Letterman v. Sedgwick County Jail et al
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,
Case No. 20-3138-SAC
(fnu) ROY, et al.,
O R D E R
Plaintiff, pro se, has filed this action with claims arising
from his incarceration at the Sedgwick County Jail.
to a show cause order from the court (Doc. No. 9), plaintiff has
supplement” the amended complaint (Doc. No. 11).
This case is
before the court for further screening pursuant to 28 U.S.C. §
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
movement from the cell.
The “motion to supplement” seeks to add
four counts to the amended complaint.
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.
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
Plaintiff alleges that his due process rights were violated
and names the “head” district attorney as a defendant.
in Count 5, plaintiff alleges a claim of defamation or slander
against Brian White, the warden at the Sedgwick County Adult
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
II. Count 2
As discussed in the first screening order (Doc. No. 9 at pp.
plaintiff has recourse under state law to bring a claim to recover
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
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.
that Hess “& staff” failed to give plaintiff’s property to his
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
See Walker v. Mohiuddin, 947 F.3d 1244, 1249 (10th Cir.
2020); Robbins v. State of Oklahoma, 519 F.3d 1242, 1250 (10th Cir.
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
allegations also fail to show that Sgt. Harvey, the “head district
plaintiff from work release.
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.
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.
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.
attorney [is] not required to extend one or keep an offer open.”
Williams v. Jones, 571 F.3d 1086, 1091 (10th Cir. 2009).
causing the loss of an unexecuted plea deal does not deny a
defendant a liberty or property interest triggering due process
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.
Plaintiff names the warden of the Sedgwick County
apparently because he is “in charge of jail functions.”
supervisory position, however, is not sufficient in itself to
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
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.
has failed to state a plausible claim for relief.
VI. Improper joinder
different defendants than Count 1.2
Under Rule 20(a)(2), the
joinder of several defendants is permissible if the right to relief
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
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.
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).
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
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
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).
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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