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

Filing 45

ORDER ENTERED: The motions to amend at Doc. Nos. 33 and 34 are denied as duplicative; 2) the motion to amend at Doc. No. 18 , treated as a motion to supplement, shall be granted in part, adding as defendants Danny Davis and an unnamed food prov ider with regard to Count Three; 3) the motion to amend a Doc. No. 21 , treated as a motion to supplement, shall be granted, adding Dr. Johnathan Manzer and the Manzer Health Clinic as defendants as to Count Three, and adding a separate claim agains t defendants Wagner and the Manzer Health Clinic as to the treatment of a staph infection; 4) the motion to amend at Doc. No. 37 , treated as a motion to supplement shall be granted in part, adding anexcessive force claim against defendant Degroot; 5) defendants Nida and Macafee shall be dismissed from this action; 6) defendants Collins, Moates and Anderson are dismissed from this action, consistent with this order; 7) the motion to dismiss at Doc. No. 40 is denied without prejudice; 8) the m otions for issuance of subpoenas at Doc. Nos. 28 and 29 shall be denied. By October 2, 2018, plaintiff shall file an amended complaint upon court-supplied forms which describes the claims and defendants the court has permitted to continue in thi s action. Plaintiff is also directed not to file any further motions to amend or to supplement his pleadings until later notice from the court. The Clerk of the Court is directed to transmit complaint forms to plaintiff. Signed by U.S. District Senior Judge Sam A. Crow on 09/11/18. 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 additional screening,
pursuant to 28 U.S.C. § 1915A, in light of a Martinez report which
has recently been filed and plaintiff’s response to the report.
The court shall also rule upon some pending motions.
The court is mindful that:
“A Martinez report is treated like an affidavit,” Hall
v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991), and
“Martinez reports have been used in this circuit almost
exclusively
to
provide
the
court
preliminary
information,
furnished
by
prison
administration
personnel, in pro se cases brought by prisoners against
prison officials,” Ketchum v. Cruz, 961 F.2d 916, 920 n.
3 (10th Cir. 1992). Thus, a Martinez report ordinarily
is not a motion, much less a motion for summary judgment.
Dickey v. Merrick, 90 Fed.Appx. 535, 537 (10th Cir. 2003).
Tenth Circuit has further commented:
Generally, “the sufficiency of a complaint must rest on
its contents alone.” Gee v. Pacheco, 627 F.3d 1178, 1186
(10th Cir. 2010). While there are limited exceptions,
Martinez reports don't fall within those exceptions
“unless ‘the plaintiff challenges a prison's policies or
established procedures and the Martinez report's
1

The

description of the policies or procedures remains
undisputed after plaintiff has an opportunity to
respond.’” Id. (quoting Hall, 935 F.2d at 1112).
Winkel v. Hammond, 704 Fed.Appx. 735, 737 (10th Cir. 2017).

Thus,

in general, the court may not look to the Martinez report to
resolve a factual dispute.

Id., citing Swoboda v. Dubach, 992

F.2d 286, 290 (10th Cir. 1993).
I.

The complaint
The complaint alleges excessive force in Count One.

Two,

the

complaint

alleges

a

violation

of

the

In Count

Prison

Rape

Elimination Act, retaliation against plaintiff for exercising his
First Amendment rights, and the denial of disciplinary hearings in
violation of plaintiff’s Due Process rights.

Finally, in Count

Three, plaintiff alleges an unconstitutional policy which has
denied him adequate nourishment in violation of plaintiff’s Due
Process rights.
The complaint names the following persons as defendants:

Pat

Collins, a member of the Board of Commissioners of Cherokee County;
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
2

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 also lists the “Board of Commissioners” as a
defendant.

The court assumes plaintiff is suing the Board of

Commissioners of Cherokee County.
II. Previous orders
In previous orders, as to Count One, the court has dismissed
all defendants except defendant Smith.

As to Count Two, the court

has dismissed all claims except for plaintiff’s claims regarding
the denial of disciplinary hearings.
In the court’s first screening order, the court asked for a
Martinez report addressing plaintiff’s remaining claims in Count
Two (the denial of disciplinary hearings) and Count Three.
III. Additional Screening
The court employs the screening standards and pro se pleading
guidelines that the court summarized in the first screening order.
Doc. No. 13, pp. 1-3.
A. Count Two
In Count Two plaintiff alleges that he was illegally denied
“at least 5 disciplinary hearings.”

1

Doc. No. 1, p. 4.

The

Fourteenth Amendment’s Due Process Clause prohibits a pretrial
detainee from being punished without due process prior to a lawful

1

Plaintiff alleges a similar claim in Count One of Case No. 18-3092.
that appears to involve a different incident.

3

But,

conviction.

Peoples v. CCA Detention Centers, 422 F.3d 1090, 1106

(10th Cir. 2005)(citing Bell v. Wolfish, 441 U.S. 520, 535 (1970)).
A pretrial detainee, however, may be subjected to the conditions
and restrictions of incarceration so long as those conditions and
restrictions do not amount to punishment.2 Id.
Upon additional review of the complaint and consideration of
the

Martinez

report

and

plaintiff’s

response,

the

court

has

determined that plaintiff’s claim in Count Two regarding the denial
of disciplinary hearings should continue beyond the screening
stage.3
B. Count Three
In Count Three plaintiff alleges 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 alleges in this case and in Case

No. 18-3092 that his weight has dropped from 177 pounds on February
1, 2018 to 149 pounds or less in July 2018.

2

Contrary to the suggestion in the Martinez report, Doc. No. 39, p. 6, the
“atypical and significant hardship” test in Sandin v. Conner, 515 U.S. 472
(1995) does not apply to pretrial detainees. Peoples, 422 F.3d at 1106 n.12.
3 Plaintiff’s recovery for this alleged violation and other violations may be
limited by 42 U.S.C. § 1997e(e) which provides: “No Federal civil action may
be brought by a prisoner confined in a jail, prison, or other correctional
facility, for mental or emotional injury suffered while in custody without a
prior showing of physical injury or the commission of a sexual act.” Plaintiff
may still argue for nominal and punitive damages even if the prohibition in §
1997e(e) applies. Searles v. Van Bebber, 251 F.3d 869 (10th Cir. 2001)(reversing
compensatory damages award on a first amendment claim brought by prisoner, but
holding that nominal and punitive damages are not barred by the statute).

4

The Martinez report indicates that the jail staff follows the
recommendations of its contract health care provider, defendant
Kristen Wagner, who has at times ordered increased caloric intake
for plaintiff and who in 2018 has followed a protocol which ties
the allowance of a special diet to an inmate’s body mass index
(BMI).
A conditions of confinement claim by a pretrial detainee is
governed by the same standards as a conditions of confinement claim
by an inmate serving a sentence.

Ledbetter v. City of Topeka, 318

F.3d 1183, 1188 (10th Cir. 2003).

In general, a prisoner may

demonstrate a violation of the Eighth Amendment with respect to
conditions of confinement if he shows that he has been deprived of
“the minimal civilized measure of life’s necessities,” such as
food, clothing, shelter, sanitation, medical care, or personal
safety.

Farmer v. Brennan, 511 U.S. 825, 832 & 834 (1994).

The

prisoner must show that the conditions were so critical that they
posed a substantial risk of serious harm and that the defendants
acted

with

deliberate

indifference,

i.e.,

that

the

prison

officials knew of or disregarded a substantial risk of serious
harm by failing to take reasonable measures to abate it.

Id. at

847.
Plaintiff

has

made

allegations

from

which

one

could

reasonably infer that he has lost significant weight and that the
weight loss is linked to a lack of nutrition.
5

This together with

other

allegations

suggesting

knowledge

sufficient to state a § 1983 claim.
F.3d 891, 899 (8th Cir. 2016).

and

indifference

is

See Ingrassia v. Schafer, 825

The court finds that Count Three

should be permitted to proceed beyond the screening stage.
C.

Defendants Nida and Macafee

The court finds no allegations to support a claim against
defendants

Nida

and

Macafee.

Therefore,

plaintiff’s

claims

against these defendants shall be dismissed without prejudice.
D. Defendants Collins, Moates and Anderson
Plaintiff

sues

these

defendants

in

their

official capacities as county commissioners.

individual

and

These defendants can

only be personally liable if plaintiff pleads and proves: (1)
personal involvement, (2) sufficient causal connection, and (3)
culpable state of mind. Cox v. Glanz, 800 F.3d 1231, 1248–49 (10th
Cir. 2015).

Plaintiff alleges that he has written the Board of

County Commissioners numerous letters.
11; Doc. No. 42-1, p. 2.

Doc. No. 1, pp. 2, 6 and

It is unclear exactly what plaintiff

communicated to the commissioners or when he did so.

So, the

alleged facts do not plausibly demonstrate a culpable state of
mind.

Plaintiff

generally

supervision and discipline.

asserts

inadequate

training,

He further claims that the BMI policy

is unconstitutional. But, plaintiff does not allege specific facts
showing the individual defendants’ responsibilities for causing a
violation of plaintiff’s rights through the execution of certain
6

policies or a failure of supervision.

So, personal involvement

and causal connection are also not plausibly described.

The court

concludes that plaintiff’s claims lack sufficient factual detail
to state a plausible claim against Collins, Moates and Anderson in
their individual capacities.

The Court will allow plaintiff to

file an amended complaint re-alleging this claim, if and when he
has sufficient facts to do so.
The

official

capacity

claims

against

these

individual

defendants have the same legal effect as suing the Board of County
Commissioners.4

See Estate of Hammers v. Douglas County, Kansas

Board of County Commissioners, 303 F.Supp.3d 1134, 1146 (D.Kan.
2018).

Plaintiff has named the Board of County Commissioners as

a defendant.
K.S.A.

The Board is the suable entity of the county.

19-105.

It

is

superfluous

to

name

the

See

individual

commissioners in their official capacities, and therefore the
claims against defendants Collins, Moates and Anderson in their
official capacities shall be dismissed.
IV.

Motions to amend
There are five motions to amend pending before the court.

Doc. Nos. 18, 21, 33, 34 and 37.

The court shall deny the motions

4

Also, a suit against Sheriff Groves in his official capacity is the equivalent
of a suit against the Cherokee County Board of Commissioners. Sigg v. Allen
County, Kansas, 2016 WL 6716085 *7 (D.Kan. 11/15/2016); see also Layton v. Board
of County Com’rs of Oklahoma County, 512 Fed.Appx. 861, 871 (10th Cir.
2013)(County may be liable on basis of Sheriff’s actions as final policymaker
with regard to jail).

7

at Doc. Nos. 33 and 34 because they are duplicative of Doc. Nos.
18 and 21.5
At Doc. No. 18, plaintiff seeks to add Danny Davis and an
unnamed food provider for the Cherokee County Jail as defendants.
Plaintiff

asserts

that

they

are

responsible

nutritionally inadequate meals at the jail.
requires

that

inmates

receive

“’the

basic

for

providing

The Constitution
necessities

of

[nutritionally] adequate food.’” Trujillo v. Williams, 465 F.3d
1210, 1227–28 (10th Cir. 2006)(quoting Barney v. Pulsipher, 143
F.3d 1299, 1310 (10th Cir. 1998)).

The failure to provide an

adequate diet by a prison or jail employee or contractor with
deliberate indifference may state a claim under § 1983.

Id.

Plaintiff’s motion to amend is not in proper form as plaintiff
has been told previously.

See Doc. No. 31.

But, the court shall

treat the motion to amend as a motion to supplement the allegations
in

Count

Three.

As

such,

the

motion

shall

be

granted

and

defendants Davis and the unnamed food provider shall be added as
defendants.
Plaintiff’s motion also seeks to “add” defendants Groves,
Tippie, Collins, Moates and Anderson as defendants. These persons,
however, are already listed as defendants.

5

So, the court treats

Plaintiff has sent the court a letter (Doc. No. 38) suggesting that he has
sent motions which the court has not received. And, plaintiff states in Doc.
Nos. 33 and 34 that he has previously sent the same requests to amend.
Obviously, the court did receive the previous requests in Doc. Nos. 18 and 21.

8

plaintiff’s motion as merely clarifying his claim that these
persons are liable for the actions alleged in Count Three.
At Doc. No. 21, plaintiff seeks leave to amend the complaint
to add Dr. Johnathan Manzer and the Manzer Health Clinic as
defendants as to plaintiff’s malnourishment claims; to allege
medical neglect by defendant Wagner and the Manzer Health Clinic
in the treatment of a staph infection; and to claim that defendant
Wagner

intentionally

manipulated

the

weights

recorded

for

plaintiff. Again, this motion to amend is not in proper form as
plaintiff has been told previously.

But, the court shall treat

the motion to amend as a motion to supplement the allegations in
the complaint.

As such, the motion shall be granted and Dr.

Johnathan Manzer and the Manzer Health Clinic shall be added as
defendants.
In plaintiff’s motion for leave to amend complaint at Doc.
No. 37, plaintiff alleges an incident of excessive force involving
defendant Degroot.

This is another instance where the motion to

amend is not in proper form.

But, the court shall treat the motion

to

supplement

amend

complaint.

as

a

motion

to

the

allegations

in

the

Plaintiff’s motion indicates that he seeks to sue

defendants Anderson, Collins, Moates, Groves and Tippie for some
role in the excessive force event.

Plaintiff, however, fails to

plausibly allege facts describing an affirmative link between
these

persons

and

the

alleged
9

incident

of

excessive

force.

Accordingly, at this stage, the court shall not consider defendants
Anderson, Collins, Moates, Groves and Tippie as part of the
excessive force claim plaintiff describes in Doc. No. 37.
V. Motion to dismiss
The motion to dismiss (Doc. No. 40) filed on behalf of the
Board of County Commissioners and the individual commissioners in
their individual and official capacities is largely moot by reason
of the court’s holdings in part III(d) of this order.

To the

extent the motion argues for the dismissal of the Board of County
Commissioners, the motion is denied without prejudice.

At this

stage it is plausible, for instance, that plaintiff’s surviving
claims could lead to injunctive relief against the Board.
VI. Motions for issuance of subpoenas
Plaintiff has filed two hand-written subpoenas duces tecum
(Doc. Nos. 28 and 29) which have been docketed as motions for
issuance of subpoenas.

The proposed subpoenas do not comply with

Fed.R.Civ.P. 45(a)(1)(A)(iv) or 45(a)(2), (3) and (4).

The effort

to begin discovery at this stage also seems premature because the
court has not authorized issuance of summons in this case or
initiated the supervision of discovery.

Therefore, the motions

for issuance of subpoenas shall be denied.
VII. Conclusion
In conclusion, the court directs the following:

10

1) the motions to amend at Doc. Nos. 33 and 34 are denied
as duplicative;
2) the motion to amend at Doc. No. 18, treated as a
motion to supplement, shall be granted in part, adding
as defendants Danny Davis and an unnamed food provider
with regard to Count Three;6
3) the motion to amend a Doc. No. 21, treated as a motion
to supplement, shall be granted, adding Dr. Johnathan
Manzer and the Manzer Health Clinic as defendants as to
Count Three, and adding a separate claim against
defendants Wagner and the Manzer Health Clinic as to the
treatment of a staph infection;
4) the motion to amend at Doc. No. 37, treated as a
motion to supplement shall be granted in part, adding an
excessive force claim against defendant Degroot;
5) defendants Nida and Macafee shall be dismissed from
this action;
6) defendants Collins, Moates and Anderson are dismissed
from this action, consistent with this order;
7) the motion to dismiss at Doc. No. 40 is denied without
prejudice;
8) the motions for issuance of subpoenas at Doc. Nos. 28
and 29 shall be denied.
Finally, by October 2, 2018 plaintiff shall file an amended
complaint upon court-supplied forms which describes the claims and
defendants the court has permitted to continue in this action.
This is intended to bring more order and clarity to the litigation
so that an answer or response may be more easily filed.

Plaintiff

is also directed not to file any further motions to amend or to
supplement his pleadings until later notice from the court.

6

The

Plaintiff is responsible for determining the name of the unknown defendant
and amending the complaint to add the named defendant.

11

Clerk of the Court is directed to transmit complaint forms to
plaintiff.
IT IS SO ORDERED.
Dated this 11th day of September, 2018, at Topeka, Kansas.

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

12