has not asserted facts

showing personal involvement, a causal connection between the
excessive force and a supervisor’s action or inaction, or a
culpable state of mind.
No individual defendant other than defendant Smith is alleged
to have participated in the excessive force incident against
plaintiff.3

For the above-stated reasons, the court shall dismiss

all defendants except defendant Smith from Count I.
B. Count II
In Count II plaintiff alleges a violation of the Prison Rape
Elimination

Act

(PREA)

by

reason

of

numerous

strip

searches

conducted by defendant Degroot.

Plaintiff does not identify what

provision

been

of

the

PREA

has

violated

by

defendants.

Furthermore, this court has held that there is nothing in the PREA
to indicate that it created a private right of action enforceable
under § 1983.

Wiggins v. Sisco, 2017 WL 4923395 *2 (D.Kan.

10/31/2017); see also Krieg v. Steele, 599 Fed.Appx. 231, 232-33
(5th Cir. 2015)(citing cases from three district courts); Walsh v.

3Count
I includes some allegations regarding the delayed medical
examination and treatment following the excessive force incident. Plaintiff
does not assert, however, that the delay or some facet of his medical treatment
violated his rights to constitutional conditions of confinement. Nor does the
court perceive an obvious violation of plaintiff’s federal rights in Count I’s
allegations regarding his medical treatment. Therefore, the court screens Count
I solely as an excessive force claim. See Whitney v. State of N.M., 113 F.3d
1170, 1173–74 (10th Cir.1997)(a court should not supply additional factual
allegations to round out a plaintiff's complaint or construct a legal theory on
a plaintiff's behalf).

11

N.J. Dept. of Corrections, 2017 WL 3835666 *3-4 (D.N.J. 8/31/2017).
Therefore, the court shall dismiss this claim.
The court shall also dismiss plaintiff’s retaliation claim in
Count II.

To state a First Amendment retaliation claim, plaintiff

must allege: 1) he engaged in constitutionally protected activity;
2) the defendant’s actions caused him to suffer an injury that
would chill a person of ordinary firmness from continuing to engage
in that activity; and 3) the defendant’s adverse action was
substantially motivated as a response to his constitutionally
protected activity.

Gray v. Geo Group, Inc., 2018 WL 1181098 *5

(10th Cir. 3/6/2018)(citing

Mocek v. City of Albuquerque, 813 F.3d

912, 930 (10th Cir. 2015)).

Plaintiff has alleged that defendants

Degroot, Tippie, Macafee, Phillips and Nida “have all participated
in retaliation for me filing grievances, resulting in lockdowns
and segregation.”

Doc. No. 1, p. 11.

Plaintiff, however has

failed to describe facts showing that these defendants’ actions
were motivated to retaliate against plaintiff.

The same can be

said as to plaintiff’s allegations that defendant Groves and
defendant Tippie had plaintiff moved, and that plaintiff was in
lockdown for asking to speak with Macafee and speaking with Nida.
Plaintiff’s general and subjective conclusions regarding motive
are not sufficient to state a claim for retaliation.

See Gray, at

*5; Banks v. Katzenmeyer, 645 Fed.Appx. 770, 772 n.2 (10th Cir.
2016).
12

C. Motion to amend - Doc. No. 10.
Plaintiff’s first motion to amend alleges discrimination,
retaliation, and pretrial punishment, violating plaintiff’s rights
under the First, Fifth and Fourteenth Amendments. But, plaintiff’s
allegations fail to state a claim.
shall be denied.

Therefore, the motion to amend

Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th

Cir. 1993)(leave to amend may be denied upon a showing that the
proposed amendment would be futile).
The conditions plaintiff describes do not amount to the denial
of “’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)).

This is the Fourteenth Amendment standard which applies

to pretrial detainees such as plaintiff.

Plaintiff also does not

describe facts showing a chilling injury or a motivation to
retaliate against constitutionally protected activity.

Thus,

plaintiff has not properly alleged a First Amendment retaliation
claim.
Upon
Supreme

considering
Court

has

legitimate

held

that

an

penological
inmate

interests,

does

not

have

the
a

constitutional right to provide legal assistance to other inmates.
Shaw v. Murphy, 532 U.S. 223, 230-32 (2001).
13

The court does not

believe

the

rule

would

administrative grievances.

be

different

as

to

advice

to

file

Barton v. Huerta, 613 Fed.Appx. 426,

427 (5th Cir. 2015); Watlington v. Reigel, 2016 WL 2897618 *6
(M.D.Pa. 5/18/2016) aff’d, 723 Fed.Appx. 137, 140 (3rd Cir. 2018);
Edgar

v.

Crawford,

2009

WL

3835265

*3

(W.D.Mo.

11/16/2009).

Therefore, it would be futile to amend the complaint to claim that
plaintiff was retaliated against for exercising a constitutional
right to assist another inmate with a grievance.
Finally,

the

Equal

Protection

Clause

does

not

prohibit

classifications; “it simply keeps governmental decisionmakers from
treating differently persons who are in all relevant respects
alike.”

Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).

Plaintiff

alleges in conclusory fashion that he has been discriminated
against and that he is treated differently than the majority of
inmates.

These broad claims of discrimination fail to assert

sufficient specific facts demonstrating differential treatment of
similarly-situated individuals.

See Khalik v. United Air Lines,

671 F.3d 1188, 1194 (10th Cir. 2012)(affirming the dismissal of
statutory discrimination claims for lack of factual detail).
D. Motion to Amend – Doc. No. 11.
Plaintiff alleges that his constitutional right to access to
the courts is being denied by defendant Tippie who allegedly is
barring plaintiff from making copies of papers at $.30 a copy
unless plaintiff has the money in his jail account.
14

Plaintiff

states that he has been ordered by the Tenth Circuit to complete
and file an entry of appearance form within 30 days and send a
copy to the opposing parties.

In general, “[p]hotocopy access is

not an independent constitutional right, but exists only where
necessary to the prisoner’s right to seek legal redress.” Muhammad
v. Collins, 241 Fed.Appx. 498, 499 (10th Cir. 2007).

Plaintiff has

not yet alleged facts showing that his access to the courts has
been unduly hampered by a denial of photocopies.

He does not

indicate, for example, that he cannot copy by hand the entry of
appearance form.

Also, he has not claimed that he has asked the

Tenth Circuit for additional time so that he may obtain sufficient
funds for his jail account.

Nor has he demonstrated that he will

suffer an imminent legal injury if he is denied the copies he
seeks. Therefore, the court finds that the motion for leave to
amend should be denied.
739-40

(10th

Cir.

See Holt v. Werholtz, 185 Fed.Appx. 737,

2006)(denial

of

a

somewhat

similar

claim

regarding restrictions on photocopying because of debt prisoner
owed for making legal copies).
V. Martinez report
The court cannot properly screen plaintiff’s claims in Count
II regarding the denial of disciplinary hearings and in Count III
without additional information from appropriate officials of the
Cherokee County Jail.

Accordingly, the court shall order the

appropriate officials of the Cherokee County Jail and the Sheriff
15

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 alleged
denial of disciplinary hearings as described in Count II and the
allegations in Count III:
(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
16

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).
VI. Conclusion
For the above-stated reasons, the court directs as follows.
Plaintiff’s motion to amend (Doc. Nos. 10 and 11) are denied
without prejudice.

Plaintiff is ordered to show cause by July 19,

2018 why the court should not dismiss plaintiff’s claims in Count
I against all defendants except defendant Smith and plaintiff’s
claims in Count II except for his claims regarding the denial of
disciplinary hearings.
A Martinez report is ordered consistent with section V of
this order.

The report should be filed on or before August 20,

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 26th day of June, 2018, at Topeka, Kansas.

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

17