Walters v. Sedgwick County, Kansas, Board of Commissioners et al

Filing 5

MEMORANDUM AND ORDER TO SHOW CAUSE ENTERED: Plaintiff's Motion for Appointment of Counsel (Doc. #3 ) is denied without prejudice. Plaintiff is granted until February 17, 2023, in which to show good cause, in writing to the undersigned, why Plaintiff's Complaint should not be dismissed for the reasons stated herein. Signed by District Judge John W. Lungstrum on 1/18/2023. Mailed to pro se party Steven Thomas Walters by regular mail. (jal)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
STEVEN THOMAS WALTERS,
Plaintiff,
v.

CASE NO. 22-3301-JWL-JPO

SEDGWICK COUNTY, KANSAS,
BOARD OF COMMISSIONERS, et al.,
Defendants.
MEMORANDUM AND ORDER TO SHOW CAUSE
Plaintiff Steven Thomas Walters is hereby required to show good cause, in writing to the
undersigned, why this action should not be dismissed due to the deficiencies in Plaintiff’s
Complaint that are discussed herein.
I. Nature of the Matter before the Court
Plaintiff brings this pro se action under 42 U.S.C. § 1983. Plaintiff is detained at the
Sedgwick County Jail in Wichita, Kansas (“SCJ”). The Court granted Plaintiff leave to proceed
in forma pauperis.
Plaintiff alleges as Count I that the living conditions at the SCJ are inhumane and that on
October 21, 2021, he fell coming out of the bathroom due to a leaking sink. (Doc. 1, at 4.)
Plaintiff alleges that there are “live larva” coming from the floor drain and “bugs flying all over
the bathrooms and many other issues.” Id. at 5.
As Count II, Plaintiff claims discrimination. He claims that he was yelled at by Deputy
Simpson for only having his white t-shirt on in the dayroom, but he looked into Pod 15 and saw
other inmates dressed the same way, but nothing was said to them. Id. Plaintiff alleges that he
filed grievances due to policy violations, unprofessional behavior, discrimination and unequal

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treatment, and Captain Scott responded that the information provided by Plaintiff was not really
a grievance. Id.
As Count III, Plaintiff claims “assault and battery.” Id. at 6. Plaintiff alleges that on
October 12, 2022, he was in the dayroom with just his white t-shirt on and Deputy Lyon hit
Plaintiff on the back of the head with some shoes right after getting onto Plaintiff about not being
properly dressed. Id. at 7.

Plaintiff alleges that he grieved the “assault” but was told that the

detectives investigated Plaintiff’s allegations and found that the assault never took place. Id.
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,

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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
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

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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. Conditions Posing Risk/Humane Conditions
Plaintiff alleges that the conditions at the SCJ are inhumane, he slipped due to a leaking
sink, there are live larva coming out of the floor drain, and bugs are flying around the bathroom.
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)); see also
Hooks v. Atoki, 983 F.3d 1193, 1203–04 10th Cir. 2020) (declining to extend Kingsley’s
exclusively objective standard for pretrial detainees’ excessive force claims to Fourteenth
Amendment deliberate indifference claims). A prison official violates the Eighth Amendment
when two requirements are met. Farmer v. Brennan, 511 U.S. 825, 834 (1994). “First, the
deprivation alleged must be, objectively, ‘sufficiently serious.’” Id. To satisfy the objective
component, a prisoner must allege facts showing he or she is “incarcerated under conditions
posing a substantial risk of serious harm.” Id.; Martinez v. Garden, 430 F.3d 1302, 1304 (10th
Cir. 2005).
The Eighth Amendment requires prison and jail officials to provide humane conditions of
confinement guided by “contemporary standards of decency.” Estelle v. Gamble, 429 U.S. 97,
103 (1976). The Supreme Court has acknowledged that the Constitution “‘does not mandate

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comfortable prisons,’ and only those deprivations denying ‘the minimal civilized measure of
life’s necessities’ are sufficiently grave to form the basis of an Eighth Amendment violation.”
Wilson v. Seiter, 501 U.S. 294, 298 (1991) (internal citations omitted). Indeed, prison conditions
may be “restrictive and even harsh.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). “Under the
Eighth Amendment, (prison) officials must provide humane conditions of confinement by
ensuring inmates receive the basic necessities of adequate food, clothing, shelter, and medical
care and by taking reasonable measures to guarantee the inmates’ safety.” McBride v. Deer, 240
F.3d 1287, 1291 (10th Cir. 2001) (citation omitted).
The second requirement for an Eighth Amendment violation “follows from the principle
that ‘only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.’”
Farmer, 511 U.S. at 834. Prison officials must have a “sufficiently culpable state of mind,” and
in prison-conditions cases that state of mind is “deliberate indifference” to inmate health or
safety. Id. “[T]he 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.” Id. at 837.
“The Eighth Amendment does not outlaw cruel and unusual ‘conditions’; it outlaws cruel and
unusual ‘punishments.’” Id. It is not enough to establish that the official should have known of
the risk of harm. Id.
Because the sufficiency of a conditions-of-confinement claim depends upon “the
particular facts of each situation; the ‘circumstances, nature, and duration’ of the challenged
conditions must be carefully considered.” Despain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001)
(quoting Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000)). “While no single factor controls .
. . the length of exposure to the conditions is often of prime importance.” Id. As the severity of
the conditions to which an inmate is exposed increases, the length of exposure required to make

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out a constitutional violation decreases. Accordingly, “minor deprivations suffered for short
periods would not rise to an Eighth Amendment violation, while ‘substantial deprivations. . .’
may meet the standard despite a shorter duration.” Id. (citations omitted).
Plaintiffs’ allegations fail to allege a “sufficiently serious” deprivation or facts showing
he is “incarcerated under conditions posing a substantial risk of serious harm.” Plaintiff has also
failed to allege “deliberate indifference” by any defendant. Plaintiff should show good cause
why his claims regarding his conditions of confinement should not be dismissed.
2. Excessive Force
Plaintiff alleges that Deputy Lyon hit him in the back of the head with some shoes, which
allegedly constituted “assault and battery.” Plaintiff has not shown a private cause of action for
violations of a state criminal statute. See Speer v. Beardsley, 2020 WL 4785426, at *4 (D. Kan.
Aug. 18, 2020) (finding no private cause of action for a violation of criminal statutes, including
criminal statutes for assault and battery) (citing see Droge v. Rempel, 180 P.3d 1094, 1097 (Kan.
App. 2008) (“‘Kansas appellate courts generally will not infer a private right of action where a
statute provides criminal penalties but does not mention civil liability.’”) (quoting Pullen v. West,
92 P.3d 584, 597 (Kan. 2004)); see also LeTourneau v. Venture Corp., 2017 WL 2378331 *6 (D.
Kan. June 1, 2017) (“the Court is unwilling to infer a private cause of action for a statute with
solely criminal penalties”). “[S]tate statutes do not provide a basis for liability under § 1983
which only protects rights secured by the Constitution and laws of the United States.” Id.
(citations omitted).
Plaintiff also fails to state a claim for excessive force. “Excessive force claims are
cognizable under the Fourth, Fifth, Eighth, and Fourteenth Amendment, depending on where in
the criminal justice system the plaintiff is at the time of the challenged use of force.” Vette v. K-

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9 Unit Deputy Sanders, 989 F.3d 1154, 1169 (10th Cir. 2021) (citation omitted). Claims of
mistreatment while in state pretrial confinement are not covered by the Fourth Amendment or the
Eighth Amendment. Colbruno v. Kessler, 928 F.3d 1155, 1162 (10th Cir. 2019). They are
assessed under the Fourteenth Amendment. Id.
The Court in Kingsley held that “the appropriate standard for a pretrial detainee’s
excessive[-]force claim is solely an objective one” and that therefore “a pretrial detainee can
prevail by providing only objective evidence that the challenged governmental action is not
rationally related to a legitimate governmental objective or that it is excessive in relation to that
purpose.” Brown v. Flowers, 974 F.3d 1178, 1182 (10th Cir. 2020) (quoting Kingsley v.
Hendrickson, 576 U.S. 389, 135 S. Ct. 2466, 2473–74, 192 L. Ed. 2d 416 (2015); see also
Colbruno, 928 F.3d at 1163 (“[T]here is no subjective element of an excessive-force claim
brought by a pretrial detainee.”).
Not every isolated battery or injury to an inmate amounts to a federal constitutional
violation. See Hudson v. McMillian, 503 U.S. 1, 9 (1992) (stating that not “every malevolent
touch by a prison guard gives rise to a federal cause of action.”) (citing Johnson v. Glick, 481
F.2d 1028, 1033 (2nd Cir. 1973) (“Not every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional rights”)).
Plaintiff has not alleged wrongdoing that is objectively harmful enough to establish a
constitutional violation. In Snyder v. Spilde, the court found that:
Merely grabbing and twisting Mr. Snyder’s arms does not allege a
constitutional violation. See e.g., Norton v. The City of Marietta,
432 F.3d 1145, 1156 (10th Cir. 2005) (dismissing claim in which
prison guards were alleged to have injured prisoner by grabbing
him around his neck and twisting it because the guards’ actions
were not objectively harmful enough to establish a constitutional
violation); Reed v. Smith, No. 97-6341, 1999 WL 345492, at *4
(10th Cir. 1999) (dismissing excessive force claim based on
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allegations that prison officials grabbed inmate, tried to ram him
into a wall, and dragged him while walking him through the
prison); Marshall, 415 Fed. App’x at 853–54 (dismissing excessive
force claim based on allegations that corrections officer dug his
fingernails into prisoner’s arm without cause to do so resulting in
redness and bruising). Accord De Walt v. Carter, 224 F.3d 607,
610–11 (7th Cir. 2000) (holding that shoving a prisoner into a
doorframe, which resulted in bruising on his back, did not state a
constitutional violation); Boddie v. Schnieder, 105 F.3d 857, 862
(2d Cir. 1997) (holding that bumping, grabbing, elbowing, and
pushing a prisoner was “not sufficiently serious or harmful to reach
constitutional dimensions.”); Black Spotted Horse v. Else, 767 F.2d
516, 517 (8th Cir. 1985) (pushing cubicle-cell wall onto prisoner’s
leg, causing bruises, was insufficient use of force to state a
constitutional violation); Olson v. Coleman, 804 F. Supp. 148,
149–50 (D. Kan. 1982) (single blow to prisoner’s head while
escorting him into prison, causing contusion, was de minimis use
of force not repugnant to conscience of mankind).
Snyder v. Spilde, No. 15-cv-2169-GPG, 2016 WL 1059612, at *3–4 (D. Colo. March 17, 2016).
Plaintiff should show good cause why his claims regarding the alleged “assault” should not be
dismissed.
3. Discrimination
Plaintiff alleges discrimination because he was called out for not being dressed properly
while other inmates in Pod 15 were not called out for the same thing. To allege an equal
protection violation, a plaintiff must state facts indicating that defendants treated him differently
than other similarly situated individuals. See City of Cleburne v. Cleburne Living Ctr., 473 U.S.
432, 439 (1985). Plaintiff does not allege that he was treated differently on the basis of class
membership. To proceed upon an equal protection claim as a “class-of-one plaintiff,” there must
be allegations that others similarly situated in every material respect were intentionally treated
differently and that the government’s action was irrational and abusive. Haik v. Salt Lake City
Corp., 567 F. App’x 621, 631–32 (10th Cir. 2014); Kan. Penn Gaming, LLC v. Collins, 656 F.3d
1210, 1216 (10th Cir. 2011). Plaintiff has failed to allege that the other inmates were similarly
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situation in every material respect. See Barney v. Pulsipher, 143 F.3d 1299, 1312 (10th Cir.
1998) (“In order to assert a viable equal protection claim, plaintiffs must first make a threshold
showing that they were treated differently from others who were similarly situated to them.”)
(citation omitted). Plaintiff should show good cause why his discrimination claim should not be
dismissed.
4. Grievance Procedures/Responses
Plaintiff’s claims that Captain Scott responded to Plaintiff’s grievances by stating that the
information provided by Plaintiff was not really a grievance. Plaintiff’s claim relates 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 claim regarding the grievance process and the failure to properly
respond to grievances is subject to dismissal for failure to state a claim.
IV. Motion for Appointment of Counsel
Plaintiff has filed a Motion for Appointment of Counsel (Doc. 3). Plaintiff alleges that he

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is indigent and unable to obtain counsel. (Doc. 3, at 4.)
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 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 Required
Plaintiff is required to show good cause why his Complaint should not be dismissed for
the reasons stated herein. Failure to respond by the deadline may result in dismissal of this
matter without further notice.

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IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion for
Appointment of Counsel (Doc. 3) is denied without prejudice.
IT IS FURTHER ORDERED that Plaintiff is granted until February 17, 2023, in
which to show good cause, in writing to the undersigned, why Plaintiff’s Complaint should not
be dismissed for the reasons stated herein.
IT IS SO ORDERED.
Dated January 18, 2023, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE

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