Kidwell v. Hayden et al

Filing 5

NOTICE AND ORDER TO SHOW CAUSE ENTERED: On or before November 3, 2020, plaintiff shall show cause why this matter should not be dismissed. Plaintiff is granted to and including November 3, 2020, to file an amended complaint to cure the deficiencies identified in this order. The clerk of the court shall transmit a form pleading and instructions to plaintiff. Signed by U.S. Senior District Judge Sam A. Crow on 10/13/20. Mailed to pro se party Ronald Lee Kidwell by regular mail. (smnd)

Case 5:20-cv-03238-SAC Document 5 Filed 10/13/20 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

RONALD LEE KIDWELL,
Plaintiff,
v.

CASE NO. 20-3238-SAC

CALVIN H. HAYDEN, et al.,
Defendants.

NOTICE AND ORDER TO SHOW CAUSE
This matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff, a pretrial detainee, proceeds pro se and in forma
pauperis.
Nature of the Complaint
Plaintiff brings this action against Sheriff Calvin H. Hayden,
Undersheriff Douglas Bedford, and the Johnson County Adult Detention
Center (JCADC). He alleges an invasion of property, a claim the court
liberally construes to allege a violation of his privacy. Plaintiff
specifically objects to the presence of surveillance cameras in his
cell which allow him to viewed while using the shower and toilet. He
alleges mental injury and seeks damages.
Screening
A federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental entity or an
officer or employee of such an entity. See 28 U.S.C. §1915A(a).
Following this review, the court must dismiss any portion of the
complaint that is frivolous, malicious, fails to state a claim upon
which relief may be granted, or seeks monetary damages from a defendant
who is immune from that relief. See 28 U.S.C. § 1915A(b).

Case 5:20-cv-03238-SAC Document 5 Filed 10/13/20 Page 2 of 7

In screening, a court liberally construes pleadings filed by a
party proceeding pro se and applies “less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S.
89, 94 (2007).
“To state a claim for relief under Section 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).
To avoid a dismissal for failure to state a claim, a complaint
must set out factual allegations that “raise a right to relief above
the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007). The court accepts the well-pleaded allegations in the
complaint as true and construes them in the light most favorable to
the plaintiff. Id. However, “when the allegations in a complaint,
however true, could not raise a [plausible] claim of entitlement to
relief,” the matter should be dismissed. Id. at 558. A court need not
accept “[t]hreadbare recitals of the elements of a cause of action
supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Rather, “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 Tenth Circuit has observed that the U.S. Supreme Court’s
decisions in Twombly and Erickson set out a new standard of review
for dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii). See Kay v. Bemis,

Case 5:20-cv-03238-SAC Document 5 Filed 10/13/20 Page 3 of 7

500 F.3d 1214, 1218 (10th Cir. 2007)(citations omitted). Following
those decisions, 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 (quotation marks and internal
citations omitted). A plaintiff “must nudge his claims across the line
from conceivable to plausible.” Smith v. United States, 561 F.3d 1090,
1098 (10th Cir. 2009). In this context, “plausible” 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 [the] claims across the line from
conceivable to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247
(10th Cir. 2008)(citing Twombly, 550 U.S. at 1974).
Discussion
The detention center is not a proper defendant
Plaintiff names the JCADC 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). As a governmental
sub-unit, a prison or jail cannot sue or be sued because such an entity
is not a “person” subject to suit for monetary damages under § 1983.
See Will v. Michigan Dept. of State Police, 491 U.S. 58, 66, 71 (1989).
Therefore, such a defendant is subject to dismissal. See Hinton v.
Dennis,

362

F.

App’x

2010)(unpublished)(“generally,

904,
governmental

907

(10th

sub-units

Cir.
are

not

separable suable entities that may be sued under § 1983”) and Aston
v.

Cunningham,

2000

WL

796086,

*4

n.3

(10th

Cir.

June

21,

2000)(unpublished)(stating that jail would be dismissed “because a

Case 5:20-cv-03238-SAC Document 5 Filed 10/13/20 Page 4 of 7

detention facility is not a person or legally created entity capable
of being sued”). Accordingly, plaintiff’s claims against the JCADC
are subject to dismissal.
Personal participation
Plaintiff has failed to allege how the remaining defendants,
Sheriff Hayden and Undersheriff Bedford, personally participated in
the violation of his constitutional rights. An essential element of
a civil rights claim against an individual defendant is that person’s
direct involvement in the acts or omissions 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). Bare claims of a
defendant’s involvement are not sufficient to state a claim for
relief. See Ashcroft v. Iqbal, 556 at 676 (“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.”). Therefore, a
plaintiff must name each defendant not only in the caption of the
complaint, but also in the body of the complaint and to include a
description of the specific acts taken by each defendant that violated
plaintiff’s federal constitutional rights.
Plaintiff makes no specific claims about how defendants Hayden
and Bedford violated his rights, and it appears his claims may rest
on their supervisory status. However, mere supervisory status is
insufficient to create personal liability. Duffield v. Jackson, 545
F.3d 1234, 1239 (10th Cir. 2008)(supervisory status is not sufficient
to support liability under § 1983). Likewise, a defendant’s liability
cannot be based solely upon a theory of respondeat superior. Rizzo
v. Goode, 423 U.S. 362, 471 (1976); Gagan v. Norton, 35 F.3d 1473,

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1476 (10th Cir. 1994), cert. denied, 513 U.S. 1183 (1995). Rather, a
plaintiff alleging supervisory liability must show “(1) the defendant
promulgated, created, implemented or possessed responsibility for 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).

Because plaintiff has not made any

specific

allegations of acts or omissions by defendants Hayden and Bedford,
his claims against them are subject to dismissal.
Request for monetary damages
As relief, plaintiff seeks monetary damages. This request is
barred because he does not allege any physical injury. Under 42 U.S.C.
§ 1997e(e), “[n]o 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.” 42 U.S.C. § 1997e(e).
Pretrial conditions of confinement
Claims concerning the conditions of confinement of a pretrial
detainee are analyzed under the Due Process Clause of the Fourteenth
Amendment. See Rife v. Okla. Dep't of Pub. Safety, 854 F.3d 637, 647
(10th Cir.), cert. denied sub nom. Dale v. Rife, 138 S. Ct. 364 (2017).
Under this analysis, “[a] court must decide whether the disability
is imposed for the purpose of punishment or whether it is but an
incident of some other legitimate governmental purpose.” Colbruno v.
Kessler, 928 F.3d 1155, 1162 (10th Cir. 2019)(quoting Bell v. Wolfish,
441 U.S. 520, 535 (1979)). A pretrial detainee may be subjected “to the
restrictions and conditions of the detention facility so long as those

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conditions and restrictions do not amount to punishment, or otherwise
violate the Constitution.” Routt v. Howard, 764 F. App'x 762, 768 (10th
Cir. 2019)(quoting Bell, 441 U.S. at 536-37).
Plaintiff’s claim concerning the presence of cameras arose
during his disciplinary segregation while he was held in “close
observation” status. The use of cameras for surveillance did not
expose plaintiff unnecessarily to view, nor do his allegations
reasonably suggest that the surveillance used was punitive rather than
a reasonable means of maintaining security. See, e.g., Garrett v.
Thaler, 560 F. App'x 375, 380-81 (5th Cir. 2014)(upholding decision
that cameras in restroom, shower and dressing areas of state prison
did not violate Fourth Amendment). The Court concludes the present
complaint does not state a claim for relief.
Order to Show Cause
Plaintiff will be ordered to show cause why this matter should
not be dismissed for the reasons set forth. In the alternative, he
may file an amended complaint on court-approved forms to cure the
deficiencies discussed in this order.1 Plaintiff will be given time
In order 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 (20-3238-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
the body of the complaint, where he must allege facts describing the
unconstitutional acts taken by each defendant including dates,
locations, and circumstances. Plaintiff must allege sufficient facts
to show a federal constitutional violation.
1

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to file the amended complaint, and the amended complaint must (1) raise
only properly joined claims and defendants; (2) allege sufficient
facts to state a claim for relief; and (3) allege sufficient facts
to show personal participation by each named defendant.
If plaintiff fails to file an amended complaint or to show cause,
this matter will be decided on the current deficient complaint and
may be dismissed without additional notice for failure to state a claim
for relief.
IT IS, THEREFORE, BY THE COURT ORDERED that on or before November
3, 2020, plaintiff shall show cause why this matter should not be
dismissed for the reasons discussed herein.
IT IS FURTHER ORDERED that plaintiff is granted to and including
November 3, 2020, to file an amended complaint to cure the deficiencies
identified in this order. The clerk of the court shall transmit a form
pleading and instructions to plaintiff.
IT IS SO ORDERED.
DATED:

This 13th day of October, 2020, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge