Letterman v. Sedgwick County Jail et al

Filing 12

ORDER ENTERED: The motion to supplement (Doc. No. 11 ) shall be granted, but the counts added to the amended complaint (Counts 2-5) shall be dismissed for failure to state a claim. The court shall direct the Clerk to prepare waiver of service forms pursuant to Rule 4(d) of the Federal Rules of Civil Procedure to be served upon defendants Roy, Tucker, LaDora and Harvey. These are the remaining defendants in this case. Plaintiff shall be assessed no costs absent a finding by the court that plai ntiff is able to pay such costs. Plaintiff has the primary responsibility to provide sufficient name and address information for the waiver of service forms or for the service of summons and complaint upon a defendant. Plaintiff is warned that if w aiver of service forms or summons cannot be served because of the lack of name and address information, and correct address information is not supplied to the Clerk of the Court, ultimately the unserved parties may be dismissed from this action. Signed by U.S. District Senior Judge Sam A. Crow on 09/08/20. Mailed to pro se party Terry P. Letterman by regular mail. (smnd)

Case 5:20-cv-03138-SAC Document 12 Filed 09/08/20 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TERRY P. LETTERMAN,
Plaintiff,
vs.

Case No. 20-3138-SAC

(fnu) ROY, et al.,
Defendants.

O R D E R
Plaintiff, pro se, has filed this action with claims arising
from his incarceration at the Sedgwick County Jail.

In response

to a show cause order from the court (Doc. No. 9), plaintiff has
filed

an

amended

complaint

(Doc.

No.

10)

and

supplement” the amended complaint (Doc. No. 11).

a

“motion

to

This case is

before the court for further screening pursuant to 28 U.S.C. §
1915A.

The court applies the same standards set forth in Doc. No.

9 at pp. 1-4.
I. Amended complaint and motion to supplement
Count 1 of the amended complaint alleges that defendants (fnu)
Roy, (fnu) Delora, (fnu) Tucker and (fnu) Harvey failed to protect
plaintiff from being assaulted by plaintiff’s cellmate in spite of
plaintiff’s

urgent

communications

movement from the cell.

requesting

protection

or

The “motion to supplement” seeks to add

four counts to the amended complaint.
1

Count 2 alleges that

Case 5:20-cv-03138-SAC Document 12 Filed 09/08/20 Page 2 of 7

Elizabeth Hess, a community corrections residential counsel “and
staff” failed to give plaintiff’s stepfather property belonging to
plaintiff. Apparently, this property is now lost. Count 3 alleges
that plaintiff was “rolled” from community corrections residential
custody into jail custody without good cause.

Plaintiff names

Judge Chris Magana, the “head” district attorney, and defendant
Harvey as defendants in Count 3.

Count 4 alleges that a plea deal

for plaintiff was taken off the table after he was assaulted in
jail.

Plaintiff alleges that his due process rights were violated

and names the “head” district attorney as a defendant.

Finally,

in Count 5, plaintiff alleges a claim of defamation or slander
against Brian White, the warden at the Sedgwick County Adult
Detention Center.

Plaintiff alleges that his charges show “poss

of firearm” when actually he was caught with a machete.
The court will permit the amended complaint to be supplemented
or amended,1 but will dismiss Counts 2 through 5 for the reasons
that follow.
II. Count 2
As discussed in the first screening order (Doc. No. 9 at pp.
7-8),

plaintiff’s

constitutional

loss

violation

of
for

property
a

due

claim
process

does

not

violation

state

a

because

plaintiff has recourse under state law to bring a claim to recover

1

The motion to supplement was filed before the deadline for plaintiff to
respond to the court’s show cause order or alternatively file a motion to
amend.

2

Case 5:20-cv-03138-SAC Document 12 Filed 09/08/20 Page 3 of 7

the property or damages.

In addition, plaintiff has failed to

state a claim in Count 2 because plaintiff does not specifically
allege what Elizabeth Hess did to violate his rights.

He alleges

that Hess “& staff” failed to give plaintiff’s property to his
stepfather.

This assertion of collective responsibility fails to

adequately allege a claim for relief against a specific defendant
or show that Hess did something to cause plaintiff’s loss of
property.

See Walker v. Mohiuddin, 947 F.3d 1244, 1249 (10th Cir.

2020); Robbins v. State of Oklahoma, 519 F.3d 1242, 1250 (10th Cir.
2008).
III. Count 3
In the first screening order (Doc. No. 9 at pp. 6-7), the
court cited case authority showing that plaintiff did not have a
liberty interest in a work release program which would support
plaintiff’s

claim

of

a

due

process

violation.

Plaintiff’s

allegations also fail to show that Sgt. Harvey, the “head district
attorney”,

or

Judge

Magana

plaintiff from work release.

took

specific

actions

to

remove

Plaintiff only alleges that he “e-

kited” Sgt. Harvey to get in touch with the district attorney’s
office, but Sgt. Harvey refused.

For these reasons, Count 3 fails

to state a plausible claim.

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Case 5:20-cv-03138-SAC Document 12 Filed 09/08/20 Page 4 of 7

IV. Count 4
Plaintiff alleges in Count 4 that a plea deal was withdrawn
without reason after plaintiff was assaulted in prison.

Plaintiff

claims that this violated his right to due process.
Plaintiff names the “head District Attorney” as a defendant
but fails to allege facts showing that the head District Attorney
did anything to cause the plea deal to be withdrawn.
“plea

offers

are

discretionary

and

[an]

assistant

Moreover,
district

attorney [is] not required to extend one or keep an offer open.”
Williams v. Jones, 571 F.3d 1086, 1091 (10th Cir. 2009).

An action

causing the loss of an unexecuted plea deal does not deny a
defendant a liberty or property interest triggering due process
protections.

See Duque v. Curry County Manager, 2011 WL 13290277

(D.N.Mex. 1/27/2011)(transfer from New Mexico detention center to
Texas causing loss of plea deal with New Mexico prosecutors does
not support a § 1983 claim).

Therefore, Count 4 fails to state a

plausible claim for relief.
V. Count 5
In Count 5, plaintiff alleges that he was defamed because his
“charges” show “poss of firearm” when he was caught with a machete,
not a firearm.
Detention

Plaintiff names the warden of the Sedgwick County

Center,

Brian

White,

as

a

defendant

for

apparently because he is “in charge of jail functions.”

Count

5

White’s

supervisory position, however, is not sufficient in itself to
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Case 5:20-cv-03138-SAC Document 12 Filed 09/08/20 Page 5 of 7

support a claim that he was responsible for the alleged defamatory
statement.

See Schneider v. City of Grand Junction Police Dept.,

717 F.3d 760, 767-68 (10th Cir. 2013); Porro v. Barnes, 624 F.3d
1322, 1327 (10th Cir. 2010).

Plaintiff has failed to allege facts

describing an affirmative link between the alleged defamation and
an action or omission by defendant White.

Therefore, plaintiff

has failed to state a plausible claim for relief.
VI. Improper joinder
Counts
improperly

2-5
joined

also
with

should
Count

be

dismissed

1.

Counts

different defendants than Count 1.2

because

2-5

they

largely

are

concern

Under Rule 20(a)(2), the

joinder of several defendants is permissible if the right to relief
asserted

against

them

arises

out

of

the

same

transaction,

occurrence or series of transactions or occurrences; and a question
of law or fact common to all defendants will arise in the action.
Here, plaintiff is attempting to join different actions raising
different factual and legal issues against different parties.
These unrelated claims should not be joined.

See Smith v. Kirby,

53 Fed. Appx. 14, 16 (10th Cir. Dec. 9, 2002)(finding no abuse of
discretion where district court denied leave to amend or supplement
the complaint where the “new claims were not relevant to the claims
before that court....”)); see also, McLemore v. Saline County

2

Sgt. Harvey is mentioned in Count 1 and Count 3, but his alleged actions in
Count 3 are clearly an inadequate basis for a claim.

5

Case 5:20-cv-03138-SAC Document 12 Filed 09/08/20 Page 6 of 7

Sheriff’s Office, 2016 WL 3522048 *3-5 (D.Kan. 6/28/2016)(denying
joinder of claims not related to original complaint brought by a
county jail inmate); Harvey v. Rohling, 2011 WL 4585256 *7 (D.Kan.
9/12/2011)(denying joinder of disciplinary claims to other claims
arising from prisoner’s confinement).
VII. Conclusion
For the above-stated reasons, the motion to supplement (Doc.
No. 11) shall be granted, but the counts added to the amended
complaint (Counts 2-5) shall be dismissed for failure to state a
claim.

The court shall direct the Clerk to prepare waiver of

service forms pursuant to Rule 4(d) of the Federal Rules of Civil
Procedure to be served upon defendants Roy, Tucker, LaDora and
Harvey.

These

are

the

remaining

defendants

in

this

case.

Plaintiff shall be assessed no costs absent a finding by the court
that plaintiff is able to pay such costs. Plaintiff has the primary
responsibility to provide sufficient name and address information
for the waiver of service forms or for the service of summons and
complaint upon a defendant. See Nichols v. Schmidling, 2012 WL
10350 *1 (D. Kan. 1/3/2012); Leek v. Thomas, 2009 WL 2876352 *1
(D. Kan. 9/2/2009). So, plaintiff is warned that if waiver of
service forms or summons cannot be served because of the lack of
name and address information, and correct address information is
not supplied to the Clerk of the Court, ultimately the unserved
parties may be dismissed from this action. See FED.R.CIV.P. 4(m).
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Case 5:20-cv-03138-SAC Document 12 Filed 09/08/20 Page 7 of 7

IT IS SO ORDERED.
Dated this 8th day of September, 2020, at Topeka, Kansas.

s/Sam A. Crow__________________________
U.S. District Senior Judge

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