Trotter (ID 79061) v. Cline et al

Filing 5

MEMORANDUM AND ORDER ENTERED: Plaintiff's Motion for Appointment of Counsel (Doc. #3 ) is denied without prejudice. Plaintiff is granted until October 26, 2020, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why Plaintiff's Complaint should not be dismissed. Plaintiff is also granted until October 26, 2020, in which to file a complete and proper amended complaint to cure all the deficiencies. Signed by U.S. Senior District Judge Sam A. Crow on 09/24/20. Mailed to pro se party Eric LaMont Trotter by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ERIC LaMONT TROTTER,
Plaintiff,
v.

CASE NO. 20-3230-SAC

SAM CLINE, et al.,
Defendants.

MEMORANDUM AND ORDER
AND ORDER TO SHOW CAUSE
Plaintiff Eric LaMont Trotter is hereby required to show good cause, in writing, to the
Honorable Sam A. Crow, United States District Judge, why this action should not be dismissed
due to the deficiencies in Plaintiff’s Complaint that are discussed herein. Plaintiff is also given
an opportunity to file a proper amended complaint to cure the deficiencies.
I. Nature of the Matter before the Court
Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is
incarcerated at the El Dorado Correctional Facility in El Dorado, Kansas (“EDCF”). The Court
granted Plaintiff leave to proceed in forma pauperis.
Plaintiff alleges that the prison failed to keep him safe after potential danger was
reported.

Plaintiff reported his concerns to Corrections Counselor Marlene Brooks, who

forwarded Plaintiff’s concerns to E.A.I. and knew there was a substantial risk of Plaintiff being
seriously harmed. Plaintiff was placed at EDCF despite the report. E.A.I. failed to protect
Plaintiff and to follow-up to make sure Plaintiff was placed where harm could not be done.
Plaintiff was attacked twice in two weeks in his cell and in the gym. Plaintiff was attacked with

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padlocks causing severe head injuries.
Plaintiff names as defendants: Sam Cline, Warden at EDCF; EDCF; E.A.I.; and
Classification. Plaintiff seeks monetary damages.
II. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or an officer or an employee of a governmental entity. 28 U.S.C.
§ 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised
claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be
granted, or that seek monetary relief from a defendant who is immune from such relief. 28
U.S.C. § 1915A(b)(1)–(2).
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988)
(citations omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). A court
liberally construes a pro se complaint and applies “less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). In addition, the court accepts
all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th
Cir. 2006). On the other hand, “when the allegations in a complaint, however true, could not
raise a claim of entitlement to relief,” dismissal is appropriate. Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 558 (2007).
A pro se litigant’s “conclusory allegations without supporting factual averments are
insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to

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relief’ requires “more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action.” Twombly, 550 U.S. at 555 (citations omitted). The complaint’s “factual
allegations must be enough to raise a right to relief above the speculative level” and “to state a
claim to relief that is plausible on its face.” Id. at 555, 570.
The Tenth Circuit Court of Appeals has explained “that, to state a claim in federal court,
a complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant
did it; how the defendant’s action harmed [the plaintiff]; and, what specific legal right the
plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d
1158, 1163 (10th Cir. 2007). The court “will not supply additional factual allegations to round
out a plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.” Whitney v. New
Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citation omitted).
The Tenth Circuit has pointed out that the Supreme Court’s decisions in Twombly and
Erickson gave rise to a new standard of review for § 1915(e)(2)(B)(ii) dismissals. See Kay v.
Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (citations omitted); see also Smith v. United States,
561 F.3d 1090, 1098 (10th Cir. 2009). As a result, courts “look to the specific allegations in the
complaint to determine whether they plausibly support a legal claim for relief.” Kay, 500 F.3d at
1218 (citation omitted). Under this new standard, “a plaintiff must ‘nudge his claims across the
line from conceivable to plausible.’” Smith, 561 F.3d at 1098 (citation omitted). “Plausible” in
this context does not mean “likely to be true,” but rather refers “to the scope of the allegations in
a complaint: if they are so general that they encompass a wide swath of conduct, much of it
innocent,” then the plaintiff has not “nudged [his] claims across the line from conceivable to
plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S.
Ct. at 1974).

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III. DISCUSSION
1. Failure to Protect
Plaintiff asserts that the Defendants failed to protect him by housing him at EDCF.
“Under the Eighth Amendment, prison officials have a duty to ‘provide humane conditions of
confinement,’ including ‘tak[ing] reasonable measures to guarantee the safety of . . . inmates.’”
Requena v. Roberts, 893 F.3d 1195, 1214 (10th Cir. 2018), cert. denied, 139 S. Ct. 800 (2019)
(quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation marks omitted)). This duty
includes “a duty to protect prisoners from violence at the hands of other prisoners.” Farmer, 511
U.S. at 833 (ellipsis and quotation marks omitted). To prevail on a failure to protect claim, a
plaintiff must show: “(1) ‘that the conditions of his incarceration present an objective substantial
risk of serious harm’ and (2) ‘prison officials had subjective knowledge of the risk of harm,’ ‘[i]n
other words, an official must both be aware of the facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference.’” Requena,
893 F.3d at 1214 (citation omitted).
“The unfortunate reality is that threats between inmates are common and do not, under all
circumstances, serve to impute actual knowledge of a substantial risk of harm.” Turner v. Okla.
Cty. Bd. of Cty. Comm’rs, 804 F. App’x 921, 926 (10th Cir. 2020) (unpublished) (citing Marbury
v. Warden, 936 F.3d 1227, 1236 (11th Cir. 2019) (per curiam) (internal quotation marks
omitted); Prater v. Dahm, 89 F.3d 538, 541 (8th Cir. 1996) (same)). “[S]ubjective awareness of
only some risk of harm to a prisoner is insufficient for a deliberate-indifference claim.” Id.
(citing Marbury, 936 F.3d at 1238). Rather, “officials must possess enough details about a threat
to enable them to conclude that it presents a strong likelihood of injury, not a mere possibility.”
Id. (citing Marbury, 936 at 1236 (internal quotation marks omitted)).

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Plaintiff alleges that the prison failed to protect him but fails to include any facts as to
what potential harm he relayed to Brooks, when he relayed the information, who was responsible
for his assignment, or when the attacks occurred. See Gray v. Sorrels, 744 F. App’x 563, 571
(10th Cir. 2018) (unpublished) (finding allegations of failure to protect too conclusory to
establish personal participation and failed to allege specific content of emails); see also Leonard
v. Lincoln Cty. Bd. of Comm’rs, 790 F. App’x 891, 894 (10th Cir. 2019) (unpublished) (finding
plaintiff’s general request and grievance did not put jail officials on notice that he was at risk of
being assaulted). Plaintiff should show good cause why is claim should not be dismissed for
failure to state a claim. Plaintiff should provide additional factual support in any amended
complaint that he files.
2. Detention Facility
Plaintiff names the EDCF as a defendant. “To state a claim under § 1983, a plaintiff
must allege the violation of a right secured by the Constitution and laws of the United States, and
must show that the alleged deprivation was committed by a person acting under color of state
law.” West v. Atkins, 487 U.S. 42, 48 (1988) (emphasis added). Prison and jail facilities are not
proper defendants because none is a “person” subject to suit for money damages under § 1983.
See Will v. Michigan Dept. of State Police, 491 U.S. 58, 66, 71 (1989); Clark v. Anderson,
No. 09-3141-SAC, 2009 WL 2355501, at *1 (D. Kan. July 29, 2009); see also Aston v.
Cunningham, No. 99–4156, 2000 WL 796086 at *4 n.3 (10th Cir. Jun. 21, 2000) (“a detention
facility is not a person or legally created entity capable of being sued”); Busekros v. Iscon,
No. 95-3277-GTV, 1995 WL 462241, at *1 (D. Kan. July 18, 1995) (“[T]he Reno County Jail
must be dismissed, as a jail is not a ‘person’ within the meaning of § 1983.”). Plaintiff’s claims
against the EDCF are subject to dismissal.

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Plaintiff also names “Classification” and “E.A.I.” as defendants. Neither is a “person”
capable of being sued under § 1983. Plaintiff must name an individual defendant and specify
what that person did to violate his constitutional rights.
3. Personal Participation
Plaintiff names Warden Cline as a defendant. Plaintiff has failed to allege how the
Warden personally participated in the deprivation of his constitutional rights, and appears to rely
on the supervisory status of the Warden. An essential element of a civil rights claim against an
individual is that person’s direct personal participation in the acts or inactions upon which the
complaint is based. Kentucky v. Graham, 473 U.S. 159, 165–66 (1985); Trujillo v. Williams, 465
F.3d 1210, 1227 (10th Cir. 2006); Foote v. Spiegel, 118 F.3d 1416, 1423–24 (10th Cir. 1997).
Conclusory allegations of involvement are not sufficient. See Ashcroft v. Iqbal, 556 U.S. 662,
676 (2009) (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead
that each Government-official defendant, through the official’s own individual actions, has
violated the Constitution.”). As a result, a plaintiff is required to name each defendant not only
in the caption of the complaint, but again in the body of the complaint and to include in the body
a description of the acts taken by each defendant that violated plaintiff’s federal constitutional
rights.
Mere supervisory status is insufficient to create personal liability. Duffield v. Jackson,
545 F.3d 1234, 1239 (10th Cir. 2008) (supervisor status is not sufficient to create § 1983
liability). An official’s liability may not be predicated solely upon a theory of respondeat
superior. Rizzo v. Goode, 423 U.S. 362, 371 (1976); Gagan v. Norton, 35 F.3d 1473, 1476 FN4
(10th Cir. 1994), cert. denied, 513 U.S. 1183 (1995). A plaintiff alleging supervisory liability
must show “(1) the defendant promulgated, created, implemented or possessed responsibility for

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the continued operation of a policy that (2) caused the complained of constitutional harm, and (3)
acted with the state of mind required to establish the alleged constitutional deprivation.” Dodds
v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010), cert. denied, 563 U.S. 960 (2011). “[T]he
factors necessary to establish a [supervisor’s] § 1983 violation depend upon the constitutional
provision at issue, including the state of mind required to establish a violation of that provision.”
Id. at 1204 (citing Iqbal, 129 S. Ct. at 1949). Plaintiff’s claims against Warden Cline are subject
to dismissal.
4. Classification
To the extent Plaintiff alleges that his classification was unconstitutional, he fails to state
a claim for relief. Plaintiff does not have a constitutional right to dictate where he is housed,
whether it is which facility or which classification within a facility. See Schell v. Evans, 550 F.
App’x 553, 557 (10th Cir. 2013) (citing Meachum, 427 U.S. at 228–29; Cardoso v. Calbone, 490
F.3d 1194, 1197–98 (10th Cir. 2007). Moreover, jail officials are entitled to great deference in
the internal operation and administration of the facility. See Bell v. Wolfish, 441 U.S. 520, 547–
48 (1979). Plaintiff’s claims regarding his security classification are subject to dismissal for
failure to state a claim.
IV. Motion to Appoint Counsel
Plaintiff has filed a Motion for Appointment of Counsel (Doc. 3). Plaintiff argues that he
is indigent, has no family support, he has been in segregation for months, and his injuries could
have been prevented.
The Court has considered Plaintiff’s motion for appointment of counsel. There is no
constitutional right to appointment of counsel in a civil case. Durre v. Dempsey, 869 F.2d 543,
547 (10th Cir. 1989); Carper v. DeLand, 54 F.3d 613, 616 (10th Cir. 1995). The decision

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whether to appoint counsel in a civil matter lies in the discretion of the district court. Williams v.
Meese, 926 F.2d 994, 996 (10th Cir. 1991). “The burden is on the applicant to convince the
court that there is sufficient merit to his claim to warrant the appointment of counsel.” Steffey v.
Orman, 461 F.3d 1218, 1223 (10th Cir. 2006) (quoting Hill v. SmithKline Beecham Corp., 393
F.3d 1111, 1115 (10th Cir. 2004)). It is not enough “that having counsel appointed would have
assisted [the prisoner] in presenting his strongest possible case, [as] the same could be said in
any case.” Steffey, 461 F.3d at 1223 (quoting Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir.
1995)).
In deciding whether to appoint counsel, courts must evaluate “the merits of a prisoner’s
claims, the nature and complexity of the factual and legal issues, and the prisoner’s ability to
investigate the facts and present his claims.” Hill, 393 F.3d at 1115 (citing Rucks, 57 F.3d at
979). The Court concludes in this case that (1) it is not clear at this juncture that Plaintiff has
asserted a colorable claim against a named defendant; (2) the issues are not complex; and (3)
Plaintiff appears capable of adequately presenting facts and arguments. The Court denies the
motion without prejudice to refiling the motion if Plaintiff’s Complaint survives screening.
V. Response and/or Amended Complaint Required
Plaintiff is required to show good cause why his Complaint should not be dismissed for
the reasons stated herein. Plaintiff is also given the opportunity to file a complete and proper
amended complaint upon court-approved forms that cures all the deficiencies discussed herein.1

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To add claims, significant factual allegations, or change defendants, a plaintiff must submit a complete amended
complaint. See Fed. R. Civ. P. 15. An amended complaint is not simply an addendum to the original complaint, and
instead completely supersedes it. Therefore, any claims or allegations not included in the amended complaint are no
longer before the court. It follows that a plaintiff may not simply refer to an earlier pleading, and the amended
complaint must contain all allegations and claims that a plaintiff intends to pursue in the action, including those to
be retained from the original complaint. Plaintiff must write the number of this case (20-3230-SAC) at the top of the
first page of his amended complaint and he must name every defendant in the caption of the amended complaint.
See Fed. R. Civ. P. 10(a). Plaintiff should also refer to each defendant again in the body of the amended complaint,
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Plaintiff is given time to file a complete and proper amended complaint in which he (1) raises
only properly joined claims and defendants; (2) alleges sufficient facts to state a claim for a
federal constitutional violation and show a cause of action in federal court; and (3) alleges
sufficient facts to show personal participation by each named defendant.
If Plaintiff does not file an amended complaint within the prescribed time that cures all
the deficiencies discussed herein, this matter will be decided based upon the current deficient
Complaint and may be dismissed without further notice for failure to state a claim.
IT IS THEREFORE ORDERED THAT Plaintiff’s Motion for Appointment of
Counsel (Doc. 3) is denied without prejudice.
IT IS FURTHER ORDERED that Plaintiff is granted until October 26, 2020, in which
to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge,
why Plaintiff’s Complaint should not be dismissed for the reasons stated herein.
IT IS FURTHER ORDERED that Plaintiff is also granted until October 26, 2020, in
which to file a complete and proper amended complaint to cure all the deficiencies discussed
herein.
The clerk is directed to send § 1983 forms and instructions to Plaintiff.
IT IS SO ORDERED.
Dated September 24, 2020, in Topeka, Kansas.

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

where he must allege facts describing the unconstitutional acts taken by each defendant including dates, locations,
and circumstances. Plaintiff must allege sufficient additional facts to show a federal constitutional violation.

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