Allen v. Bellendir et al

Filing 12

MEMORANDUM AND ORDER ENTERED: This matter is dismissed for failure to state a claim. Signed by District Judge John W. Lungstrum on 06/05/24. Mailed to pro se party Gavin Edward Allen by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GAVIN EDWARD ALLEN,
Plaintiff,
v.

CASE NO. 24-3047-JWL

BRIAN BELLENDIR, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff brings this pro se civil rights action under 42 U.S.C. § 1983. At the time of
filing, Plaintiff was in custody at the Barton County Jail in Great Bend, Kansas (“BCJ”).
Plaintiff is currently housed at the Rice County Law Enforcement Center in Lyons, Kansas
(“RCLEC”). The Court granted Plaintiff leave to proceed in forma pauperis.

On April 18,

2024, the Court entered a Memorandum and Order to Show Cause (Doc. 5) (“MOSC”) ordering
Plaintiff to show good cause why his Complaint should not be dismissed for the reasons stated in
the MOSC, or to file an amended complaint to cure the deficiencies. This matter is before the
Court for screening Plaintiff’s Amended Complaint (Doc. 11). The Court’s screening standards
are set forth in the Court’s MOSC.
I. Nature of the Matter Before the Court
As Count I of his Amended Complaint, Plaintiff alleges that Defendants failed to protect
him from serious harm and failed to respond reasonably to protect him. (Doc. 11, at 3.) As
Count II, Plaintiff alleges that Defendants denied Plaintiff the necessary accommodations to
engage in activities for the practice of his religion. Id.
Plaintiff alleges that on December 8, 2023, he informed BCJ booking officer Bryan
Freeman that Plaintiff felt unsafe in the BCJ because of secondhand smoke and “prior
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experiences of how jail officials and prisoners treat Muslim prisoners.” Id. at 3, 8. Plaintiff
requested protective custody from Cpl. Christine Smith on December 10, 2023, and she
responded that Plaintiff did not deserve that. Id. at 8.
Plaintiff alleges that approximately two weeks later, Correctional Officer Samantha Flour
“inflamed other prisoners against Plaintiff” by telling them that “he thinks he is special.” Id.
That night, Plaintiff informed CO Flour that he did not feel safe because of her statement and she
denied his request to be placed in protective custody. Id.
Plaintiff alleges that the next day, Cpl. Jared Vonveldt informed Plaintiff that the
protective custody unit was full, but he was ordering Plaintiff to remain housed in the B-Pod
alone. Id. He also informed Plaintiff that he would get Plaintiff a trustee worker job. Id.
Plaintiff informed Vonveldt that he felt unsafe and would like to speak to the Sheriff to be
moved to protective custody. Id. Vonveldt did not move Plaintiff to protective custody, but said
he would email the Sheriff. Id.
Plaintiff alleges that from December 8, 2023 to April 17, 2024, he was exposed to
secondhand smoke from prisoners and staff using tobacco products throughout the entire jail. Id.
at 9. Plaintiff alleges that he filed multiple grievances seeking to be moved to a non-smoking
unit and his requests were denied. Id.
Plaintiff states that on April 8, 2024, he mailed a letter to Sheriff Bellendir explaining
Plaintiff’s mistreatment inside the BCJ, stating that as a Muslin Plaintiff did not smoke tobacco
and would like to be placed in a non-smoking unit, and stating that Plaintiff feared for his safety.
Id. Plaintiff alleges that on April 12, 2024, Sgt. Doug Parks announced to the entire BCJ via
electronic memo that he was suspending sales of tobacco products inside the jail. Id. He also
ordered BCJ staff to discontinue their usage. Id.

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Plaintiff alleges that on April 14, 2024, BCJ staff conducted a “shake-down cell search”
looking for contraband. Id. at 10. Plaintiff claims that Cpl. James Allen informed prisoners that
Plaintiff was the cause behind the tobacco sales suspension. Id.
Plaintiff alleges that on April 15, 2024, Cpl. Christine Smith ordered Plaintiff to return to
his cell and bring her a knee brace that was seen in his cell. Id. Plaintiff alleges that he complied
and when he had the knee brace in his hand to take to Cpl. Smith, Plaintiff was confronted by
another prisoner “to give the knee brace to him or [Plaintiff] would be assault[ed].” Id. Plaintiff
argues that he refused, and the prisoner “approached Plaintiff in a threatening gesture of assault
and to prevent harm Plaintiff proactively defended himself from assault.” Id. Plaintiff claims he
was then placed in protective custody and disciplinary segregation without being afforded a due
process hearing to contest the disciplinary sanctions. Id. at 10–11. On April 17, 2024, Plaintiff
was transferred to the RCLEC for his protection. Id. at 11.
Plaintiff argues that Defendants’ refusal to place him in protective custody, to allow him
to practice his religion, and to end his exposure to secondhand smoke, amounts to deliberate
indifference to an unreasonable risk of serious harm in violation of the Fourteenth Amendment
and the Religious Land Use and Institutionalized Person Act (“RLUIPA”). Id.
Plaintiff names BCJ staff as defendants and seeks declaratory relief, an injunction
“ordering defendants to stop the sale and use of any tobacco products inside the Barton County
Detention Center”, compensatory damages in the amount of $1,000, and punitive damages in the
amount of $25,000. Id. at 5, 12.
II. DISCUSSION
1. Request for Relief
Plaintiff seeks declaratory and injunctive relief against staff at the BCJ. The Court

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previously denied Plaintiff’s request for injunctive relief, finding that:
Plaintiff is no longer housed at the BCJ. Plaintiff’s request for
injunctive relief is moot. Plaintiff is currently confined at the
RCLEC. Because Plaintiff’s request relates solely to alleged
wrongdoing on the part of BCJ employees, the Court would be
unable to provide Plaintiff with effective relief and his request for
injunctive relief is moot.
“Past exposure to illegal conduct does not in itself show a
present case or controversy regarding injunctive relief.” O’Shea v.
Littleton, 414 U.S. 488, 495 1974). The Tenth Circuit has applied
this principle to § 1983 actions brought by inmates, and held that
an inmate’s transfer from one prison to another generally renders
moot any request for injunctive relief against the employees of the
original prison concerning the conditions of confinement. See
Green v. Branson, 108 F.3d 1296, 1299–1300 (10th Cir. 1997); see
also Wirsching v. Colorado, 360 F.3d 1191, 1196 (10th Cir. 2004)
(inmate’s release from prison moots his claims for declaratory and
injunctive relief); McAlpine v. Thompson, 187 F.3d 1213, 1215
(10th Cir. 1999) (recognizing prisoner’s release from prison
mooted his § 1983 claim for injunctive relief); Love v. Summit
County, 776 F.2d 908, 910 n.4 (10th Cir. 1985) (noting transfer of
inmate to different prison renders his § 1983 claim for injunctive
relief moot); see also Pfeil v. Lampert, 603 F. App’x 665, 668
(10th Cir. 2015) (unpublished) (holding that “RLUIPA claims
regarding prison conditions become moot if the inmate plaintiff is
released from custody.”) (citations omitted).
The mootness doctrine is based on the reality that even if
the inmate receives injunctive relief, the defendants from the
former prison would be unable to provide the relief to plaintiff.
Because Plaintiff is no longer confined at the BCJ, his request for
injunctive relief is moot and therefore denied.
Likewise, “[a] claim for declaratory relief that does not
‘settl[e] . . . some dispute which affects the behavior of the
defendant toward the plaintiff’ is moot, Rio Grande Silvery
Minnow, 601 F.3d at 1110 (quotations omitted), because it fails to
‘seek[] more than a retrospective opinion that [the plaintiff] was
wrongly harmed by the defendant[.]” Prison Legal News v.
Federal Bureau of Prisons, 944 F.3d 868, 880 (10th Cir. 2019)
(quoting Jordan v. Sosa, 654 F.3d 1012, 1025 (10th Cir. 2011));
see also Church v. Polis, 2022 WL 200661, at *4 (10th Cir. Jan.
24, 2022) (“But declaratory-judgment claims become moot if
circumstances change such that the defendants are not ‘actually
situated to have their future conduct toward the plaintiff altered by
the court’s declaration of rights.’”) (citation omitted).

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(Doc. 10, at 2–3.)
Based on the same reasoning set forth in the Court’s prior order, the Court finds that
Plaintiff’s requests for declaratory and injunctive relief are denied.
2. First Amendment Violations
Plaintiff alleges a violation of his First Amendment rights based on the practice of his
religion. As Count II, Plaintiff alleges that Defendants denied Plaintiff the necessary
accommodations to engage in activities for the practice of his religion. The Court found in the
MOSC that Plaintiff failed to indicate in his Complaint how Defendants infringed his right to
practice his religion, and that he provided no supporting facts for this claim. The Court found
that the claim was subject to dismissal for failure to state a claim.
Plaintiff’s Amended Complaint fails to cure the deficiencies noted in the MOSC. The
Amended Complaint likewise fails to indicate how Defendants infringed on his right to freely
practice his religion and he provides no supporting facts for this claim. Plaintiff’s claim based
on his right to practice his religion is denied for failure to state a claim.
3. Conditions of Confinement/Failure to Protect
Plaintiff claims that staff at the BCJ failed to protect him from serious harm and failed to
respond reasonably to protect him. The Court found in the MOSC that Plaintiff attached his
medical request where he states that he stays in his cell throughout the day to avoid inhaling the
vapors, “[t]he food trays sometimes reek[] of tobacco fumes,” and that he has “[e]ven found
tobacco bits and pieces in the food.” (Doc. 4–1, at 4.) The Court found that it appeared that
Plaintiff was not subjected to the vapors while in his cell, and that he failed to indicate where he
is exposed to them. The Court also found that Plaintiff failed to indicate whether he complained
about the conditions at the BCJ, and if so, to whom and when. The Court found that Plaintiff

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failed to show that a defendant “both knew of and disregarded an excessive risk to [his] health or
safety” related to the presence of vapors. The Court found that Plaintiff’s complaints regarding
the conditions of his confinement at the BCJ were subject to dismissal for failure to state a claim
of cruel and unusual punishment.
In his Amended Complaint, Plaintiff argues that his deliberate indifference claims are
based on Defendants refusal to place him in protective custody, to allow him to practice his
religion, and to end his exposure to secondhand smoke. The Court has already found that
Plaintiff fails to state a claim regarding the practice of his religion.
Plaintiff argues that Defendants refused to place him in protective custody and failed to
end his exposure to secondhand smoke. Plaintiff alleges that: he informed the booking officer
that he felt unsafe due to secondhand smoke and “prior experiences of how jail officials and
prisoners treat Muslim prisoners”; Plaintiff requested protective custody from Cpl. Christine
Smith on December 10, 2023, and she responded that Plaintiff did not deserve that; Plaintiff
informed CO Flour that he did not feel safe because of her statement that Plaintiff “thinks he is
special”; Plaintiff informed Vonveldt that he felt unsafe and would like to speak to the Sheriff to
be moved to protective custody; he filed multiple grievances seeking to be moved to a nonsmoking unit; on April 8, 2024, Plaintiff mailed a letter to Sheriff Bellendir explaining Plaintiff’s
mistreatment inside the BCJ, stating that as a Muslin, Plaintiff did not smoke tobacco and would
like to be placed in a non-smoking unit, and stating that Plaintiff feared for his safety; on
April 14, 2024, BCJ staff conducted a “shake-down cell search” looking for contraband and that
Cpl. James Allen informed prisoners that Plaintiff was the cause behind the tobacco sales
suspension; and that on April 15, 2024, another prisoner “approached Plaintiff in a threatening
gesture of assault and to prevent harm Plaintiff proactively defended himself from assault.”

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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); see also Contreras on behalf of A.L. v. Dona Ana
Cty. Bd. of Cty. Comm’rs, 965 F.3d 1114, 1116 at n.2 (10th Cir. 2020) (Tymkovich Concurring)
(noting that where assaulted party was a pretrial detainee, rather than a convicted prisoner,
lawsuit is considered under the Fourteenth Amendment’s provision for due process, although the
Eighth Amendment’s prohibition against “cruel and unusual punishments” guides the court’s
analysis) (citations omitted).
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

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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.
Plaintiff has not alleged long-term exposure to the conditions. 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 out a constitutional
violation decreases. Accordingly, “minor deprivations suffered for short periods would not rise

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to an Eighth Amendment violation, while ‘substantial deprivations. . .’ may meet the standard
despite a shorter duration.” Id. (citations omitted).
“The unfortunate reality is that threats between inmates are common and do not, under all
circumstances, serve to impute actual knowledge of a substantial risk of harm.” Turner v. Okla.
Cty. Bd. of Cty. Comm’rs, 804 F. App’x 921, 926 (10th Cir. 2020) (unpublished) (citing Marbury
v. Warden, 936 F.3d 1227, 1236 (11th Cir. 2019) (per curiam) (internal quotation marks
omitted); Prater v. Dahm, 89 F.3d 538, 541 (8th Cir. 1996) (same)). “[S]ubjective awareness of
only some risk of harm to a prisoner is insufficient for a deliberate-indifference claim.” Id.
(citing Marbury, 936 F.3d at 1238). Rather, “officials must possess enough details about a threat
to enable them to conclude that it presents a strong likelihood of injury, not a mere possibility.”
Id. (citing Marbury, 936 at 1236 (internal quotation marks omitted)).
Plaintiff has failed to allege facts sufficient to show that any defendant possessed enough
details about a threat to enable them to conclude that there was a strong likelihood of injury, not
a mere possibility. Although Plaintiff expressed his concern that he felt unsafe, he did not relay
any details about a threat to his safety. See Gray v. Sorrels, 744 F. App’x 563, 571 (10th Cir.
2018) (unpublished) (finding allegations of failure to protect too conclusory to establish personal
participation and failed to allege specific content of emails); see also Leonard v. Lincoln Cty. Bd.
of Comm’rs, 790 F. App’x 891, 894 (10th Cir. 2019) (unpublished) (finding plaintiff’s general
request and grievance did not put jail officials on notice that he was at risk of being assaulted).
A claim of deliberate indifference requires a plaintiff to allege “that an official acted (or
failed to act) in an objectively unreasonable manner and with subjective awareness of the risk.”
Strain v. Regalado, 977 F.3d 984, 987 (10th Cir. 2020) (noting that “the word deliberate makes a
subjective component inherent in the claim”). “[A]n official’s intent matters not only as to what

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the official did (or failed to do), but also why the official did it.” Hooks, 983 F.3d at 1204 (citing
Strain, 977 F.3d at 992).
In Brooks v. Easter, this Court addressed an Eighth Amendment claim based on exposure
to environmental tobacco smoke (“ETS”), and dismissed the claim based on qualified immunity.
Brooks v. Easter, 2021 WL 84168 (D. Kan. 2021). The Court concluded that:
Plaintiff has failed to show that Easter’s alleged actions were
contrary to clearly established law. The only case cited by Plaintiff
is Helling itself, which according to Plaintiff “put Easter on notice
that it is unacceptable to expose inmates to unreasonably high
levels of secondhand smoke.” (Doc. 27 at 6.) But the contours of
the right recognized in Helling were not explored in that case, at
least not in a way that would make it clear to all reasonable jail
officials when ETS exposure creates an unreasonable risk to a
prisoner’s health and when it does not. Helling indicates that
whether a particular exposure rises to the level of an Eighth
Amendment violation is a fact-intensive inquiry dependent upon a
number of circumstances. See Helling, 509 U.S. at 35-37
(discussing variables that could impact whether ETS exposure
constituted an Eighth Amendment violation). Implicit in Helling’s
ruling was the premise that exposure to ETS on a lesser scale or in
factual circumstances different from those alleged could fall below
the threshold for an unreasonable risk to health, and thus would not
violate the Eighth Amendment. A number of courts after Helling
have recognized the decision “did not establish a constitutional
right to a smoke-free prison.” Johnson v. Lappin, 478 F. App’x
487, 489 (10th Cir. 2012) (citing cases). In Johnson, for example,
the plaintiff alleged he was exposed to ETS a few times a week
over a period of six months. Id. at 490. The Tenth Circuit said an
allegation that a prisoner with asthma was exposed to minimal
levels of ambient smoke does not necessarily state a constitutional
claim, noting “[a]sthma conditions vary and courts have held that
some asthmatic prisoners may even be permissibly celled with
smokers, absent medical orders to the contrary.” Id. at 492 (citing
Oliver v. Deen, 77 F.3d 156, 160-61 (7th Cir. 1996)). Plaintiff has
not alleged that he had a medical order requiring that he be housed
in a nonsmoking cell.
Brooks v. Easter, 2021 WL 84168, at *4. The Court noted Helling’s observation that exposure to
an unspecified level of ETS could violate the Eighth Amendment, but to prevail, a plaintiff

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would have to prove that the level of exposure was in fact excessive. Id.
Even if Plaintiff could show that a defendant knew of a substantial risk to his safety, a
prison official may be found free from liability if they responded reasonably to the risk. See
Hooks, 983 F.3d at 1205 (citing Farmer, 511 U.S. at 844 (explaining that “prison officials who
actually knew of a substantial risk to inmate health or safety may be found free from liability if
they responded reasonably to the risk, even if the harm ultimately was not averted”)). “[P]rison
officials who act reasonably cannot be found liable.” Id. (citing Farmer, 511 U.S. at 845). To
prevail, a plaintiff must demonstrate that the prison official “responded unreasonably to the
attack.” Id. (citing Farmer, 511 U.S. at 844).
Plaintiff has failed to show that prison officials acted unreasonably in response to his
concerns for his safety. Plaintiff’s allegations show that staff informed Plaintiff that the
protective custody unit was full, but allowed him to be housed alone; staff agreed to email the
Sheriff regarding Plaintiff’s concerns; and in response to Plaintiff’s concerns staff suspended
sales of tobacco products inside the jail and ordered BCJ staff to discontinue their usage.
Plaintiff alleges that on or around April 14, 2024, Cpl. James Allen informed prisoners
that Plaintiff was the cause behind the tobacco sales suspension, and the following day he had to
“proactively defended himself from assault” when another prisoner asked Plaintiff for his knee
brace. However, Plaintiff acknowledges that he was placed in protective custody after the
April 15, 2024 incident, and on April 17, 2024, he was transferred to the RCLEC for his
protection. Plaintiff has failed to show that any defendant responded unreasonably in response to
any risk to his safety.
Plaintiff also alleges that he was placed in protective custody and disciplinary segregation
without being afforded a due process hearing to contest the disciplinary sanctions. However,

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§ 1983 is not applicable to “challenges to punishments imposed as a result of prison disciplinary
infractions,” unless the disciplinary conviction has already been invalidated.

Cardoso v.

Calbone, 490 F.3d 1194, 1199 (10th Cir. 2007). The Supreme Court has made clear that “a state
prisoner’s claim for damages is not cognizable under 42 U.S.C. § 1983 if ‘a judgment in favor of
the plaintiff would necessarily imply the invalidity of his conviction or sentence,’ unless the
prisoner can demonstrate that the conviction or sentence has previously been invalidated.”
Edwards v. Balisok, 520 U.S. 641, 643 (1997) (quoting Heck v. Humphrey, 512 U.S. 477, 487
(1994)). This rule applies not only when the prisoner challenges his conviction but also when he
challenges punishments imposed as a result of prison disciplinary infractions. Balisok, 520 U.S.
at 648.
The Court’s MOSC provided that “[i]f Plaintiff does not file an amended complaint
within the prescribed time that cures all the deficiencies discussed herein, this matter will be
decided based upon the current deficient Complaint and may be dismissed without further notice
for failure to state a claim.” (Doc. 5, at 20.) Plaintiff’s Amended Complaint fails to cure the
deficiencies set forth in the MOSC and fails to state a claim for relief.
IT IS THEREFORE ORDERED BY THE COURT that this matter is dismissed for
failure to state a claim.
IT IS SO ORDERED.
Dated June 5, 2024, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE

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