Lazos v. Zmuda et al

Filing 22

MEMORANDUM AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted until July 3, 2024, in which to respond to the Report at Doc. 18 , and to show good cause, in writing to the undersigned, why Plaintiff's remaining claims should not be dismissed. Signed by District Judge John W. Lungstrum on 06/04/24. Mailed to pro se party Jose Daniel Lazos by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOSE DANIEL LAZOS,
Plaintiff,
v.

CASE NO. 23-3259-JWL

JEFF ZMUDA, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff brings this pro se civil rights action under 42 U.S.C. § 1983. Although at the time
of filing Plaintiff was in custody at the Harvey County Detention Center in Newton, Kansas, his
claims arose during his incarceration at the Lansing Correctional Facility in Lansing, Kansas
(“LCF”). On December 20, 2023, the Court entered a Memorandum and Order to Show Cause
(Doc. 6) (“MOSC”) ordering Plaintiff to show good cause why his Complaint should not be
dismissed for the reasons set forth in the MOSC, or to file an amended complaint to cure the
deficiencies. Plaintiff filed an Amended Complaint (Doc. 9), and on February 26, 2024, the Court
entered a Memorandum and Order (Doc. 11) (“M&O”) dismissing Plaintiff’s claims against
Warden Jesse Howes and directing Kansas Department of Corrections (“KDOC”) officials to
submit a Martinez Report. The M&O provides that “[o]nce the report has been received, the Court
can properly screen Plaintiff’s claims under 28 U.S.C. § 1915A.” (Doc. 11, at 6.) The Martinez
Report (Doc. 18) (the “Report”) has now been filed. The Court’s screening standards are set forth
in the Court’s MOSC.
I. Nature of the Matter Before the Court
Plaintiff’s allegations are set forth in detail in the Court’s M&O. In summary, Plaintiff
alleges that on April 9, 2023, at 5:45 am, Plaintiff was assaulted and stabbed four times by three
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other inmates at LCF. (Doc. 9, at 7.) After the altercation, Plaintiff went to the clinic to have his
wounds treated, then the Captain was contacted and Plaintiff was offered the opportunity to sign a
protective custody waiver so that Plaintiff could return to his housing unit in general population.
Id. Because of his fear that he might be killed in general population, Plaintiff refused to sign the
waiver and requested protective custody. Id. at 8. The Captain ordered SORT Shannon to cuff
Plaintiff, to escort him to the A-2 seg restricted housing unit, and to keep Plaintiff cuffed until
further orders were given by the Captain. Id. Plaintiff alleges that he was being obedient, noncombative, non-disruptive, and 100% compliant. Id. Plaintiff alleges that the three inmates that
assaulted him were processed and uncuffed prior to Plaintiff, even though they arrived at
segregation after Plaintiff. Id. at 9. Plaintiff alleges that his requests to be uncuffed were denied,
he remained standing in the holding cage with his hands cuffed behind his back for approximately
four hours, and his shoulders were severely damaged. Id. at 10, 17.
Plaintiff names as defendants: Jesse Howes, LCF Warden; John Doe, LCF Captain; (fnu)
Kouegu, LCF Officer in Command; (fnu) Young, LCF CO1; (fnu) Collins, LCF CO. For relief,
Plaintiff seeks declaratory relief; compensatory damages in the amount of $120,000; and punitive
damages in the amount of $240,000. Id. at 20.
II. The Report
The Report provides that Plaintiff is no longer incarcerated at LCF, nor is he in KDOC
custody. (Doc. 18, at 3.) “He entered on March 24, 2023, and left on June 13, 2023.” Id.; Exhibit
A. The Report further provides that:
1. On April 9[,] 2023, at 05:36am, Lazos was attacked by 3
residents. See Exhibit F.
2. At 05:49am, he entered the clinic and sought medical attention.
Id.

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3. He sustained lacerations measuring 2cm in length on his neck and
chin, along with a puncture wound to his right hand. The wounds
were cleaned but he refused further treatment. Id.
4. As officers began investigating the circumstances surrounding the
assault against Lazos, he became aggressive, threatening, and erratic
towards medical staff and officers. Id. at 4, 9, 10.
5. At 05:58am, Lazos was placed in handcuffs and offered the
opportunity to return to his housing unit in general population by
signing a protective waiver. However, he refused. Id. at 4.
6. At 06:05am, he was placed in a holding cell awaiting a cell to be
found for his placement. Id.
7. In light of Plaintiff’s unusually erratic conduct and his threatening
behavior towards officers, Captain Rasmussen ordered that Plaintiff
be kept restrained until his placement was found. See Exhibit B, ¶ 9.
8. Captain Rasmussen issued those directives, exercising his
discretion as a correctional officer, to forestall any escalation in
Lazos’s behavior that would prompt the necessity to administer a
planned use of force, to enforce compliance during the transfer to
restrictive housing. Id.
9. At 09:24am, he was moved to another holding cell and his
restraints were removed. See Exhibit F. at 4.
10. At 10:00am he was taken to the clinic for the second time and
his wounds were cleaned. Id.
11. At 10:47am, Lazos received restrictive housing clearance and
was escorted to his new cell. Id.
12. Lazos made no complaints to the doctor, nurses, or medical staff,
regarding any injuries sustained as a result of being handcuffed,
while he was incarcerated. See Exhibit G.
13. On June 13, 2023, Lazos was released from LCF. See Exhibit A.
Id. at 4–5.
The Report provides that Plaintiff was not placed in handcuffs in the holding cell for no
reason, but rather due to his demeanor towards officers turning erratic, threatening, and aggressive
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as they inquired into the circumstances surrounding his injuries. Id. at 5. The Report provides that
“[r]elying on Captain Rasmussen’s training and experience, it was determined that [Plaintiff]
should remain handcuffed until he could be relocated to a cell within restricted housing.” Id. The
Report maintains that Defendants “did not act maliciously nor sadistically for the purpose of
causing harm to [Plaintiff] [and,] [i]nstead, [Plaintiff] was handcuffed in good faith to restore
discipline while his new cell was being prepared.” Id. at 6. The Report also states that the lack of
any visits or complaints to the doctor, nurses, or any medical personnel regarding an injury
sustained while being handcuffed “further suggests that the use of force was de minimis.” Id.
III. DISCUSSION
In the M&O, the Court dismissed Plaintiff’s claims against Warden Howes and ordered a
Martinez Report on Plaintiff’s excessive force, failure to protect, and retaliation claims. The Court
also found that to the extent Plaintiff mentions other claims in passing in his Complaint,1 the claims
are denied for the reasons set forth in the Court’s MOSC. The Court found in the MOSC that
Plaintiff’s equal protection claim was subject to dismissal because Plaintiff failed to allege that the
other inmates were similarly situated in every material respect. The Court also found that Plaintiff
failed to state a constitutional violation based on neglect, bystander liability, and inadequate
supervision.
The Court will now screen, in light of the Report, Plaintiff’s remaining claims based on
excessive force, failure to protect, and retaliation. Plaintiff alleges a failure to protect in Count I;
unconstitutional retaliation in Count II; and excessive use of force in Count III. (Doc. 9, at 3–4.)
He does not set forth facts surrounding the initial assault or argue that staff failed to protect him

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Plaintiff states that his Complaint “stems from”: failure to protect; excessive use of force; unconstitutional retaliation;
neglect of duty; discrimination; bystander liability; civil conspiracy; due process; conditions of confinement; failure
to supervise; deliberate indifference; and intentional infliction of emotional distress. (Doc. 9, at 7.) However, other
than the first three, he has not stated these as counts in his Complaint and merely lists them without explanation.

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regarding the initial assault by the other inmates. He also fails to assert a claim based on his
medical care. All of Plaintiff’s claims appear to be based on the fact that his handcuffs were not
removed for over four hours while he was waiting for his cell in segregation.
A. Eighth Amendment – Cruel and Unusual Punishment
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
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

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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.
“[W]henever prison officials stand accused of using excessive physical force in violation
of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force was
applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to
cause harm.” Hudson v. McMillian, 503 U.S. 1, 6–7 (1992) (citation omitted). “The Eighth
Amendment’s prohibition of ‘cruel and unusual’ punishments necessarily excludes from
constitutional recognition de minimis uses of physical force, provided that the use of force is not
of a sort ‘repugnant to the conscience of mankind.’” Id. at 9–10.
Plaintiff alleges that on the day of the incident, he “had not violated any facility rule,
regulation, or procedure, requiring officers to apply the level of restraint used,” and “there is no
indication that the Plaintiff acted inappropriately before or after he requested protective custody.”
(Doc. 9, at 13.) Plaintiff alleges that the officers’ actions were a wanton and unnecessary infliction
of pain and harm for no legitimate purpose, that there was no disciplinary rationale to justify their
actions, and that the actions constituted “an ordinary lack of due care of the Plaintiff’s interests of
health and safety.” Id.

Plaintiff alleges that due to his injuries suffered in the attack, it was

“completely unreasonable to believe that Plaintiff whom requested protective custody was at that
time any type of security threat that jeopardized the order and safety of the facility.” Id. at 14.
Plaintiff alleges that he “lives with a debilitating condition known as neuropathy that causes

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fibromyalgia that deteriorates muscular health weakening multiple types of tissues, [and] Plaintiff
has suffered from this condition since childhood.” Id. at 16 (cleaned up). Plaintiff alleges that
Defendants severely damaged his shoulders and he now suffers extreme pain when attempting to
fulfill basic daily activities and chores. Id. at 17.
Plaintiff’s medical records do not reflect that he complained of shoulder pain following the
incident,2 although he was seen by medical for other issues, including a sore throat, stomach pain,
restless leg syndrome, the need to replace his lost reading glasses, the need for a gluten free diet,
and the need for wrist and ankle braces. He did put in a medical request on April 25, 2023, noting
he was handcuffed for more than four hours and “now require[s] front cuff accommodation.”
(Doc. 19, at 109.)

His May 2, 2023 provider visit notes “musculoskeletal complaints,” and

provides that he “[r]eports pain in head, neck, and shoulders since March 19th . . . [r]eports he was
slammed on his head into concrete ground.” (Doc. 19, at 48.)

Plaintiff did not enter KDOC

custody until March 24, 2023.
Hans Rasmussen, LCF Captain, declares that he began his investigation into the stabbing
incident by asking Plaintiff “to explain the circumstances surrounding his injuries, but he remained
non-compliant [and] [h]is behavior then turned aggressive as [Rasmussen] persisted to question
the surrounding events.” (Doc. 18–2, Declaration of Hans Rasmussen, at ¶ 5.) Rasmussen
declares that Plaintiff was handcuffed at 5:58am and taken to a holding cell where he waited to
receive clearance to be transferred to his new cell in restrictive housing, and his handcuffs were
removed at 9:24am, when he was transferred to a different holding cell. Id. at ¶¶ 8, 10. Rasmussen

 The Court notes that there are no medical records for April 9, 2023—the day of the attack—included in Plaintiff’s
medical records submitted with the Report. However, as part of the investigation into his property claim, information
was received regarding his injuries from Angie Chisham, RN. See Doc. 18–6, at 4. The nurse noted the 2cm long
laceration to the back of his neck on the right side, a laceration to the right side of his chin 2cm long, and a puncture
to the top of his right hand. Id. “The bleeding was stopped but the patient refused any care.” Id.
2

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declares that throughout his interaction with Plaintiff that day, “he was aggressive, non-compliant
and threatened staff.” Id. at ¶ 9. Rasmussen therefore “made the decision to keep him handcuffed,
anticipating that his behavior would persist, necessitating a planned use of force during his transfer
from the holding cell to his new cell in restrictive housing.” Id.
Although Plaintiff’s claims suggest Defendants were negligent, he must show more than
negligence to state an Eighth Amendment violation. Claims under § 1983 may not be predicated
on mere negligence. See Vasquez v. Davis, 882 F.3d 1270, 1277–78 (10th Cir. 2018) (deliberate
indifference requires more than negligence) (citing Farmer v. Brennan, 511 U.S. 825, 835 (1994)).
Plaintiff has also failed to show that any Defendant knew of and disregarded an excessive
risk of harm. A defendant’s subjective intent is inherent in the concept of deliberate indifference.
Martinez, 430 F.3d at 1303. “[A]n official’s intent matters not only as to what the official did (or
failed to do), but also why the official did it.” Hooks v. Atoki, 983 F.3d 1193, 1204 (10th Cir.
2020) (citing Strain v. Regalado, 977 F.3d 984, 993 (10th Cir. 2020)). Plaintiff must “establish
that the official knows of and disregards an excessive risk to inmate health or safety; 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.” Strain, 977 F.3d at 990 (citations and
alteration omitted). Plaintiff should show good cause why his Eighth Amendment claims should
not be dismissed for failure to state a claim.
B. Retaliation
“[I]t is well established that an act in retaliation for the exercise of a constitutionally
protected right is actionable under [42 U.S.C.] Section 1983 even if the act, when taken for a
different reason, would have been proper.” Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990)
(citations omitted). The Tenth Circuit has held that:

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Government retaliation against a plaintiff for exercising his or her First Amendment
rights may be shown by proving the following elements: (1) that the plaintiff was
engaged in constitutionally protected activity; (2) that the defendant’s actions
caused the plaintiff to suffer an injury that would chill a person of ordinary firmness
from continuing to engage in that activity; and (3) that the defendant’s adverse
action was substantially motivated as a response to the plaintiff’s exercise of
constitutionally protected conduct.
Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007).
However, an “inmate claiming retaliation must allege specific facts showing retaliation
because of the exercise of the prisoner’s constitutional rights.” Fogle v. Pierson, 435 F.3d 1252,
1264 (10th Cir. 2006) (quotations and citations omitted). Thus, for this type of claim, “it is
imperative that plaintiff’s pleading be factual and not conclusory.

Mere allegations of

constitutional retaliation will not suffice.” Frazier v. Dubois, 922 F.2d 560, 562 n. 1 (10th Cir.
1990). “To prevail, a prisoner must show that the challenged actions would not have occurred ‘but
for’ a retaliatory motive.” Baughman v. Saffle, 24 F. App’x 845, 848 (10th Cir. 2001) (citing Smith
v. Maschner, 899 F.2d 940, 949–50 (10th Cir. 1990); Peterson v. Shanks, 149 F.3d 1140, 1144
(10th Cir. 1998)).
Plaintiff has failed to allege specific facts showing retaliation by any of the Defendants.
Plaintiff should show good cause why his retaliation claim should not be dismissed.
IV. Response Required
The Martinez report developed as a means “to ascertain whether there is a factual as well
as a legal basis for [a] prisoner’s claims.” Gee v. Estes, 829 F.2d 1005, 1007 (10th Cir. 1987). The
report “is treated like an affidavit, and the court is not authorized to accept the factual findings of
the prison investigation when the plaintiff has presented conflicting evidence.” Hall v. Bellmon,
935 F.2d 1106, 1111 (10th Cir. 1991) (citing Sampley v. Ruettgers, 704 F.2d 491, 493 n. 3 (10th
Cir. 1983)). Thus, at this point in the proceedings the Court does not use the Report to resolve

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conflicts of fact. See Swoboda v. Duback, 992 F.2d 286, 290 (10th Cir. 1993) (“In determining
whether a plaintiff has stated a claim, the district court may not look to the Martinez report, or any
other pleading outside the complaint itself, to refute facts specifically pled by a plaintiff, or to
resolve factual disputes.”). In light of the Report, the Court is considering dismissal of this matter
for failure to state a claim.
Plaintiff will be given an opportunity to respond to the Report and to show good cause why
dismissal should not be entered. Failure to respond by the Court’s deadline may result in dismissal
of this action without further notice.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is granted until July 3,
2024, in which to respond to the Report at Doc. 18, and to show good cause, in writing to the
undersigned, why Plaintiff’s remaining claims should not be dismissed for the reasons stated
herein.
IT IS SO ORDERED.
Dated June 4, 2024, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE

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