Gruber (ID 118524) v. Wecker

Filing 12

MEMORANDUM AND ORDER ENTERED: This matter is dismissed without prejudice for failure to state a claim upon which relief can be granted. Signed by U.S. Senior District Judge Sam A. Crow on 01/07/22. Mailed to pro se party Christian M. Gruber by regular mail. (smnd)

Case 5:21-cv-03186-SAC Document 12 Filed 01/07/22 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CHRISTIAN M. GRUBER,
Plaintiff,
v.

CASE NO. 21-3186-SAC

CHRISTOPHER WECKER, et al.,
Defendants.
MEMORANDUM AND ORDER
I.

Nature of the Matter before the Court
This matter began as two actions Plaintiff initially filed in

Osage County District Court. (Doc. 8, pp. 1-2.) Although Plaintiff
is now incarcerated at Lansing Correctional Facility, both cases
related to events that occurred while he was held in the Osage
County Jail (OCJ). Id. In his state case, Plaintiff named as
Defendants Christopher Wecker, Osage County Sheriff Chris Wells,
and OCJ Jail Administrator Gerry Nitcher, and the Defendants
removed the cases to this Court under 28 U.S.C. §§ 1441 and 1446.
Id.
In one case, Plaintiff asserted that Defendants “show[ed]
deliberate indifference to [Plaintiff’s] medical needs and health
and safety and [did] not follow[] doctors orders.” (Doc. 1, p. 1.)
In the other, Plaintiff asserted that Defendants did not allow him
access to a law library and therefore he was “denied access to the

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Case 5:21-cv-03186-SAC Document 12 Filed 01/07/22 Page 2 of 7

courts.” Case No. 21-3187, Doc. 1, p. 2. As relief, Plaintiff
sought

to

be

“discharged

from

the

unlawful

portion

of

his

imprisonment.” (Doc. 8, p. 2.) On August 27, 2021, this Court
consolidated the cases under case number 21-3186-SAC. (Doc. 7.)
II. Initial Screening
Because Plaintiff was a prisoner when he filed his complaints,
the Court was required by statute to screen the complaints and to
dismiss them or any portion thereof that was frivolous, failed to
state a claim on which relief may be granted, or sought relief
from a defendant immune from such relief. See 28 U.S.C. § 1915A(a)
and (b); 28 U.S.C. § 1915(e)(2)(B).
After screening the complaints, the Court issued a memorandum
and order to show cause (MOSC) identifying certain deficiencies
that led the Court to conclude that the complaints were subject to
dismissal. (Doc. 8.) Specifically, the Court first pointed out
that although the initial pleadings filed in state court were
titled petitions for writ of habeas corpus and Plaintiff sought
release from imprisonment, Plaintiff’s claims were based on the
conditions of confinement at OCJ and were therefore civil rights
claims. Id. at 4.
Next, the Court explained that by failing to articulate what
each defendant did to Plaintiff, when the defendant did it, how
Plaintiff was harmed by the defendant’s action or inaction, and
what specific right Plaintiff believed the defendant had violated,
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Case 5:21-cv-03186-SAC Document 12 Filed 01/07/22 Page 3 of 7

Plaintiff had failed to state an actionable claim of deliberate
indifference to medical needs. Id. at 5 (citing Nasious v. Two
Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492
F.3d 1158, 1163 (10th Cir. 2007). The MOSC advised Plaintiff that
“absent amendment of the Complaint to provide a sufficient factual
basis to establish a viable claim of constitutional significance,
Plaintiff’s inadequate medical care claim is subject to being
summarily dismissed.” (Doc. 8, p. 5.)
Turning to Plaintiff’s claim that he was denied access to the
courts, the Court in the MOSC noted that “in order ‘to present a
viable claim for denial of access, the inmate must allege and prove
prejudice

arising

from

Defendants’

actions.’”

Id.

(citations

omitted). After explaining the requirements for alleging such
prejudice or injury, the MOSC concluded that because “Plaintiff
has not claimed that he suffered any actual prejudice arising from
the alleged lack of a law library at the OCJ,” Plaintiff “fail[ed]
to state a constitutional claim for denial of access to the
courts.” Id. at 5-6. In the MOSC, the Court granted Plaintiff the
opportunity

to

show

cause

why

his

complaints

should

not

be

dismissed or, in the alternative, to file a complete and proper
amended

complaint

that

combines

his

claims

deficiencies the MOSC identified. Id. at 6-7.

3

and

cures

the

Case 5:21-cv-03186-SAC Document 12 Filed 01/07/22 Page 4 of 7

III. Amended Complaint
On October 5, 2021, Plaintiff filed a response to the MOSC
(Doc. 9) and also filed his amended complaint (Doc. 10). As
Plaintiff was informed in the MOSC, the amended complaint is not
an addendum to the initial complaint—it completely replaces it.
(Doc. 8, p. 7. n.2.) “[T]he amended complaint must contain all
allegations and claims that a plaintiff intends to pursue in the
action,

including

complaint[s].”

Id.

those

to

Thus,

be

the

retained

Court

now

from

the

screens

original

the

amended

complaint based only on the allegations therein and does not refer
back

to

the

initial

complaint

or

to

additional

information

contained in Plaintiff’s response to the MOSC.
Unfortunately,

the

amended

complaint

does

not

cure

the

deficiencies the MOSC identified in the initial complaints and it
contains at least one additional deficiency as well: the identity
of the defendants to the amended complaint is unclear. In the
caption, Plaintiff lists Wecker as the only defendant. (Doc. 10,
p. 1.) In the portion of the amended complaint for identifying
individual

defendants,

however,

Plaintiff

names

Wecker

and

Nitcher. Id. at 1-2.
Plaintiff

reasserts

the

two

claims

from

the

original

complaints in the amended complaint, but as before, Plaintiff has
failed to allege sufficient facts to state a viable claim for
relief. With respect to his claim of deliberate indifference to
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Case 5:21-cv-03186-SAC Document 12 Filed 01/07/22 Page 5 of 7

medical needs, Plaintiff asserts only that “[j]ail administration
had repeatedly refused to admit the plaintiff to the hospital
against Dr. Mitts of Ottawa KS orders, showing a deliberate
indifference to my health.” (Doc. 10, p. 4.) As the MOSC explained
in relation to the initial complaint, this is insufficient. The
amended complaint does not explain why Plaintiff wished to be in
the hospital, when or why Dr. Mitts recommended he be admitted,
which defendant refused to admit him to the hospital, when the
refusal occurred, or how the refusal harmed Plaintiff. Thus,
Plaintiff

has

again

filed

to

state

an

actionable

claim

of

deliberate indifference to his medical needs.
Regarding Plaintiff’s claim of being denied access to the
courts,

Plaintiff

has

not

sufficiently

alleged

prejudice

or

injury, as the MOSC explained is necessary. The amended complaint
alleges that Plaintiff “was trying to utilize the law library for
research pertaining to [his] other 42 U.S.C. 1983 action” when
Defendant Nitcher refused to allow him access to a law library and
that his appointed criminal defense attorney would not help him
because a 1983 action is a civil case. (Doc. 10, pp. 2-3.) The
allegation that he was unable to “research” is too vague to present
a plausible allegation of prejudice. See Gee v. Pacheco, 627 F.3d
1178, 1191 (10th Cir. 2010) (finding allegation that plaintiff
“was unable to research and prepare initial pleading” regarding

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Case 5:21-cv-03186-SAC Document 12 Filed 01/07/22 Page 6 of 7

specified claims was “too conclusory to present a plausible claim”
of prejudice resulting from denial of access to courts).
The Court is aware of Gruber v. Wells, Case No. 21-3043-SAC,
a 42 U.S.C. § 1983 action recently dismissed by this Court. That
matter, however, was dismissed for failure to state a claim upon
which relief could be granted, not for any reason obviously related
to Plaintiff’s lack of access to a law library. Plaintiff does not
allege that he missed a filing deadline in that case, nor does he
explain how an inability to research frustrated or impeded a
nonfrivolous legal claim in that action. See Lewis v. Casey, 518
U.S. 343, 354 (1996)(explaining, as also discussed in the MOSC,
how to show the required injury for a claim of denial of access to
the courts). Accordingly, the amended complaint—like the initial
complaint—does not sufficiently allege an actual injury as needed
for a viable claim of unconstitutional denial of access to the
courts.
IV. Conclusion
For all of these reasons, the amended complaint does not cure
the deficiencies in the initial complaints, deficiencies the Court
in the MOSC concluded rendered this matter subject to dismissal in
its entirety. Accordingly, the Court will dismiss this matter for
failure to state a claim upon which relief can be granted.

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Case 5:21-cv-03186-SAC Document 12 Filed 01/07/22 Page 7 of 7

The Court further finds that this dismissal should count as
a strike under the Prison Litigation Reform Act (PLRA). Section
1915(g) of the PLRA provides:
“In no event shall a prisoner bring a civil action or
appeal a judgment in a civil action or proceeding under
this section if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court that is
frivolous, malicious, or fails to state a claim upon
which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.”
28 U.S.C. § 1915(g).
When the Court dismissed Case No. 21-3043-SAC, it assessed
one

strike

against

Plaintiff.

The

dismissal

of

this

matter

constitutes a second strike. Thus, if Plaintiff accumulates one
more strike, he will be unable to proceed in forma pauperis in
future civil actions before federal courts unless he is under
imminent danger of serious physical injury.
IT IS THEREFORE ORDERED that this matter is dismissed without
prejudice for failure to state a claim upon which relief can be
granted.
IT IS SO ORDERED.
DATED:

This 7th day of January, 2022, at Topeka, Kansas.

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

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