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

Filing 153

MEMORANDUM AND ORDER ENTERED: For the reasons stated herein, Defendants' motion for summary judgment is GRANTED. The clerk is directed to enter judgment in favor of Defendants. Signed by District Judge John W. Broomes on 3/31/2023. Mailed to pro se party Brian Michael Waterman by regular mail. (jal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRIAN MICHAEL WATERMAN,
Plaintiff,
v.

Case No. 18-3092-JWB-KGG (Lead Case)
& No. 18-3135-JWB-KGG

MICHELLE TIPPIE, et al.,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the court on Defendants’ motion for summary judgment. (Doc.
344.) Plaintiff was given an extension of time to respond and failed to do so. (See Doc. 350.) The
matter is fully briefed (Doc. 345) and ready for decision.

For the reasons stated herein,

Defendants’ motion is GRANTED.
I.

Facts and Procedural History
The following statement of facts is taken from Defendants’ memorandum in support of

summary judgment.1

Factual disputes about immaterial matters are not relevant to the

determination before the court. Therefore, immaterial facts and factual averments that are not
supported by record citations are omitted.
Plaintiff was a pretrial detainee at the Cherokee County Jail (the “Jail”) from May 2016
until January 2022. Plaintiff was briefly transferred to other jails but was primarily held at the Jail
during this time. Throughout this time, Plaintiff was awaiting trial on charges of attempted first

1

Because Plaintiff never filed a response, Defendants’ statement of facts is treated as unopposed. But the court still
looks to the factual allegations to determine whether they are supported by the record and are sufficient to establish
that Defendants are entitled to summary judgment. Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002).

degree murder, aggravated kidnapping, aggravated battery, and aggravated burglary. Plaintiff was
classified as a maximum custody inmate because of the offenses for which he was being held and
his disciplinary history. (Doc. 345 at ¶¶ 1, 3.)
Between April 18 and May 4, 2017, Plaintiff was held in C-Pod. Plaintiff reported to
Officer Gina Brumback on May 1 that other inmates in C-Pod were giving him trouble and calling
him racist because of the tattoo across his chest which reads “White Pride.” On May 3, Plaintiff
sent a general request through the kiosk system asking to be re-classified and moved to B-Pod
because of the racial problems he was having with other inmates in C-Pod. In that request, he
threatened to sue the Jail if something happened to him. (Id. at ¶¶ 4–6.)
Also on May 3, Plaintiff sent a grievance to staff complaining about “these blacks”
threatening him and making racial remarks. (Doc. 345-6.) Plaintiff felt the Jail was putting his
life in jeopardy, failing to provide a safe environment, and leaving him in C-Pod in the hopes that
he would be injured by the other inmates. Plaintiff never specifically identified which inmates
were bothering or threatening him. The Jail granted Plaintiff’s requests to be moved on May 4,
but because of his maximum custody classification, he was moved to segregation rather than BPod. Plaintiff was in segregation from May 4 to May 9, when he was moved to E-Pod. (Doc. 345
at ¶¶ 7–9.)
Plaintiff attended Jehovah Bible study on May 14, 2017, after the rest of the group was
finished. Plaintiff was not allowed to attend with the rest of the group because of his protective
custody status. On May 15, Plaintiff attended church. Bible study was cancelled on May 23, so
none of the inmates attended. Plaintiff attended church on May 28. On May 29, church was
cancelled and none of the inmates attended. Plaintiff attended church on June 4. On June 12, the
pastors who provide church services were not able to stay long enough to provide services to E-

2

Pod, where Plaintiff was housed. Plaintiff encouraged all the inmates in E-Pod to write complaints.
(Id. at ¶¶ 11–16.)
On May 19, Plaintiff filed a grievance complaining that his “religious services have been
cut in half.” (Doc. 345-9 at 2.) Then on May 30, Plaintiff filed another grievance requesting to
go to church with everyone else and arguing that his rights were being violated because his church
services were cut in half. On May 31, Captain Tippie responded that incompatibles were not able
to go to church together because of safety and security issues and that was why Plaintiff had been
unable to attend certain church services. (Doc. 345 at ¶¶ 17–18.)
The next event relevant to this case occurred on October 15, 2017. Officer Anderson
ordered all inmates to move away from the tables and stand by their doors for tray pickup at the
end of their meal. Plaintiff continued to wipe off the tables and Officer Anderson again instructed
him to go stand by his door. Plaintiff finally went to his door; Officer Anderson directed the officer
in the control room to secure his door and lock him down for not following directions. When
Plaintiff was informed that he was being locked down, he walked out and went to the kiosk.
Plaintiff stated that he was going to use the kiosk and that he would lock down when he felt like
it. After giving him a few minutes to use the kiosk, Officer Price asked him to return to his cell to
lock down. Plaintiff was given several other chances to follow instructions and then Officer Price
finally advised him that he needed to return to his cell to lock down or he would be taken to
segregation. Plaintiff went back to his cell and then stated that Officer Price should come and take
him to segregation. Officer Phillips completed a Jail Incident report and recorded violations for
failure to follow directions, failure to lock down immediately, and for participating in or inciting
a riot or facility disturbance. (Id. at ¶¶ 19–21; Doc. 345-10 at 1.)

3

Also on October 15, Officer Howard was conducting medication rounds in E-Pod when
Plaintiff left his cell without being fully dressed. Officer Howard twice told Plaintiff that he
needed to be fully dressed outside of his cell, and Plaintiff swore at him. Officer Howard wrote a
Jail Incident report and noted violations for wearing uniform improperly while out of cell, failure
to follow an officer’s directions, and treating officers with disrespect. (Doc. 345 at ¶¶ 22–23; Doc.
345-11.)
Two days later, on October 17, Officer DeGroot, the disciplinary officer at the time, went
to Plaintiff’s cell to discuss the write ups Plaintiff had received on October 15 from Officers
Howard and Phillips. Plaintiff saw Officer Phillips holding a property tote and asked Officer
DeGroot if they were taking him to segregation. Officer DeGroot told him that was not the plan.
Plaintiff tried to argue with Officer DeGroot about the discipline policy and whether Plaintiff was
entitled to a hearing in front of the guards. Officer DeGroot informed Plaintiff that he had reviewed
the camera footage related to the write ups. Then, Plaintiff became aggressive, arguing with
Officer DeGroot about an incident that happened with another inmate. Plaintiff repeatedly stated
that another inmate had called Officer DeGroot a rude explicit name to his face and was not sent
to segregation. Officer DeGroot tried to explain that the other inmate did not call him that to his
face and focus on the disciplinary reports written about Plaintiff. He then explained that he was
going to place Plaintiff in administrative segregation for a minimum of 15 days, depending on
Plaintiff’s behavior. (Doc. 345-12 at 1.)
At that time, Officer DeGroot ordered Plaintiff to pack his stuff up so they could take him
to segregation. He refused and continued arguing. Plaintiff got in Officer DeGroot’s face and
yelled sexual innuendos and explicit insults, stating that if he was going to have 15 days in
segregation, he was going to earn them. Officer DeGroot asked Officer Phillips for her handcuffs

4

and ordered Plaintiff to place his hands behind his back. Even after the handcuffs were on, Plaintiff
continued yelling obscenities and resisting the officers. The officers began walking him to
segregation and met Captain Tippie in the hallway, where Plaintiff started calling her an
inappropriate name. When they reached the segregation cell, Plaintiff tensed up as the officers
advised him to go to his knees. Once the officers got him onto his knees in the cell, he started
yelling about his hands and wrists. Captain Tippie looked at his hands and wrists, which appeared
to be fine. Plaintiff continued to yell and call her names as the officers exited the cell and secured
the door. (Id. at 2.)
In the morning on October 18, 2017, Plaintiff called Officer Phillips several vulgar names.
He also asked Officer Phillips about the city she lived in, threatening that he would find her and
her child after he got out of jail. Sergeant Manes observed this interaction via the camera in
Plaintiff’s cell and wrote a Jail Incident report about it. She noted violations for intimidation or
coercion of fellow inmates or correctional staff, treating officers with disrespect or discourtesy,
and disorderly conduct. (Doc. 345-17.)
Later that same day, on October 18, Plaintiff spread feces all over the walls of his cell while
in segregation. Plaintiff stated that he was going to cover the entire cell in feces and that the
officers were going to have to come in and get him. (Doc. 345-14.) Later that day, Plaintiff called
to the control room via intercom and advised Sergeant McAfee that he was ready to clean his cell.
Plaintiff informed the officers that he wanted the mop handle so he could beak it and beat the
officers with it. The officers provided Plaintiff with disinfectant spray and rags. Plaintiff dumped
out the disinfectant spray and filled the bottle with feces and water. He then put the spray nozzle
back on and started spraying the mixture all over his cell. The officers consulted with Captain
Tippie on what to do, then informed Plaintiff that until he gave the spray bottle back, he would not

5

be able to have any food. Plaintiff continued to taunt the officers to come into his cell and made
obscene gestures towards the camera in his cell. (Doc. 345-16 at 1.)
Shortly thereafter, Plaintiff began ripping up the rags and trying to attach the pieces of rag
to the fire sprinkler in his cell. Captain Tippie advised him that he would be charged $10.00 for
the rags for the destruction of property. Plaintiff was unable to attach any of the rags to the
sprinkler because they kept ripping. Eventually, Plaintiff dumped the water out of the spray bottle
and let the officers know he was ready to clean his cell. (Id.)
Plaintiff stayed in segregation from October 17 to November 7, 2017. (Doc. 345-3 at 1.)
Plaintiff told Officer Howard while he was in segregation on October 21 that he made the mess in
his cell because he wanted to make “the worst mother fucking conditions” for the guards to come
into every day. (Doc. 345-182 at 6:27–6:35.)
Plaintiff was residing in C-Pod on March 17, 2018, with an inmate who was a sex offender.
Captain Tippie did not inform the inmates or the officers that this inmate was a sex offender
because sex offenders are often attacked in jail if that information is made public. (Doc. 345-1 at
3.) Plaintiff indicated to Officer Phillips that he could not be around this other inmate, who he had
reason to believe was a sex offender. Officer Phillips denied that there was a sex offender in the
pod and informed Plaintiff that if he wanted to be segregated from the other inmates, he would
have to be placed in segregation. Later that day, Plaintiff refused to come out of his cell for lunch
because he felt the other inmates were going to “jump him” as soon as he went out into the day
room. (Doc. 345-19 at 1.) Officer Phillips informed Plaintiff that his options were to go out into
the day room for his lunch or to be moved into segregation for his protection, but he would not be
able to bring his personal items into segregation. Plaintiff chose to stay in his cell and miss lunch.

2

Doc. 345-18 is a placeholder for Exhibit S, a body camera video which was conventionally filed with the court. This
citation refers to the video itself.

6

During lunch, he paced around in his cell and made intimidating gestures towards the other inmates
who were in the day room. That afternoon, Plaintiff continued his agonizing behaviors, making a
loud phone call to his mother where he mentioned being locked out of his cell with sex offenders
and locked in a pod with child molesters. He also continued making intimidating gestures towards
the other inmates. Officer Phillips and Officer West then took Plaintiff to segregation for his own
protection. (Id. at 1–2.)
After Plaintiff was in segregation, Officer Phillips discovered from another inmate that
there had been a physical altercation on or about March 14, 2018. Officer Phillips and Officer
West went to C-Pod to talk to Cavin Williams, another inmate. After assuring Williams that the
officers would not tell his pod what he told the officers, Williams explained that Plaintiff had gone
into Williams’ cell and punched him in the back of his head. Williams then grabbed Plaintiff’s
arms to keep him from hitting him again and that after a short period of wrestling, Plaintiff gave
up and left. (Doc. 345-22.) Plaintiff was asked about this incident and whether he hit Williams in
Defendants’ requests for admissions. Rather than admit or deny the request, Plaintiff refused to
answer, citing his Fifth Amendment privilege not to incriminate himself.3 (Doc. 345-24 at 6.)
On April 21, 2018, Officer West went to segregation4 to let Plaintiff have a shower and an
hour outside of his cell. Plaintiff asked for another bottle of shampoo, stating that he must have
left his bottle of shampoo in the shower yesterday. Officer West gave him an additional bottle of
shampoo. Officer West then discovered that Plaintiff was hoarding items, including shampoo and
fungal infection cream.

Officer West wrote a Jail Incident report, noting violations for

3

The court is allowed to draw an adverse inference against Plaintiff for invoking his Fifth Amendment right in a civil
case. MacKay v. DEA, 664 F.3d 808, 820 (10th Cir. 2011) (“The Fifth Amendment does not forbid adverse inferences
against parties to civil actions when they refuse to testify in response to probative evidence offered against them….”)
(alterations and quotations omitted).
4
Plaintiff was not in segregation for this entire time period; he left segregation on March 31 and returned to segregation
on April 14, 2018. (Doc. 345-30 at 4.) His placement in segregation on April 14 is not at issue.

7

accumulating extra authorized items (shampoo), stockpiling medications, and misrepresentation
or manipulation for giving a false statement to Officer West. (Doc. 345-25.)
The next day, on April 22, Plaintiff sent a general request through the kiosk complaining
about being written up for having the fungal infection cream in his cell. In that general request,
Plaintiff used vulgar language and accused officers of being “perverts” and wanting to see the
female inmates apply fungal infection cream in front of them. He also suggested that Officer
Phillips was a lesbian and suggested that officers were doing something inappropriate with female
inmates on the weekends. On April 24, after reviewing the general request, Captain Tippie
informed Plaintiff that he would receive an additional 15 days of segregation for hoarding
medication and for making harassing and sexually explicit comments about jail staff. (Doc. 34526; Doc. 345-27 at 1.) Plaintiff stayed in segregation until May 8, 2018, when he was reassigned
to B-Pod.5
These two cases6 were filed by Plaintiff, pro se, in 2018 and later consolidated for judicial
efficiency. The complaints are brought under 42 U.S.C. § 1983 alleging various constitutional
violations by persons connected with the Jail. Specifically, Plaintiff complains he was denied
religious services in May and June 2017 in violation of the First Amendment and that he was
denied due process under the Fourteenth Amendment on four occasions when he was placed in
administrative segregation. (Doc. 339 at 2.) Plaintiff originally brought suit against the Jail, David
Groves, Michelle Tippie, Thomas DeGroot, Amanda Phillips, Kristin Wagnor, April Macafee, and
Judah Ellis in Case No. 18-3092. (Doc. 1 at 1–3.) In Case No. 3135, Plaintiff brought suit against
David Groves, Michelle Tippie, Thomas DeGroot, Kristin Wagner, Dr. Jonathan Manzer, Manzer

5

Although Plaintiff makes a claim regarding placement in segregation on May 3, 2018, Plaintiff was already in
segregation on that date because of the 15 days of segregation he received on April 24, 2018. (Doc. 345-30 at 4; Doc.
345-1 at 4.)
6
The two cases are 18-3092-JWB and 18-3135-JWB.

8

Health Clinic, Ayrek Smith, Danny Davis, and Amanda Phillips. (Case No. 18-3135, Doc. 53 at
1–3.) Some of these claims were brought against Defendants in their official capacity and in their
individual capacity.

(Id.)

A number of these Defendants have been dismissed from the

consolidated cases. The remaining Defendants who now move for summary judgment are Thomas
DeGroot,7 Judah Ellis, Amanda Phillips, and Michelle Tippie. Defendants are sued in their
individual capacities, as the official capacity claims were previously dismissed. (Doc. 57 at 4.)
II.

Standard
Summary judgment is appropriate if the moving party demonstrates that there is no genuine

dispute as to any material fact, and the movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). A fact is “material” when it is essential to the claim, and the issues of fact are
“genuine” if the proffered evidence permits a reasonable jury to decide the issue in either party's
favor. Haynes v. Level 3 Commc'ns, 456 F.3d 1215, 1219 (10th Cir. 2006). The movant bears the
initial burden of proof and must show the lack of evidence on an essential element of the claim.
Thom v. Bristol—Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2004) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322–23 (1986)). The nonmovant must then bring forth specific facts
showing a genuine issue for trial. Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005).
Conclusory allegations are not sufficient to create a dispute as to an issue of material fact. See
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The court views all evidence and
reasonable inferences in the light most favorable to the nonmoving party. LifeWise Master
Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004).

7

Curiously, Thomas DeGroot was dismissed from the case on June 26, 2019. (Doc. 57 at 5–6.) But the motion for
summary judgment notes that he is a filer (Doc. 344) and the memorandum in support of the motion for summary
judgment specifically references DeGroot (Doc. 345 at 28).

9

Where, as here, the motion for summary judgment is unopposed, the standard is slightly
different. United States v. Dawes, 344 F. Supp. 2d 715, 718 (D. Kan. 2004). The court may not
grant a motion for summary judgment only because it is unopposed; instead, “[i]t is the role of the
court to ascertain whether the moving party has a sufficient basis for judgment as a matter of law.”
Id. (citing E.E.O.C. v. Lady Baltimore Foods, Inc., 643 F. Supp. 406, 407 (D. Kan. 1986)). The
court should be sure in making this assessment “that no undisclosed factual dispute would
undermine the uncontroverted facts.” Id.; see also Reed v. Bennett, 312 F.3d 1190, 1195 (10th
Cir. 2002) (“The court should accept as true all material facts asserted and properly supported in
the summary judgment motion. But only if those facts entitle the moving party to judgment as a
matter of law should the court grant summary judgment.”).
Qualified immunity exists to protect public officials acting in their individual capacities
“from liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Once a defendant asserts the defense of qualified immunity, “the burden shifts to the plaintiff to
show that: (1) the defendant violated a constitutional right and (2) the constitutional right was
clearly established.” Redmond v. Crowther, 882 F.3d 927, 935 (10th Cir. 2018) (quoting Koch v.
City of Del City, 660 F.3d 1228, 1238 (10th Cir. 2011)). These two prongs need not be addressed
in order. Crane v. Utah Dep’t of Corr., 15 F.4th 1296, 1303 (10th Cir. 2021).
III.

Analysis
Defendants argue that summary judgment is appropriate because Defendants are entitled

to qualified immunity and because there were no violations of Plaintiff’s constitutional rights.

10

(Doc. 345 at 2.) As the court previously noted, Plaintiff never filed a response to Defendants’
motion for summary judgment.
A. Qualified Immunity
Defendants argue that they are entitled to qualified immunity because Plaintiff has sued
Defendants in their individual capacities and Defendants did not violate Plaintiff’s constitutional
rights. (Doc. 345 at 27–28.) As previously noted, Plaintiff did not respond to Defendants’ motion
for summary judgment and thus, has made no arguments against qualified immunity.
Plaintiff has failed to produce any evidence or argument against qualified immunity
because he failed to respond to Defendants’ motion. Accordingly, Plaintiff has failed to carry his
burden, and the court will not shift the burden to Defendants. Babakr v. Fowles, Case No. 202037-EFM, 2023 WL 183837, at *6 (D. Kan. Jan. 13, 2023) (citing Smith v. McCord, 707 F.3d
1161, 1162 (10th Cir. 2013)). Defendants are entitled to qualified immunity. Nevertheless, in an
effort to be thorough, the court will continue to address the arguments presented as to whether
there were any constitutional violations.8
B. Count I (Case No. 18-3092) & Count II (Case No. 18-3135)
These counts relate to Plaintiff’s placement or continued placement in administrative
segregation9 at the Jail. Plaintiff complains that his right to due process was denied when he was
placed in administrative segregation without first receiving a hearing. (Doc. 1 at 5; Case No. 183135, Doc. 53 at 4.) He also complains that his placements in administrative segregation were
improper pretrial punishment. (Doc. 1 at 2.)

8

It is not entirely clear from Plaintiff’s complaint which counts are against which Defendants. Further, as the court
noted supra n. 7, Defendant Thomas DeGroot seems to have already been dismissed from the case, yet a count against
him remains. (Doc. 339 at 16.) Accordingly, the court addresses the issues raised by count and in chronological order
rather than by defendant.
9
The term “administrative segregation” often “refers to solitary confinement.” Williamson v. Stirling, 912 F.3d 154,
176 (4th Cir. 2018).

11

Defendants argue that Plaintiff was not subject to improper pretrial punishment but rather
the Jail had a legitimate governmental interest in placing Plaintiff in administrative segregation to
preserve internal order and to promote institutional security. (Doc. 345 at 13.) Defendants also
argue, in the alternative, that Plaintiff was not denied due process and that even if Plaintiff was
denied due process, his claims still fail because the outcome would not have changed. (Id. at 21–
22.)
Pretrial detainees cannot be subject to punishment while they await trial. Bell v. Wolfish,
441 U.S. 520, 535 (1979) (“For under the Due Process Clause, a detainee may not be punished
prior

to

an

adjudication

of

guilt

in

accordance

with

due

process

of

law.”).

But pretrial detainees may be confined while they await trial and subject to the restrictions and
conditions of the detention facility. Id. at 536–37. The question is whether a condition of the
pretrial detainee’s confinement is “punishment” or not.
“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 incidental
to some other legitimate government purpose.” Peoples v. CCA Detention Ctrs., 422 F.3d 1090,
1106 (10th Cir. 2005), vacated in part on re’hg en banc, 449 F.3d 1097. “Thus, if a pretrial
detainee is placed in segregation for a managerial purpose and not for punishment, no process is
required.” Hardesty v. Saline Cnty. Jail, Case No. 19-3211-SAC, 2020 WL 1547823, at *3 (D.
Kan. Apr. 1, 2020). A jail has a legitimate interest in segregating inmates from the general
population for many reasons, including where there are threats to safety and security. Cox v.
Denning, Case No. 12-2571-DJW, 2014 WL 4843951, at *24 (D. Kan. Sept. 29, 2014).
1. October 17, 2017

12

On October 17, 2017, Plaintiff was taken to administrative segregation and placed there
for 15 days. Defendants argue that this placement in administrative segregation was not punitive
but that it was necessary for “the maintenance of safety, order, and discipline” at the Jail. (Doc.
345 at 17.)
Before Plaintiff was placed in administrative segregation, he refused to follow basic rules
of the Jail – he refused to stand by his cell door while trays were picked up after mealtime and he
refused to comply with several orders by Jail staff to go into his cell for lockdown. Additionally,
he violated Jail rules when he exited his cell without being fully dressed. After Plaintiff was
written up for these rule violations, Officer DeGroot, the disciplinary officer, went to Plaintiff’s
cell to review the writeups with him. Officer DeGroot confirmed in his report that he told Plaintiff
he did not intend to place Plaintiff in segregation for these violations. But while Officer DeGroot
was there to speak with Plaintiff, Plaintiff acted in a belligerent manner, using crude and sexually
suggestive language and curse words and screaming in Officer DeGroot’s face. Because of
Plaintiff’s completely inappropriate and aggressive behavior, he was taken to segregation.
Plaintiff admitted that if he was going to get 15 days in segregation, he was going to earn them;
the court finds that his behavior did indeed “earn” him time in segregation.
But the court wishes to make clear that despite Plaintiff “earning” time in segregation, the
time in segregation was not a punishment for Plaintiff’s poor behavior. Instead, it was necessary
to further order and security within the Jail. Clearly, a jail cannot function if inmates act
belligerently, getting in the faces of officers and screaming obscenities at them. To maintain order,
Plaintiff had to be taken to segregation.
While Plaintiff was in segregation, he made a mess in his cell with his own feces and tried
to spray the officers with a mixture of his feces and water. He eventually decided to clean up his

13

own mess, but he was kept in segregation for additional time because of his behavior. The Jail
could not return Plaintiff to general population with other inmates while he was engaging in such
behavior because the other inmates would not have tolerated that behavior which would put
Plaintiff in danger. Further, Plaintiff’s behavior was so aggressive and erratic that he was a danger
to other inmates and guards if he was placed back in general population at that time. Both
Plaintiff’s initial and continued placement in segregation were to further the legitimate purposes
of maintaining order and security at the Jail.
2. March 17, 2018
On this occasion, Plaintiff specifically requested to be taken to segregation because he
believed another inmate in his pod was a sex offender. Officers ultimately complied with this
request because the officers were worried the other inmates would kill Plaintiff if he was not taken
to segregation because Plaintiff was agitating the other inmates. The Jail had an obligation to
protect Plaintiff. Bailey v. Andrews, Case No. 2:16-3201-JAR, 2019 WL 1897842, at *6 (D. Kan.
Apr. 29, 2019) (prison officials must “take reasonable measures to guarantee the safety of the
inmates.”) (internal quotation omitted). Plaintiff was not entitled to any due process before being
taken to segregation at his own request.
While Plaintiff was in segregation, officers learned that Plaintiff had gone into the cell of
another inmate and punched him in the head. To ensure the safety of both Plaintiff and the other
inmates, Plaintiff was given 15 days in segregation. This was not a punishment for punching
another inmate but rather was intended to ensure the safety of Plaintiff and the other inmates. This
was a legitimate governmental reason – to promote safety and security in the Jail.
3. April 25, 2018

14

While Plaintiff was in segregation on this occasion,10 officers found that Plaintiff was
“hoarding” medication, keeping it inside his cell rather than using it as he was directed to do. He
also lied to an officer to get an extra bottle of shampoo. After being written up for these violations,
Plaintiff sent a general request through the jail kiosk system about the write up and included vulgar
language and accused officers of mistreating or abusing female inmates. Captain Tippie notified
Plaintiff that he would be receiving an additional 15 days of segregation for accumulating
medication in his cell and for making the harassing and explicit comments about staff.
The Jail had a legitimate interest in controlling how medications are dispensed to inmates.
Todd v. Bigelow, 497 F. App’x 839, 841 (10th Cir. 2012) (recognizing “legitimate penological
interest in prevention of drug abuse”). It was proper for the Jail to continue to keep Plaintiff in
segregation where it was clear that he was violating rules for medication and could have been a
danger to himself or others.

Further, the jail had a legitimate interest in preventing and

discouraging inmates from sexually harassing officers or others. Mauro v. Arpaio, 188 F.3d 1054,
1059 (9th Cir. 1999) (“… there is no doubt that protecting the safety of guards in general is a
legitimate interest, and that reducing sexual harassment in particular likewise is legitimate.”).
4. May 3, 2018
Plaintiff alleges in his First Amended Complaint that he filed a grievance on May 3, 2018
and was forced to do another 18 days in segregation. (Case No. 18-3135, Doc. 53 at 6.) Plaintiff
was already in segregation on May 3, 2018, due to the incidents detailed above (hoarding
medication and sending harassing and inappropriate messages through the kiosk). He did not

10

As previously noted, Plaintiff’s placement in segregation prior to April 25, 2018, is not at issue.

15

receive additional time in segregation on May 3 and was released from segregation on May 8.
Accordingly, Defendants are entitled to summary judgment on this claim.11
C. Count VI (Case No. 18-3092)
Plaintiff alleges that his religious beliefs were burdened in 2017 because he was not able
to attend church services or Bible study with incompatible inmates. (Doc. 1 at 17.) He also alleges
that on one occasion, he was prevented from attending services. (Id.) Defendants argue that these
allegations do not show a substantial burden of Plaintiff’s beliefs. (Doc. 345 at 24.)
“To state a valid constitutional claim, a prisoner must allege facts showing that officials
substantially burdened a sincerely held religious belief.” Williams v. Hansen, 5 F.4th 1129, 1133
(10th Cir. 2021). If the prisoner can show a substantial burden, “officials must identify a legitimate
penological interest.” Id. Then, the court balances certain factors to determine reasonableness of
the penological interest or prison regulation. Kay v. Bemis, 500 F.3d 1214, 1219 (10th Cir. 2007).
Here, Plaintiff cannot show that his religious beliefs were substantially burdened. To
begin, the court does not question that Plaintiff has sincerely held religious beliefs. Plaintiff alleges
that on one occasion, he was prevented from attending religious services by Officer Ellis. (Doc. 1
at 17.) Defendants have not disputed that Plaintiff was prevented from attending religious services
on one occasion.12 Assuming then that this incident occurred, one incident is simply not enough
to rise to the level of a substantial burden on Plaintiff’s religious beliefs. Hachmeister v. Kline,
Case No. 12-3263-SAC, 2013 WL 237815, at *5 (D. Kan. Jan. 22, 2013) (“… isolated or sporadic
incidents are not sufficient to show a substantial burden.”); Strope v. Cummings, 381 F. App’x

11

The court has considered whether this reference to May 3 should have instead been a reference to placement in
segregation on May 3, 2017. But Plaintiff was placed in segregation on May 4, 2017, not May 3, and he remained
there for only three days until he was taken to a medical cell. (Doc. 345-3 at 2.) After two days in the medical cell,
Plaintiff went back to E-Pod. (Id.) Thus, this May 3 reference likely does not reference 2017 and, as explained above,
does not reference 2018.
12
Defendants reference an affidavit of Judah Ellis which should be attached to the memorandum in support as Exhibit
J. (Doc. 345 at 5.) Exhibit J was not attached to the memorandum.

16

878, 882 (10th Cir. 2010). And Plaintiff was otherwise able to attend church services or Bible
study several times during May and June of 2017.
Plaintiff also alleges that he was restricted from practicing his religious beliefs when he
could not attend church or Bible study with his “incompatibles.” As discussed above, jail officials
have an obligation to protect inmates. Bailey v. Andrews, 2019 WL 1897842, at *6. Plaintiff
himself requested to be separated from these incompatible inmates because he felt threatened by
them. Accordingly, he was not able to attend church services or Bible study with those inmates
and was able to do so at a different time. Plaintiff has not shown that he had a right to attend
services with these other inmates.
As to Plaintiff’s complaints that sometimes his services were shortened, Defendants argue
that shortened services are not a substantial burden. Plaintiff correctly notes that at times, services
for all inmates were cancelled because the pastors who lead these groups were unable to come to
the Jail. But that was not specific to Plaintiff – those services were cancelled for the Jail as a
whole. And Plaintiff was still able to attend church and Bible study on several occasions. Cf.
McKinley v. Maddox, 493 F. App’x 928, 933 (10th Cir. 2012) (plaintiff claimed “he was
intentionally denied the right to attend all church services, either offsite or onsite at [the facility],
for a month”; court found this was sufficient allegation of substantial burden).
The court finds that these incidents do not amount to a substantial burden on Plaintiff’s
sincerely held religious beliefs.

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IV.

Conclusion
For the reasons stated herein, Defendants’ motion for summary judgment is GRANTED.

The clerk is directed to enter judgment in favor of Defendants.
IT IS SO ORDERED this 31st day of March, 2023.

__s/ John W. Broomes____________
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE

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