Vos v. Long et al

Filing 11

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE ENTERED: Plaintiff's motion to appoint counsel (Doc. #10 ) is denied without prejudice. Plaintiff is granted until October 7, 2021, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why Plaintiff's Amended Complaint should not be dismissed for the reasons stated herein. Plaintiff is also granted until October 7, 2021, in which to file a complete and proper second amended complaint to cure all the deficiencies discussed herein. Signed by U.S. Senior District Judge Sam A. Crow on 9/7/2021. Mailed to pro se party Jeremy Vos by regular mail. (jal)

Case 5:21-cv-03170-SAC Document 11 Filed 09/07/21 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JEREMY VOS,
Plaintiff,
v.

CASE NO. 21-3170-SAC

J. LONG, et. al,
Defendants.
MEMORANDUM AND ORDER
AND ORDER TO SHOW CAUSE
Plaintiff Jeremy Vos 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 Amended Complaint that are discussed herein. Plaintiff is also given
an opportunity to file a proper second 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 in
custody at the Butler County Jail in El Dorado, Kansas (“BCJ”). The Court granted Plaintiff
leave to proceed in forma pauperis.
Plaintiff alleges in his Amended Complaint (Doc. 9) that he has type 1 diabetes and was
not feeling well on July 9, 2021. Plaintiff claims his feet were sweaty and he was dehydrated,
which he claims are signs of high blood sugar. Plaintiff alleges that he asked Deputy Long if
Plaintiff could check his blood sugar. Plaintiff claims that Long responded that Plaintiff would
need to lockdown first, and Plaintiff complied. Plaintiff alleges that Deputy Long violated
Plaintiff’s Eighth Amendment rights when Long delayed Plaintiff’s access to medical care.
Plaintiff claims that Long chose to adjust a TV prior to checking Plaintiff’s blood sugar level.

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Plaintiff alleges that when he reported the incident, he was called to Corporal
Stapleford’s office to discuss the situation. Plaintiff claims that Sergeant Leue and another
deputy were also present during the conversation.

Plaintiff claims that Stapleford used

intimidation and threatened to put Plaintiff on special management. She told Plaintiff that
Plaintiff needed to be patient and that his blood sugars are normally high. Plaintiff states that
while this is true, high blood sugar is still dangerous. Plaintiff alleges that Stapleford failed to
correct Long’s actions and did little about Plaintiff’s grievances.
Plaintiff also claims that Sergeant Leue placed Plaintiff on lockdown and denied him
exercise for ten days while an investigation was pending on a PREA matter. Plaintiff alleges that
no one else was locked down during the investigation.
Plaintiff names as Defendants: Deputy J. Long; Corporal A. Stapleford; and Sergeant E.
Leue.

Plaintiff’s request for relief includes injunctive relief in the form of an order for

Defendants to stop violating Plaintiff’s rights, and monetary damages for the wanton infliction of
pain.
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

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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
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

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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).
III. DISCUSSION
1. Medical Care
“[D]eliberate indifference to a pretrial detainee’s serious medical needs includes both an
objective and a subjective component.” Strain v. Regalado, 977 F.3d 984, 989 (10th Cir. 2020)
(finding that although a pretrial detainee’s claim is based on the Fourteenth Amendment, the
same standard for Eighth Amendment claims applies).1 To establish the objective component,
“the alleged deprivation must be ‘sufficiently serious’ to constitute a deprivation of constitutional
dimension.” Id. at 989–90 (citations omitted).
A medical need is sufficiently serious “if it is one that has been diagnosed by a physician
as mandating treatment or one that is so obvious that even a lay person would easily recognize
the necessity for a doctor’s attention.” Id. at 990 (citation omitted). The “negligent failure to

1

It is unclear whether Plaintiff is a pretrial detainee. Regardless, the Eighth Amendment standard applies.
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provide adequate medical care, even one constituting medical malpractice, does not give rise to a
constitutional violation.” Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 811 (10th Cir. 1999)
(citing Estelle v. Gamble, 429 U.S. 97, 105–06 (1976)).
In situations where treatment was delayed rather than denied altogether, the Tenth Circuit
requires a showing that the inmate suffered “substantial harm” as a result of the delay. Sealock
v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000) (citation omitted). “The substantial harm
requirement ‘may be satisfied by lifelong handicap, permanent loss, or considerable pain.’”
Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quoting Garrett v. Stratman, 254 F.3d 946,
950 (10th Cir. 2001)). Plaintiff does not allege that he was denied treatment, but rather claims
there was a slight delay in receiving his blood sugar test. Plaintiff has not alleged lifelong
handicap, permanent loss, or considerable pain as a result of the delay.
Plaintiff also fails to satisfy the subjective prong. The Supreme Court has insisted upon
actual knowledge: “the official must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw the inference.”
Farmer v. Brennan, 511 U.S. 825, 837 (1994) (emphasis added). Plaintiff has failed to show that
the officials were both aware of facts from which the inference could be drawn that a substantial
risk of serious harm existed, and that they also drew the inference. Plaintiff must show good
cause why his medical claim should not be dismissed for failure to state a claim.
2. Claims Against Corporal Stapleford
Plaintiff claims that he was called to Corporal Stapleford’s office to discuss the delay in
his blood sugar test and she used intimidation, threatened to place Plaintiff on special
management, told Plaintiff that he needed to be patient and that his blood sugars are normally
high, and failed to properly answer Plaintiff’s grievances.

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Plaintiff’s claims fail to allege a constitutional violation. The Tenth Circuit has found
that “[m]ere verbal threats or harassment do not rise to the level of a constitutional violation
unless they create ‘terror of instant and unexpected death.’” Alvarez v. Gonzales, 155 F.
App’x 393, 396 (10th Cir. 2005) (unpublished) (finding no constitutionally protected right where
plaintiff claimed guard antagonized him with sexually inappropriate comment) (quoting
Northington v. Jackson, 973 F.2d 1518, 1524 (10th Cir. 1992)). Plaintiff has made no such
allegation.

Plaintiff’s claims regarding Shackleford’s threats and intimation are subject to

dismissal for failure to state a claim.
Plaintiff acknowledges that a grievance procedure is in place and that he used it.
Plaintiff’s claims relate to his dissatisfaction with responses to his grievances. The Tenth Circuit
has held several times that there is no constitutional right to an administrative grievance system.
Gray v. GEO Group, Inc., No. 17–6135, 2018 WL 1181098, at *6 (10th Cir. March 6, 2018)
(citations omitted); Von Hallcy v. Clements, 519 F. App’x 521, 523–24 (10th Cir. 2013); Boyd v.
Werholtz, 443 F. App’x 331, 332 (10th Cir. 2011); see also Watson v. Evans, Case No. 13–cv–
3035–EFM, 2014 WL 7246800, at *7 (D. Kan. Dec. 17, 2014) (failure to answer grievances does
not violate constitutional rights or prove injury necessary to claim denial of access to courts);
Strope v. Pettis, No. 03–3383–JAR, 2004 WL 2713084, at *7 (D. Kan. Nov. 23, 2004) (alleged
failure to investigate grievances does not amount to a constitutional violation); Baltoski v.
Pretorius, 291 F. Supp. 2d 807, 811 (N.D. Ind. 2003) (finding that “[t]he right to petition the
government for redress of grievances . . . does not guarantee a favorable response, or indeed any
response, from state officials”). Plaintiff’s claims regarding the grievance process and the failure
to properly respond to grievances are subject to dismissal for failure to state a claim.

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3. Conditions of Confinement
Plaintiff claims that Sergeant Leue deprived him of ten days of exercise when he placed
Plaintiff in segregation pending a PREA investigation. Plaintiff has not stated a claim for relief
based on his conditions of confinement.
The Tenth Circuit has held that a pretrial detainee’s claims regarding conditions of
confinement are governed by the Due Process Clause, and that “the Eighth Amendment standard
provides the benchmark for such claims.” Routt v. Howard, 764 F. App’x 762, 770 (10th Cir.
2019) (unpublished) (quoting Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998)).
“The Due Process Clause of the Fourteenth Amendment requires that a pretrial detainee
be provided ‘humane conditions of confinement by ensuring the basic necessities of adequate
food, clothing, shelter, and medical care and by taking reasonable measures to guarantee his
safety.’” Routt, 764 F. App’x at 770 (citing Ledbetter v. City of Topeka, 318 F.3d 1183, 1188
(10th Cir. 2003) (ellipsis, brackets, and internal quotation marks omitted)); see also Kelley v.
Wright, No. 2:19-CV-02278-JAR-JPO, 2019 WL 6700375, at *10 (D. Kan. Dec. 9, 2019). To
establish liability, a pretrial detainee must show: “(1) the official[ ] knew of and disregarded an
excessive risk to his health and safety, and (2) the alleged deprivation was sufficiently serious.”
Routt, 764 F. App’x at 770 (citing Ledbetter, 318 F.3d at 1188 (citation, brackets, and internal
quotation marks omitted)). However, “jail conditions may be restrictive and even harsh without
violating constitutional rights.” Id. (citing Ledbetter, 318 F.3d at 1188 (internal quotation marks
omitted)).
Plaintiff has not alleged long-term exposure to the conditions. “An important factor in
determining whether conditions of confinement meet constitutional standards is the length of the
incarceration.” Id. (citing Barney v. Pulsipher, 143 F.3d 1299, 1311 (10th Cir. 1998)). Thus,

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“[t]ime can play a significant part in a court’s analysis of these issues,” and “[t]here is . . . a de
minimus level of imposition with which the Constitution is not concerned.” Kelley, 2019 WL
6700375, at *10 (citations omitted). Plaintiff’s lack of exercise for ten days does not meet the
level of a constitutional violation and is subject to dismissal for failure to state a claim.
Pretrial detainees, “may not be punished prior to an adjudication of guilt in accordance
with due process of law.” Bell v. Wolfish, 441 U.S. 520, 535 (1979) (citations omitted).

“A

person lawfully committed to pretrial detention has not been adjudged guilty of any crime . . .
[and] has had only a ‘judicial determination of probable cause as a prerequisite to [the] extended
restraint of [his] liberty following arrest.” Id. (citations omitted). The government may “detain
him to ensure his presence at trial and may subject him to the restrictions and conditions of the
detention facility so long as those conditions and restrictions do not amount to punishment, or
otherwise violate the Constitution.” Id. at 536–37. To determine when restrictions pass, as a
matter of law, from constitutionally acceptable to constitutionally impermissible, a court must
ask two questions. Blackmon v. Sutton, 734 F.3d 1237, 1241 (10th Cir. 2013). “First, we must
ask whether an ‘expressed intent to punish on the part of detention facility officials’ exists” and
“[i]f so, liability may attach. If not, plaintiff may still prove unconstitutional punishment by
showing the restriction in question bears no reasonable relationship to any legitimate
governmental objective.” Id. (citing Bell, 441 U.S. at 538–39).
Plaintiff has not alleged an intent to punish on the part of staff at the BCJ. “Restraints
that are reasonably related to the institution’s interest in maintaining jail security do not, without
more, constitute unconstitutional punishment, even if they are discomforting and are restrictions
that the detainee would not have experienced had he been released while awaiting trial.” Bell,
441 U.S. at 540.

“[I]n addition to ensuring the detainees’ presence at trial, the effective

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management of the detention facility once the individual is confined is a valid objective that may
justify imposition of conditions and restrictions of pretrial detention and dispel any inference that
such restrictions are intended as punishment.” Id. The Supreme Court has warned that these
decisions “are peculiarly within the province and professional expertise of corrections officials,
and, in the absence of substantial evidence in the record to indicate that the officials have
exaggerated their response to these considerations, courts should ordinarily defer to their expert
judgment in such matters.” Id. at 540, n.23 (citations omitted). Plaintiff must show good cause
why his claims regarding the conditions of his confinement should not be dismissed for failure to
state a claim.
4. No Physical Injury
Plaintiff’s request for compensatory damages is barred by 42 U.S.C. § 1997e(e), because
Plaintiff has failed to allege a physical injury. Section 1997e(e) provides in pertinent part that
“[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).
IV. Motion to Appoint Counsel
Plaintiff has filed a motion to appoint counsel (Doc. 10), arguing that he is indigent,
suffers from an intellectual disability, and has trouble understanding certain aspects of civil
procedure and the law. 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 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

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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 submits an amended complaint that
survives screening.
V. Response and/or Amended Complaint Required
Plaintiff is required to show good cause why his Amended Complaint should not be
dismissed for the reasons stated herein. Plaintiff is also given the opportunity to file a complete
and proper second amended complaint upon court-approved forms that cures all the deficiencies
discussed herein.2

Plaintiff is given time to file a complete and proper second amended

2

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 (21-3170-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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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 a second amended complaint within the prescribed time that
cures all the deficiencies discussed herein, this matter will be decided based upon the current
deficient Amended Complaint and may be dismissed without further notice for failure to state a
claim.
IT IS THEREFORE ORDERED THAT Plaintiff’s motion to appoint counsel
(Doc. 10) is denied without prejudice.
IT IS FURTHER ORDERED that Plaintiff is granted until October 7, 2021, in which
to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge,
why Plaintiff’s Amended Complaint should not be dismissed for the reasons stated herein.
IT IS FURTHER ORDERED that Plaintiff is also granted until October 7, 2021, in
which to file a complete and proper second 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 7, 2021, 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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