Carter v. Security Transportation Services, Inc. et al

Filing 10

ORDER ENTERED: Plaintiff's motion for leave to proceed in forma pauperis (Doc. No. 2 ) is granted. The motion for leave to proceed in forma pauperis (Doc. No. 9 ) is considered moot. Plaintiff is directed to submit an initial partial filing f ee of $87.00 to the Clerk of the Court by December 20, 2021. Plaintiff will be required to pay the balance of the $350.00 filing fee in installments calculated pursuant to 28 U.S.C. § 1915(b)(2). Plaintiff has failed to state a plausi ble claim for relief against defendants and his complaint is subject to dismissal. The court shall grant plaintiff time until December 20, 2021, to file a second amended complaint which corrects the deficiencies identified in the amended complaint. I f plaintiff does not timely make payment of the partial filing fee and file a second amended complaint, this case shall be dismissedwithout prejudice. A second amended complaint should be written on court-approved forms and contain every claim plaintiff wishes to litigate in this case. It should not refer back to a previous complaint. Signed by U.S. District Senior Judge Sam A. Crow on 11/17/21. Mailed to pro se party Charles Kendell Carter by regular mail. (smnd)

Case 5:21-cv-03178-SAC Document 10 Filed 11/17/21 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CHARLES KENZELL CARTER,
Plaintiff,
vs.

Case No. 21-3178-SAC

SECURITY TRANSPORTATION SERVICES,
INC., et al.,
Defendants.
O R D E R
Plaintiff, pro se, has filed this action alleging violations
of his constitutional rights in relation to his transportation as
a prisoner by defendants.
pauperis.

He seeks leave to proceed in forma

Doc. Nos. 2 and 9.

to 42 U.S.C. § 1983.1

Plaintiff brings this case pursuant

Plaintiff also asserts counts which allege

negligence and breach of contract.

In this order, the court shall

rule upon plaintiff’s motions for leave to proceed in forma
pauperis. The court shall also review plaintiff’s Doc. No. 8 which
is an amended complaint plaintiff has filed in response to the
court’s directive to file his complaint on forms.
The

court

does

this

on

its

own

motion

to

See Doc. No. 3.

determine

whether

plaintiff has stated a plausible claim for relief which this court

1

Title 42 United States Code Section 1983 provides a cause of action against
“[e]very person who, under color of any statute, ordinance, regulation, custom,
or usage of any State . . . causes to be subjected, any citizen of the United
States . . . to the deprivation of by rights, privileges, or immunities secured
by the Constitution and laws [of the United States].”

1

Case 5:21-cv-03178-SAC Document 10 Filed 11/17/21 Page 2 of 13

has jurisdiction to consider.

See Raiser v. Kono, 245 Fed.Appx.

732, 735 (10th Cir. 2007)(recognizing the court’s authority to
review complaints sua sponte to determine if they state a claim
for relief); see also 28 U.S.C. § 1915(e)(2)(B)(ii).
I. Motions for leave to proceed in forma pauperis
Because plaintiff is a prisoner, he must pay the full filing
fee of $350.00 in installment payments taken from his prison trust
account if he demonstrates that he lacks the funds to prepay the
whole filing fee at once. 28 U.S.C. § 1915(b)(1).

Pursuant to §

1915(b)(1), the court must assess an initial partial filing fee
calculated upon the greater of (1) the average monthly deposit in
his prison account or (2) the average monthly balance in the
account for the six-month period preceding the filing of the
complaint.

Thereafter, the plaintiff must make monthly payments

of

percent

twenty

of

institutional account.

the

preceding

§ 1915(b)(2).

month’s

income

in

his

A prisoner, however, shall

not be prohibited from bringing a civil action or appeal because
he has not means to pay the initial partial filing fee.

§

1915(b)(4).
The court has reviewed the financial records supplied in
support of plaintiff’s motions for leave to proceed in forma
pauperis.

Taking the records for the six months preceding August

11, 2021, when plaintiff filed the original complaint, the court
shall assess an initial partial filing fee of $87.00.
2

After

Case 5:21-cv-03178-SAC Document 10 Filed 11/17/21 Page 3 of 13

payment of the initial partial filing fee, plaintiff shall be
required to make monthly payments of 20% of the preceding month’s
income credited to the prisoner’s account.
custody

of

plaintiff

shall

forward

The agency having

payments

from

plaintiff’s

account to the Clerk of the Court each time the amount in the
account exceeds $10 until the filing fees are paid.
II. Screening_standards
The

court

complaint

and

shall
apply

liberally
“less

stringent

pleadings drafted by lawyers.”
94 (2007).

construe

plaintiff’s

standards

than

pro

se

formal

Erickson v. Pardus, 551 U.S. 89,

Nevertheless, a pro se litigant must follow the same

procedural rules as any other litigant. See Green v. Dorrell, 969
F.2d 915, 917 (10th Cir. 1992).
additional

factual

allegations

The court will not “supply
to

round

out

a

plaintiff’s

complaint or construct a legal theory on [a pro se] plaintiff’s
behalf.”

Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.

1997).
When deciding whether plaintiff’s complaint “fails to state
a claim upon which relief may be granted,” the court must determine
whether

the

complaint

contains

“sufficient

factual

matter,

accepted as true, to ‘state a claim for relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

The court

accepts the plaintiff’s well-pled factual allegations as true and
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Case 5:21-cv-03178-SAC Document 10 Filed 11/17/21 Page 4 of 13

views them in the light most favorable to the plaintiff.
States v. Smith, 561 F.3d 1090, 1098 (10th Cir. 2009).

United

The court

may also consider the exhibits attached to the complaint.

Id.

The court, however, is not required to accept legal conclusions
alleged in the complaint as true. Iqbal, 556 U.S. at 678. “Thus,
mere ‘labels and conclusions' and ‘a formulaic recitation of the
elements of a cause of action’ will not suffice” to state a claim.
Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)
(quoting Twombly, 550 U.S. at 555).
III. Plaintiff’s amended complaint
Plaintiff is incarcerated currently in Virginia.

He alleges

that he is a state prisoner whose Eighth and Fourteenth Amendment
rights were violated when, in August 2019, he was being transported
from a Wyoming prison to a prison in Kansas and beyond by defendant
Security Transportation Services, Inc. (STS), a Kansas company.
Plaintiff alleges that on August 21, 2019, a mentally unbalanced
female inmate slipped her handcuffs and assaulted a male inmate in
the transport and that the driver of the transport, defendant Josh
(LNU), almost wrecked it pulling over to stop the fight while
another security officer, defendant Carrie (LNU), did nothing and
ignored the incident. Plaintiff does not allege that either inmate
was injured in the altercation.
Plaintiff states that he was in full-body restraints and that
defendant Josh (LNU) ordered him to sit in front beside the female
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Case 5:21-cv-03178-SAC Document 10 Filed 11/17/21 Page 5 of 13

inmate.

Plaintiff claims that she again slipped her handcuffs and

began poking plaintiff in the face.

Plaintiff asserts that the

transport was stopped “to get the Sheriff to assist in putting the
handcuffs back on.”

Doc. No. 8, p. 4.

He claims that the female

inmate later slipped the handcuffs again and poured soda on
plaintiff. Plaintiff alleges that defendants Josh (LNU) and Carrie
(LNU) failed to protect plaintiff from being assaulted.
Plaintiff further alleges that on August 25, 2019, defendant
Anthony (LNU) drove the transport recklessly, exposing plaintiff
to danger and that defendant Gary (LNU), a supervisor, did nothing
to stop it from happening.
Plaintiff asserts that he suffers from mental illness and
PTSD.
Plaintiff’s amended complaint alleges a violation of his
Eighth and Fourteenth Amendment rights.

It also asserts what

appear to be state law negligence claims for reckless endangerment
(reckless driving), failure to protect, and failure to offer a
remedy or intervene.

Finally, the amended complaint mentions

breach of contract and the Americans with Disabilities Act.2

2

Plaintiff does not mention the ADA as the basis for a count of the amended
complaint. For this reason and because his allegations do not describe him as
a qualified individual with a disability or describe discrimination on the basis
of a disability, the court finds that plaintiff has failed to state a claim for
an ADA violation.

5

Case 5:21-cv-03178-SAC Document 10 Filed 11/17/21 Page 6 of 13

IV. Plaintiff
violation.

does

not

state

a

claim

for

a

constitutional

A. Eighth Amendment
The Supreme Court has assumed that “prison officials have a
duty to protect prisoners from violence at the hands of other
prisoners.”

Farmer v. Brennan, 511 U.S. 825, 833 (1994)(quoting

Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.
1988)).

“[A] failure to meet this duty violates the Eighth

Amendment only when two requirements are met.

First, the alleged

deprivation must be ‘sufficiently serious’ under an objective
standard.

.

.

.

Second,

the

prisoner

must

show

that

officials had subjective knowledge of the risk of harm.

prison

In 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.’”

Howard v. Waide,

534 F.3d 1227, 1236 (10th Cir. 2008)(quoting Farmer, 511 U.S. at
834 and 837).
be

“The mere showing that an assault occurred may not

sufficient.

If

the

assault

resulted

from

defendants’

negligence, no constitutional claim is presented.”

Trotter v.

Wade, 1995 WL 472786 *1 (D.Kan. 7/31/1995)(citing Davidson v.
Cannon, 474 U.S. 344 (1986)).
Plaintiff has not described facts demonstrating that the
alleged

failure

to

protect

in

this

case

either

caused

a

sufficiently serious injury or that the defendants had subjective

6

Case 5:21-cv-03178-SAC Document 10 Filed 11/17/21 Page 7 of 13

knowledge of a risk of serious harm.

Therefore, he has not stated

a plausible claim for damages as compensation for an Eighth
Amendment violation.

Cf., Riddle v. Mondragon, 83 F.3d 1197, 1205

(10th Cir. 1996)(allegations of being placed in fear of life by
physical assaults does not state an Eighth Amendment claim).
Moreover, under 42 U.S.C. § 1997e(e), an inmate may not
recover compensatory damages in a federal civil action “for mental
or emotional injury suffered while in custody without a prior
showing of physical injury or the commission of a sexual act.”
B. Fourteenth Amendment
Plaintiff asserts that his right to liberty was denied without
due process because an “atypical and significant hardship” was
imposed on plaintiff in relation to the ordinary incidents of
prison life.

The term “atypical and significant hardship” is

recognizable from Sandin v. Conner, 515 U.S. 472 (1995).

Sandin

concerned an inmate who was placed in disciplinary segregation for
30 days after being found guilty of prison misconduct.

The inmate

claimed that he was denied due process leading to the disciplinary
punishment.

The Court held that the liberty interests protected

by the Due Process Clause were the interests in freedom from
restraint which imposed “atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.”
U.S. at 484.

7

515

Case 5:21-cv-03178-SAC Document 10 Filed 11/17/21 Page 8 of 13

Plaintiff does not expressly or specifically describe the
alleged “atypical and significant hardship.”

The court assumes he

is referring to the failure to protect him from the assault by the
female inmate and the reckless driving of the transport. Plaintiff
does not allege facts, however, showing that either incident is an
atypical or significant hardship.

Therefore, he has not asserted

facts showing a plausible due process violation.
The court notes as well that negligent conduct does not
provide grounds for liability under § 1983.

See Kingsley v.

Hendrickson, 576 U.S. 389, 396 (2015); Darr v. Town of Telluride,
Colo., 495 F.3d 1243, 1257 (10th Cir. 2007); see also, Davidson v.
Cannon, 474 U.S. 344, 348 (1986)(“due process has never been
understood to mean that the State must guarantee due care on the
part of its officials”).

Here, plaintiff does not allege that

defendants acted with the intention of causing harm to plaintiff.
Finally, the provisions of § 1997e(e) apply to plaintiff’s
due process claims to prevent the award of compensatory damages.
C. Security Transport Services, Inc.
While STS may be considered as a person acting under color of
state law for purposes of § 1983, it may not be held liable based
upon respondeat superior – that is, solely because it employs
someone who violated the Constitution. See Rascon v. Douglas, 718
Fed.Appx. 587, 589–90 (10th Cir. 2017); Spurlock v. Townes, 661
Fed. Appx. 536, 545 (10th Cir. 2016).
8

To describe liability by

Case 5:21-cv-03178-SAC Document 10 Filed 11/17/21 Page 9 of 13

STS under § 1983, plaintiff must allege facts showing a policy or
a custom of STS that caused his injury. See Monell v. Department
of Social Services of City of New York, 436 U.S. 658, 691–94 (1978)
(stating requirements for pursuing a § 1983 claim against a
municipality); Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th
Cir. 2003) (extending Monell requirements to a private entity
performing a state function); Wabuyabo v. Correct Care Sols., 723
Fed.Appx. 642, 643 (10th Cir. 2018) (“[T]o state a claim against
CCS, [Plaintiff] must identify an official policy or custom that
led to the alleged constitutional violation.”). Plaintiff has
failed to allege such facts. Consequently, his § 1983 claim against
STS is subject to dismissal for failure to state a claim.
V. Plaintiff does not state a plausible claim for negligence.
Plaintiff alleges negligence.

Under the Restatement (Second)

of Torts § 320 (1965), one “who voluntarily takes the custody of
another under circumstances such as to deprive the other of his
normal power of self-protection or to subject him to association
with persons likely to harm him, is under a duty to exercise
reasonable care so to control the conduct of third persons as to
prevent them from intentionally harming the other or so conducting
themselves as to create an unreasonable risk of harm to him, if
the actor (a) knows or has reason to know that he has the ability
to control the conduct of the third persons, and (b) knows or
should know of the necessity and opportunity for exercising such
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Case 5:21-cv-03178-SAC Document 10 Filed 11/17/21 Page 10 of 13

control.”

Negligence exists where there is a duty owed by one

person to another, a breach of that duty, a causal connection
between the duty breached and the injury received, and damage by
the negligence.

See Seibert v. Vic Regnier Builders, Inc., 856

P.2d 1332, 1338 (Kan. 1993).
Plaintiff does not allege facts plausibly demonstrating a
cause of action for negligence for the following reasons.

First,

plaintiff does not allege damage from defendants’ alleged reckless
driving.
Second, as to a claim for the failure to protect or intervene,
plaintiff fails to allege a threat of significant harm that was
known

to

defendants.

Plaintiff

alleges

that

prior

to

her

“assaults” upon plaintiff, the female inmate instigated a fight
with another inmate on the transport. He does not allege, however,
that the other inmate was harmed, only that he reacted violently
against the female inmate.

Plaintiff does not allege that the

female inmate used or had access to a weapon, or that she caused
significant harm to plaintiff.

Plaintiff does not allege that he

objected to being seated next to the female inmate, that the female
inmate threatened him prior to his being seated next to her, or
that she threatened to spill her drink on plaintiff.

He only

alleges that she was mentally unbalanced and that she “assaulted”
plaintiff. The amended complaint states that defendants stopped
the transport and obtained assistance in handcuffing the female
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Case 5:21-cv-03178-SAC Document 10 Filed 11/17/21 Page 11 of 13

inmate after she started poking plaintiff.

To reiterate, the

amended complaint does not mention a significant injury, or that
defendants were aware of a reasonable threat of significant injury
from the female inmate, or that defendants failed to react in a
reasonable time and manner to protect plaintiff from significant
injury.
Third,

there

is

no

duty

to

the

court’s

knowledge

for

defendants to offer a remedy to plaintiff under the facts as
alleged.
For these reasons, the court concludes that amended complaint
does not state a plausible claim for negligence.
VI. Plaintiff has not stated a plausible claim for breach of
contract.
Plaintiff broadly and generally alleges breach of contract,
but does not describe facts demonstrating that defendant STS
breached a specific contractual provision.

Among the elements

which must be alleged to state a breach of contract claim is the
existence of a contract between the parties, a breach of the
contract by defendant, and damages to plaintiff caused by the
breach.

See Stechschulte v. Jennings, 298 P.3d 1083, 1098 (Kan.

2013).

Plaintiff does not describe the contract in question or

indicate what contractual provision was violated and how it was
violated.

He also does not allege that he was caused damages.

His mere conclusory statements fail to describe a plausible breach

11

Case 5:21-cv-03178-SAC Document 10 Filed 11/17/21 Page 12 of 13

of contract claim.

See Nolan-Bey v. Wickham Glass, Inc., 714

Fed.Appx. 915, 916 (10th Cir. 2018); Washington v. Washington, 605
Fed.Appx. 716, 718 (10th Cir. 2015).
VII. Conclusion
Plaintiff’s motion for leave to proceed in forma pauperis
(Doc. No. 2) is granted.

The motion for leave to proceed in forma

pauperis (Doc. No. 9) is considered moot.

Plaintiff is directed

to submit an initial partial filing fee of $87.00 to the Clerk of
the Court by December 20, 2021.

Plaintiff will be required to pay

the balance of the $350.00 filing fee in installments calculated
pursuant to 28 U.S.C. § 1915(b)(2).
For the above-stated reasons, plaintiff has failed to state
a plausible claim for relief against defendants and his complaint
is subject to dismissal.

The court shall grant plaintiff time

until December 20, 2021 to file a second amended complaint which
corrects the deficiencies identified in the amended complaint.

If

plaintiff does not timely make payment of the partial filing fee
and file a second amended complaint, this case shall be dismissed
without prejudice.

A second amended complaint should be written

on court-approved forms and contain every claim plaintiff wishes
to litigate in this case.

It should not refer back to a previous

complaint.

12

Case 5:21-cv-03178-SAC Document 10 Filed 11/17/21 Page 13 of 13

IT IS SO ORDERED.
Dated this 17th day of November 2021, at Topeka, Kansas.

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

13