Cribbs v. Friend

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS JASON PHILLIP CRIBBS, Plaintiff, v. CASE NO. 20-3150-SAC KEVIN FRIEND, Sheriff, Linn County, Defendant. MEMORANDUM AND ORDER TO SHOW CAUSE Plaintiff Jason Phillip Cribbs, a prisoner at the Linn County Jail in Mound City, Kansas, brings this pro se civil rights action pursuant to 42 U.S.C. § 1983 . Plaintiff proceeds in forma pauperis. For the reasons discussed below, Plaintiff is ordered to show cause why his complaint should not be dismissed. I. Nature of the Matter before the Court Plaintiff’s complaint (ECF No. 1) alleges his constitutional rights were violated in February of 2018 when he was taken to the hospital for an injury to the second toe of his right foot. After being treated, the hospital staff prescribed weekly follow up visits for wound care. He was not taken for the follow up care and the toe became infected and had to be removed. Plaintiff also complains that the jail does not have a law library and contains a large amount of black mold, which poses “a severe risk” to his health. Plaintiff names as defendant Kevin Friend, the current sheriff of Linn County. He claims violation of his rights under the Eighth and Fifth Amendments and seeks “monetary” damages in the amount of $15 million and punitive damages, also in the amount of $15 million. 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 employee of such entity to determine whether summary dismissal is appropriate. 28 U.S.C. § 1915A(a). Additionally, with any litigant, such as Plaintiff, who is proceeding in forma pauperis, the Court has a duty to screen the complaint to determine its sufficiency. See 28 U.S.C. § 1915 (e)(2). Upon completion of this screening, the Court must dismiss any claim that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b), 1915(e)(2)(B). “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, 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 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 A. Count I: Toe Count I of Plaintiff’s complaint is subject to dismissal because it is untimely. The statute of limitations for § 1983 claims “is drawn from the personal-injury statute of the state in which the federal district court sits.” Mondragon v. Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008). The Court therefore applies Kansas's two-year statute of limitations for personal injury actions. See Kan. Stat. Ann. § 60–513(a)(4); Brown v. Unified School Dist. 501, Topeka Public Schools, 465 F.3d 1184, 1188 (10th Cir. 2006) (citations omitted). While state law governs the length of the limitations period and tolling issues, “the accrual date of a § 1983 cause of action is a question of federal law.” Wallace v. Kato, 549 U.S. 384, 388 (2007). Under federal law, the claim accrues “when the plaintiff has a complete and present cause of action.” Id. at 388 (internal quotation marks and citation omitted). In other words, “[a] § 1983 action accrues when facts that would support a cause of action are or should be apparent.” Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006) (internal quotation marks and citation omitted). “Since the injury in a § 1983 case is the violation of a constitutional right, such claims accrue when the plaintiff knows or should know that his or her constitutional rights have been violated.” Smith v. City of Enid ex rel. Enid City Commission, 149 F.3d 1151, 1154 (10th Cir. 1998) (quotation marks and citations omitted). It plainly appears from the face of the complaint that Count I is subject to dismissal as barred by the applicable two-year statute of limitations. Plaintiff filed his complaint on May 29, 2020. It appears Plaintiff’s claim accrued in February of 2018, more than two years prior to the filing date of this complaint. Consequently, unless tolling applies, Plaintiff’s claim is untimely. In certain limited circumstances, the statute of limitations may be subject to tolling. Because the Court applies the Kansas statute of limitations in § 1983 cases, it also looks to Kansas law for questions of tolling. Fratus v. Deland, 49 F.3d 673, 675 (10th Cir. 1995). The plaintiff has the burden of establishing a factual basis for tolling the limitations period. Aldrich v. McCulloch Props., Inc., 627 F.2d 1036 , 1041 n. 4 (10th Cir. 1980); Slayden v. Sixta, 825 P.2d 119, 122 (Kan. 1992). Generally, a Kansas court cannot extend the limitation period except as provided by statute. McClain v. Roberts, 304 P.3d 364 (Table), 2013 WL 3970215 , *3 (Kan. App. Aug. 2, 2013), citing Underhill v. Thompson, 158 P.3d 987, 995 (Kan. App. 2007). Kansas law provides that a prisoner is presumed to be a person under a legal disability so that the limitation period would be tolled until the disability is removed (here, when the person is released). K.S.A. 60–515(a). However, the statute further provides that “if a person imprisoned for any term has access to the court for purposes of bringing an action, such person shall not be deemed to be under legal disability.” K.S.A. 60–515(a). Therefore, to be entitled to tolling under K.S.A. 60-515(a), a prisoner must have been denied access to the courts such that he could not file within the limitation period, something that Mr. Cribbs has not claimed. McClain, 2013 WL 3970215 at *3, citing see Bulmer v. Bowling, 4 P.3d 637, 639 (Kan. App. 2000); Parker v. Bruce, 109 F. App’x 317, 319 (10th Cir. 2004) (unpublished opinion). Kansas also recognizes the doctrine of equitable tolling but seems to apply it only where defendants did “something that amounted to an ‘affirmative inducement to plaintiff to delay bringing the action.’” Friends University v. W.R. Grace & Co., 608 P.2d 936, 941 (Kan. 1980) (quoting Rex v. Warner, 332 P.2d 572 (Kan. 1958)). The record fails to support a claim that Defendant affirmatively induced Plaintiff into delaying his filing of this suit. In addition, at least one Kansas appellate court has applied the equitable tolling standard for habeas cases in the context of a § 1983 action. See McClain, 2013 WL 3970215 at *3. That standard provides for equitable tolling where a litigant has been pursuing his rights diligently and some extraordinary circumstance prevented timely filing. McQuiggin v. Perkins, 569 U.S. 383, 391 (2013) (quoting Holland v. Florida, 560 U.S. 631 (2010)). Plaintiff does not demonstrate diligence or any extraordinary circumstance that would entitle him to equitable tolling of the limitation period. A district court may dismiss a complaint filed by an indigent plaintiff if it is patently clear from the allegations as tendered that the action is barred by the statute of limitations. Fogle, 435 F.3d at 1258 . Because Plaintiff did not file his claim within the two-year limitation period and because Plaintiff does not establish a factual basis for tolling the limitation period, Count I of Plaintiff’s complaint is subject to dismissal as barred by the statute of limitations. B. Count II: Black Mold Plaintiff alleges that the Linn County Jail “contains a large amount of black mold.” ECF No. 1, at 3. In the Tenth Circuit, a pretrial detainee's due process rights parallel that of an inmate's Eight Amendment rights. Lopez v. LeMaster, 172 F.3d 756 , 759 n. 2 (10th Cir. 1999) (citing Bell v. Wolfish, 441 U.S. 520 , 535 n. 16 (1979)). 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 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 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). Plaintiff’s allegations regarding mold are sparse and completely conclusory. Plaintiff does not claim the mold has been determined to be toxic “black mold,” as opposed to mold that is simply black in color. See Silsby v. Sloan, 2019 WL 2107321 , *3 (N.D. Ohio May 14, 2019). Plaintiff does not state how long he has been exposed to the alleged conditions. He does not describe the extent of the mold or whether any efforts have been made to remove it. A “bare allegation of [the presence of] mold ... does not create a reasonable inference regarding the sort of threat to [a plaintiff’s] mental or physical well being which is necessary for violation of the Eighth Amendment.” Cox v. Grady Cty. Detention Center, 2008 WL 1925052 , at *3–4 (W.D. Okla. April 29, 2008) (citing Dittmeyer v. Whetsel, 91 F. App'x 111 (10th Cir. Feb. 11, 2004)). Plaintiff’s allegations do not constitute the types of conditions that violate the Eighth Amendment; “extreme deprivations are required.” Hudson v. McMillian, 503 U.S. 1, 9 (1992). The mere presence of mold does not suggest the Linn County Jail contravenes society’s “evolving standards of decency” so as to constitute a violation of the Eighth Amendment. Rhodes, 452 U.S. at 346 . Count II of the complaint is subject to dismissal for failure to state a claim. C. Count III: Law Library Plaintiff claims the Linn County Jail has no law library or materials to perform legal research. In order to bring a civil rights claim under § 1983 for the denial of a right of access to the courts, Plaintiff must allege an actual injury or an imminent actual injury because of the loss or frustration of a nonfrivolous legal claim. See Lewis v. Casey, 518 U.S. 343, 351-53 (1996)(a prisoner does not have “an abstract, freestanding right to a law library or legal assistance” and therefore “cannot establish relevant actual injury simply by establishing that his prison’s law library or legal assistance program is subpar in some theoretical sense”); Brooks v. Colorado Dept. of Corrections, 762 F. App’x 551 , 558-59 (10th Cir.) cert. denied, 140 S. Ct. 207 (2019)(general allegations of interference with ability to bring legal claims do not suffice to show denial of access to the courts); McBride v. Deer, 240 F.3d 1287, 1290 (10th Cir. 2001)(plaintiff must do more than make a conclusory allegation that library and resources were inadequate). Here, Plaintiff does not allege facts plausibly describing a nonfrivolous legal claim which has been frustrated or impeded by a lack of access to courts or which may be lost by such a lack of access. Simmons v. Kline, No. 20-3096-SAC, 2020 WL 3057886 , at *5 (D. Kan. June 9, 2020). Count III is therefore subject to dismissal. IV. Response Required For the reasons stated herein, Plaintiff’s complaint is subject to dismissal under 28 U.S.C. §§ 1915A(b) and 1915(e)(2)(B) for failure to state a claim upon which relief may be granted. Plaintiff is therefore required to show good cause why his complaint should not be dismissed. Plaintiff is warned that his failure to file a timely response may result in the complaint being dismissed for the reasons stated herein without further notice. IT IS THEREFORE ORDERED that Plaintiff is granted to and including August 17, 2020, in which to show good cause, in writing, why his complaint should not be dismissed for the reasons stated herein. IT IS SO ORDERED. DATED: This 17th day of July, 2020, at Topeka, Kansas. s/_Sam A. Crow_____ SAM A. CROW U.S. Senior District Judge