Waterman (ID 126456) v. Zmuda et al

Filing 8

MEMORANDUM AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted until April 7, 2025, in which to show good cause, in writing to the undersigned, why Plaintiff's Complaint should not be dismissed. Plaintiff is also granted until April 7, 2025, in which to file a complete and proper amended complaint to cure all the deficiencies. Signed by District Judge John W. Lungstrum on 03/07/25. Mailed to pro se party Brian Michael Waterman with § 1983 forms and instructions by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BRIAN MICHAEL WATERMAN,
Plaintiff,
v.

CASE NO. 24-3239-JWL

JEFF ZMUDA, et al.,
Defendants.
MEMORANDUM AND ORDER TO SHOW CAUSE
Plaintiff Brian Michael Waterman 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. Plaintiff is also given the opportunity to file an amended
complaint to cure the deficiencies.
I. Nature of the Matter before the Court
Plaintiff brings this pro se civil rights action under 42 U.S.C. § 1983.

Plaintiff is

incarcerated at the Hutchinson Correctional Facility in Hutchinson, Kansas (“HCF”). The Court
granted Plaintiff leave to proceed in forma pauperis. Plaintiff names defendants from HCF as
well as from the Lansing Correctional Facility in Lansing, Kansas (“LCF”).
Plaintiff’s allegations relate to a torn shoulder muscle that Plaintiff claims he has had for
two and a half years. (Doc. 1, at 2.) Plaintiff claims that Jeff Zmuda has not held Centurion to
its contract under “ACA/NCCHC standards under IMPP 16-1010 Access to and Availability of
health care services.” Id. at 2. Plaintiff alleges that Centurion has not ordered physical therapy
since December 2023. Id.
Plaintiff’s Complaint contains one count. As Count I, Plaintiff claims deliberate
indifference to his serious medical needs and cruel and unusual punishment. Id. at 4. Plaintiff
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alleges that Dr. Wilson or John Doe denied physical therapy after an “orthopedic” [sic] ordered
physical therapy twice a week for a month. Id. at 4–5. Plaintiff alleges that he was only given
one session and was “left to suffer with a torn shoulder muscle.” Id. at 5. Plaintiff alleges that
Dr. Wilson “was allowed by Centurion, HSA Jane Doe and Regional Medical director and
‘OHCC’ Executive Director of health care compliance under IMPP 16-110D.” Id. Plaintiff
claims that he has suffered daily with substantial pain, his shoulder has remained untreated for
two and a half years, and now surgery is required. Id. at 5–6. Plaintiff was told by a Dr. Wade
that he will get lock joint without surgery. Id. at 6. Plaintiff acknowledges that “shots were
administered for shoulder again . . ..” Id.
Plaintiff alleges that he is still struggling to get medical care from Centurion and the
Kansas Department of Corrections (“KDOC”). Id. Plaintiff alleges that he has re-injured his
shoulder due to being placed in a cell with a five-foot bean hole that forces him to raise his
shoulder and wrists up to be handcuffed. Id. Plaintiff alleges that he is forced to squeeze his
shoulders together. Id. Plaintiff also alleges that he was denied a mattress for over 48 hours by
UT Fox, which caused more pain and suffering. Id. Plaintiff alleges that he was given “half a
mattress that is less than an inch thick with mold on it.” Id. He alleges that he has asthma and
severe allergies, and the moldy mattress is causing him to cough. Id. Plaintiff claims he has been
laying on the mattress for over a month. Id. Plaintiff alleges that UT Koob and Master Sgt. Tair
were notified about the mattress through a Form 9, and refused to order a new one. Id.
Plaintiff names as defendants: Jeff Zmuda, Secretary of Corrections; Centurion; Melissa
Waldock, Classification; Dr. Wilson or John Doe, Doctor at LCF; Health Service Administrator
(“HSA”) Jane Doe at LCF; Regional Medical Director John Doe; Director Executive OHCC
John Doe; (fnu) Koob, Unit Team at HCF; and (fnu) Fox, Unit Team at HCF. For relief,

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Plaintiff seeks compensatory relief in the amount of $35,000.00 from Dr. Wilson, HSA Jane
Doe, Jeff Zmuda, Centurion, Executive Director, Fox, Koob, and Regional Medical Director. Id.
at 8. Plaintiff also seeks $25,000 in punitive damages, and injunctive relief as follows:
That Jeff Zmuda review my medical file and report Centurion to
the healing arts, Dr. Wilson, John Doe, Executive Director OHCC,
HSA Jane Doe at LCF, RMD John Doe for misconduct failure to
treat inmates adequately. Jeff Zmuda order a new training for all
facilities for medical. A new representative to oversee Centurion
health care to ensure contemporary standard of care under ACA
an[d] NECHC. That Centurion hire full time physical therapists
for all facilities to ensure contemporary standard of care. That I
get surgery for my right shoulder a scope and timely physical
therapy afterward.
Id. at 9.
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
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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,
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

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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
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. Official Capacity Claims
Plaintiff sues all the defendants except Centurion in both their individual and official
capacities. The Court notes that an official-capacity suit is another way of pleading an action
against the governmental entity itself. Kentucky v. Graham, 473 U.S. 159, 165 (1985). “The
Tenth Circuit has made it clear that where a claimant seeks relief against a KDOC official in his
or her official capacity, the party seeks judgment against the KDOC itself, rendering the claim as
one against the sovereign.” Jamerson v. Heimgartner, No. 5:17-3205-JAR-KGG, 2020 WL
1923074, at *10 (D. Kan. April 21, 2020) (citing Jones v. Courtney, 466 F. App’x 696, 699 –
700 (10th Cir. 2012) (collecting cases)).
The Eleventh Amendment therefore applies to any official capacity claims against a
KDOC defendant. Id. The Eleventh Amendment generally “bars federal suits against state
officers in their official capacities for money damages.” Franklin v. Kansas Dep’t of Corr., 160
F. App’x 730, 734 (10th Cir. 2005) (unpublished) (citing Edelman v. Jordan, 415 U.S. 651, 663
(1974)); see also Staples v. United States, 762 F. App’x 525, 529 (10th Cir. 2019) (unpublished)
(stating that Ҥ 1983 authorizes official-capacity claims only for injunctive relief and not for
damages”) (citing Hafer v. Melo, 502 U.S. 21, 30 (1991)). Kansas has not waived the defense of

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sovereign immunity with regard to § 1983 prisoner claims in federal courts.

Nunez v.

Heimgartner, Case No. 15-3259-EFM-DJW, 2017 WL 2264466, at *5 (D. Kan. May 24, 2017)
(citing Hunter v. Young, 238 F. App’x 336, 338 (10th Cir. 2007)). “Moreover, the Supreme
Court has held that neither states nor state officers sued in their official capacities are ‘persons’
within the meaning of 42 U.S.C. § 1983.” Franklin, 160 F. App’x at 734 (citing Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 71 (1989)). Therefore, Plaintiff’s claim for money damages
against defendants in their official capacity is subject to dismissal.
2. Centurion
Plaintiff names Centurion as a defendant. In the Tenth Circuit, “to hold a corporation
liable under § 1983 for employee misconduct, a plaintiff must demonstrate the existence of the
same sort of custom or policy that permits imposition of liability against municipalities under
Monell v. Department of Social Services, 436 U.S. 658, 694 . . . (1978).” Wishneski v. Andrade,
572 F. App’x 563, 567 (10th Cir. 2014) (unpublished) (citations omitted). A corporation may
not be held liable based upon respondeat superior because “vicarious liability is inapplicable to .
. . § 1983 suits.” Rascón v. Douglas, 718 F. App’x 587, 589–90 (10th Cir. 2017) (unpublished)
(quoting Iqbal, 556 U.S. at 676); see also Spurlock v. Townes, 661 F. App’x 536, 545 (10th Cir.
2016) (unpublished); Green v. Denning, 465 F. App’x 804, 806 (10th Cir. 2012) (unpublished)
(“An entity ‘cannot be held liable solely because it employs a tortfeasor—or, in other words, [it]
cannot be held liable under § 1983 on a respondeat superior theory.’”) (citation omitted);
Williams v. Correct Care Sols., No. 19-3075-SAC, 2019 WL 2005920, at *2 (D. Kan. May 7,
2019); Jefferson v. Aramark Corr. Servs., Case No. 17-3161-SAC, 2017 WL 6557419, at *2 (D.
Kan. Dec. 22, 2017); Livingston v. Correct Care Sols., Case No. 07-3256-SAC, 2008 WL
1808340, at *1–2 (D. Kan. Apr. 17, 2008) (stating that “[a] policy is a formal statement by the

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private corporation” and “[a] custom is a persistent, well-settled practice of unconstitutional
misconduct by employees that is known and approved by the corporation.”).
This action is subject to dismissal as against Defendant Centurion. Plaintiff must allege
facts showing a policy or a custom that caused his injury. Plaintiff has failed to allege such facts.
3. Personal Participation
Plaintiff alleges that Secretary of Corrections Jeff Zmuda has not held Centurion to its
contract “under ACA/NCCHC standards under IMPP 16-1010.” (Doc. 1, at 2.) Plaintiff alleges
that Dr. Wilson “was allowed by Centurion, HSA Jane Doe[,] and Regional Medical [D]irector
and ‘OHCC’ Executive Director of health care compliance under IMPP 16-110D.” (Doc. 1, at 5,
emphasis added.)

Plaintiff claims that the “RMD” is responsible for supervising medical

personnel. Id. Plaintiff alleges that Zmuda, Centurion, HSA, RMD, and the Executive Director,
are failing to supervise acting physicians and to analyze prisoners’ medical care. Id.
An essential element of a civil rights claim against an individual is that person’s direct
personal participation in the acts or inactions upon which the complaint is based. Kentucky v.
Graham, 473 U.S. 159, 165–66 (1985); Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011)
(“But § 1983 imposes liability for a defendant’s own actions—personal participation in the
specific constitutional violation complained of is essential.”) (citing Foote v. Spiegel, 118 F.3d
1416, 1423–24 (10th Cir. 1997) (“Individual liability under § 1983 must be based on personal
involvement in the alleged constitutional violation.”) (citation omitted)); Trujillo v. Williams,
465 F.3d 1210, 1228 (10th Cir. 2006) (“In order for liability to arise under § 1983, a defendant’s
direct personal responsibility for the claimed deprivation . . . must be established.”) (emphasis
added) (citation omitted)).

Conclusory allegations of involvement are not sufficient.

See

Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable to . . .

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§ 1983 suits, a plaintiff must plead that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.”). As a result, a plaintiff is
required to name each defendant not only in the caption of the complaint, but again in the body
of the complaint and to include in the body a description of the acts taken by each defendant that
violated plaintiff’s federal constitutional rights.
Mere supervisory status is insufficient to create personal liability. Duffield v. Jackson,
545 F.3d 1234, 1239 (10th Cir. 2008) (supervisor status is not sufficient to create § 1983
liability). An official’s liability may not be predicated solely upon a theory of respondeat
superior. Rizzo v. Goode, 423 U.S. 362, 371 (1976); Gagan v. Norton, 35 F.3d 1473, 1476 FN4
(10th Cir. 1994), cert. denied, 513 U.S. 1183 (1995). A plaintiff alleging supervisory liability
must show “(1) the defendant promulgated, created, implemented or possessed responsibility for
the continued operation of a policy that (2) caused the complained of constitutional harm, and (3)
acted with the state of mind required to establish the alleged constitutional deprivation.” Dodds
v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010), cert. denied, 563 U.S. 960 (2011). “[T]he
factors necessary to establish a [supervisor’s] § 1983 violation depend upon the constitutional
provision at issue, including the state of mind required to establish a violation of that provision.”
Id. at 1204 (citing Iqbal, 129 S. Ct. at 1949). Plaintiff’s claims against these defendants are
subject to dismissal.
In filing an amended complaint, Plaintiff should also keep in mind that the failure to
comply with IMPPs or regulations does not state a constitutional violation. Violations of state
law or prison regulations do not provide a cause of action under § 1983. Plaintiff must state a
federal constitutional violation. State statutes do not provide a basis for liability under § 1983
which only protects rights secured by the Constitution and laws of the United States. D.L. v.

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United Sch. Dist. No. 497, 596 F.3d 768, 776 (10th Cir. 2010) (finding that “Plaintiffs’ citations
to Kansas case law to support their claim . . . is unavailing, as § 1983 affords a remedy for
violations of federal law and does not ‘provide a basis for redressing violations of state law.’”)
(citation omitted).
Likewise, the violation of a prison regulation does not state a constitutional violation
unless the prison official’s conduct “failed to conform to the constitutional standard.” Porro v.
Barnes, 624 F.3d 1322, 1329 (10th Cir. 2010) (internal quotation marks omitted) (holding
prisoner must establish that violation of a prison policy necessarily stated a constitutional
violation). As the Tenth Circuit has stated:
[N]o reasonable jurist could conclude that [a plaintiff’s] claim that
prison officials deprived him of due process by violating internal
prison regulations rises to the level of a due process violation.
Prison regulations are “primarily designed to guide correctional
officials in the administration of a prison [They are] not designed
to confer rights on inmates….” Sandin v. Conner, 515 U.S. 472,
481-82, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995).
Brown v. Wyoming Dept. of Corrections, 234 F. App’x 874, 878 (10th Cir. 2007). Any claims
based on state statutes, regulations, or IMPPs, are subject to dismissal for failure to state a
constitutional violation.
4. Eighth Amendment
A. Medical Care
Plaintiff claims cruel and unusual punishment based on his medical care for his shoulder.
The Eighth Amendment guarantees a prisoner the right to be free from cruel and unusual
punishment. “[D]eliberate indifference to serious medical needs of prisoners constitutes the
‘unnecessary and wanton infliction of pain’ . . . proscribed by the Eighth Amendment.” Estelle
v. Gamble, 429 U.S. 97, 104 (1976) (citation omitted).

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Plaintiff has acknowledged that he filed a prior case in this Court based on the alleged
inadequate medical care he received after injuring his right shoulder. See Doc. 6, Doc. 6–1; see
also Waterman v. Harred, Case No. 23-3182-DDC-RES. The allegations in Case No. 23-3182
regarding inadequate care and treatment for his shoulder injury are based on his care while
housed at EDCF. See Waterman, Case No. 23-3182, Doc. 101, at 3. Case No. 23-3182 remains
pending.
In a response Plaintiff filed in his current case, he alleged that he has a new shoulder
injury that is separate from the injury involved in Case No. 23-3182. (Doc. 6, at 1.) He also
alleges that he was denied medical care at the Lansing Correctional Facility, which has left him
with an unhealed shoulder for over a year. Id. Plaintiff claims that defendants at HCF reinjured
his shoulder and denied him medical care. Id.
Although Plaintiff states that his claims in this case are based on a new injury, he
continues to argue in this case that he has been denied medical care since December 2023.
(Doc. 1, at 6.) Plaintiff alleges that Dr. Wilson or John Doe denied him physical therapy after it
was ordered by an “orthopedic” [sic].

Id. Plaintiff alleges that Dr. Wade has now informed

Plaintiff that he needs surgery. Id. Although Plaintiff claims that he now needs surgery due to
this past conduct, he does not claim that he is being denied surgery. In filing an amended
complaint, Plaintiff should not include claims that are covered in Case No. 23-3182 or rely on his
past injury or medical care that is the subject of that case.
The Court will grant Plaintiff an opportunity to file an amended complaint regarding his
Eighth Amendment medical claim. However, Plaintiff’s amended complaint should not include
any claims that are the subject of other pending cases.

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B. Mattress
Plaintiff alleges that UT Fox denied him a mattress for 48 hours and then he was given a
mattress that was less than an inch thick with mold on it. (Doc. 1, at 6.)

He argues that UT

Koob was notified through a Form 9 and Sgt. Tair, and refused to order a new mattress. Id.
Again, Plaintiff raised this same claim regarding his mattress in a prior case that is
pending before the Court. See Waterman v. Bell, Case No. 24-3220-JWL. Plaintiff names
Defendants Fox and Koob as defendants in Case No. 24-3220.1
In his amended complaint in Case No. 24-3220, he alleges that he has “a moldy and torn
mattress” and his “mattress is half gone or missing with mold in it.” Id. at Doc. 10, at 7–8.
Plaintiff claims in that case that Sgt. Tair told UT Koob that Plaintiff needed a new mattress and
he filed a Form 9 on the issue. Id. at 8. His request for relief includes injunctive relief in the
form of “all new mattresses.” Id. at 14.
In his second amended complaint in Case No. 24-3220, Plaintiff alleges that cells are
“furnished with moldy torn up mattresses causing [him] headaches, an[d] vomiting.” Id. at
Doc. 12, at 1. Plaintiff again alleges that he was given a “moldy torn up mattress” and his
request for a new one was denied. Id. at 12. He claims that Sgt. Tair told Koob that Plaintiff
needed a new mattress and Plaintiff told UTM Moore that his mattress was moldy and needed
replaced. Id. He claims that he told Bell, Fox, Koob, and Moore about his moldy mattress. Id.
Plaintiff alleges that his mattress was finally replaced on January 25, 2025. Id. In his request for
relief, he again seeks injunctive relief in the form of “all new mattresses and promptly replace
torn and moldy ones.” Id. at 16. Case No. 24-3220 is currently pending and the Court has
1

Plaintiff sought to consolidate this case with Case No. 24-3220. In denying the request, the Court noted that
Plaintiff was given an opportunity to file an amended complaint in Case No. 24-3220 and “he may include in that
amended complaint any claims that may be properly joined in that matter, there is no need for consolidation with
Case No. 24-3220.” (Doc. 5.)

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ordered a Martinez Report that is not due until March 17, 2025.
Plaintiff’s claim regarding his mattress in this case is duplicative of his claim in Case
No. 24-3220. He should not include this claim in any amended complaint that he files.
IV. Response and/or Amended Complaint Required
Plaintiff is required to show good cause why Plaintiff’s Complaint should not be
dismissed for the reasons stated herein. Plaintiff is also given the opportunity to file a complete
and proper amended complaint upon court-approved forms that cures all the deficiencies
discussed herein. To add claims, significant factual allegations, or change defendants, a plaintiff
must submit a complete amended complaint. See Fed. R. Civ. P. 15. An amended complaint is
not simply an addendum to the original complaint, and instead completely supersedes it.
Therefore, any claims or allegations not included in the amended complaint are no longer before
the court. It follows that a plaintiff may not simply refer to an earlier pleading, and the amended
complaint must contain all allegations and claims that a plaintiff intends to pursue in the action,
including those to be retained from the original complaint.
Plaintiff must write the number of this case (24-3239-JWL) at the top of the first page of
the amended complaint and must name every defendant in the caption of the amended complaint.
See Fed. R. Civ. P. 10(a). Plaintiff should also refer to each defendant again in the body of the
amended complaint, where Plaintiff must allege facts describing the unconstitutional acts taken
by each defendant including dates, locations, and circumstances. Plaintiff must allege sufficient
additional facts to show a federal constitutional violation. Plaintiff is given time to file a
complete and proper amended complaint in which Plaintiff (1) raises only properly joined claims
and defendants; (2) alleges sufficient facts to state a claim for a federal constitutional violation
and show a cause of action in federal court; and (3) alleges sufficient facts to show personal

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participation by each named defendant. If Plaintiff does not file an amended complaint within
the prescribed time that cures all the deficiencies discussed herein, this matter may be dismissed
without further notice.
IT IS THEREFORE ORDERED BY THE COURT that that Plaintiff is granted until
April 7, 2025, 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 FURTHER ORDERED that Plaintiff is also granted until April 7, 2025, in which
to file a complete and proper amended complaint to cure all the deficiencies discussed herein.
The Clerk is directed to send § 1983 forms and instructions to Plaintiff.
IT IS SO ORDERED.
Dated March 7, 2025, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE

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