Johnson v. Saline County Jail

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS SHANTELL ROBERT JOHNSON, Plaintiff, v. CASE NO. 23-3233-JWL SALINE COUNTY JAIL, et al., Defendants. MEMORANDUM AND ORDER TO SHOW CAUSE Plaintiff Shantell Robert Johnson 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. 1. Nature of the Matter before the Court Plaintiff brings this pro se civil rights complaint under 42 U.S.C. § 1983 . Plaintiff is housed at the Saline County Jail in Salina, Kansas (“SCJ”). The Court grants Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 2). Plaintiff alleges in his Complaint that on or about August 20, 2023, Plaintiff and inmate Quincy Williams “had a conversation” regarding the phone. (Doc. 1, at 2.) Plaintiff alleges that Plaintiff took off his glasses “as a precaution” and reached for the phone. Id. Plaintiff alleges that Williams struck Plaintiff in the right eye breaking Plaintiff’s orbital bone and giving Plaintiff a concussion. Id. Plaintiff alleges that Williams has stated to Plaintiff and other inmates that he hears voices in his head and takes medication for it. Id. Plaintiff alleges that Williams talks to himself and at times spits his medication in the toilet. Id. at 6 . Plaintiff alleges a failure to protect. Plaintiff claims that the SCJ has an obligation to screen inmates for mental illness before placing them in general population. Id. at 5 . Plaintiff alleges that the SCJ knew Williams took medication for voices in his head and yet they still placed him in general population. Id. Plaintiff names as defendants: the SCJ; (fnu) Hylton, Lieutenant at SCJ; and (fnu) Wallace, Corporal at SCJ. Plaintiff alleges that Lt. Hylton is in charge of security at the SCJ, and Cpl. Wallace is in charge of housing placements. Id. at 6 . Plaintiff seeks compensatory and punitive damages. Id. at 8 . Plaintiff states that he did not seek administrative remedies “because the assault has already taken 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, 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 ‘entitle[ment] 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 Plaintiff alleges that Defendants failed to protect him while he was housed at the SCJ. Plaintiff names the SCJ as a defendant. “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) (emphasis added). Prison and jail facilities are not proper defendants because none is a “person” subject to suit for money damages under § 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 66, 71 (1989); Clark v. Anderson, No. 09-3141-SAC, 2009 WL 2355501 , at *1 (D. Kan. July 29, 2009); see also Aston v. Cunningham, No. 99–4156, 2000 WL 796086 at *4 n.3 (10th Cir. Jun. 21, 2000) (“a detention facility is not a person or legally created entity capable of being sued”); Busekros v. Iscon, No. 95-3277-GTV, 1995 WL 462241 , at *1 (D. Kan. July 18, 1995) (“[T]he Reno County Jail must be dismissed, as a jail is not a ‘person’ within the meaning of § 1983.”). Plaintiff’s claims against the SCJ are subject to dismissal. Plaintiff alleges that Defendants Hylton and Wallace failed to protect him by placing a mentally ill inmate in general population. 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 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); see also Hooks v. Atoki, 983 F.3d 1193 , 1203–04 (10th Cir. Dec. 29, 2020) (declining to extend Kingsley’s exclusively objective standard for pretrial detainees’ excessive force claims to Fourteenth Amendment deliberate indifference claims, including those based on failure to prevent jailhouse violence). “[P]rison officials have a duty to ‘provide humane conditions of confinement,’ including ‘tak[ing] reasonable measures to guarantee the safety of . . . inmates.’” Hooks, 983 F.3d at 1205 (quoting Requena v. Roberts, 893 F.3d 1195, 1214 (10th Cir. 2018) (alteration and omission in original) (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)). “This duty includes ‘a duty to protect prisoners from violence at the hands of other prisoners.’” Id. (citations omitted). However, “prison officials who act reasonably cannot be found liable.” Id. (citing Farmer, 511 U.S. at 845 ). 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”); see also 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”)). A defendant’s subjective intent is also inherent in the concept of deliberate indifference. Id. at 1203. “[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.” Id. at 1204 (citing Strain, 977 F.3d at 993 ). 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 does not provide supporting facts regarding whether or not anyone was aware that the other inmate was a danger to Plaintiff. Plaintiff states that the other inmate was mentally ill, talked to himself and claimed he heard voices, and was taking medication. Nothing suggests that the inmate was violent or otherwise posed a safety threat to the other inmates. Plaintiff’s allegations suggest that the assault occurred due to “a conversation” about use of the phone. Plaintiff has failed to allege sufficient facts to show that a defendant was both aware of facts from which the inference could be drawn that a substantial risk of serious harm existed, and that they also drew the inference. Plaintiff should show good cause why his failure to protect claim should not be dismissed for failure to state a claim. Plaintiff alleges that he did not exhaust his administrative remedies because the assault had already occurred. However, an inmate is required by the Prison Litigation Reform Act (“PLRA”) to exhaust all available prison administrative remedies before filing a complaint in federal court. Section 1997e(a) expressly provides: No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a); see also Little v. Jones, 607 F.3d 1245, 1249 (10th Cir. 2010) (stating that under the PLRA “a prisoner must exhaust his administrative remedies prior to filing a lawsuit regarding prison conditions in federal court”) (citations omitted). This exhaustion requirement “is mandatory, and the district court [is] not authorized to dispense with it.” Beaudry v. Corrections Corp. of Am., 331 F.3d 1164 , 1167 n. 5 (10th Cir. 2003), cert. denied, 540 U.S. 1118 (2004); Little, 607 F.3d at 1249 . IV. Motion for Appointment of Counsel Plaintiff filed a motion for appointment of counsel, arguing that he is unable to afford counsel, his imprisonment will limit his ability to litigate, the issues involved are complex, he has limited access to the law library, he has limited knowledge of the law, and the case will likely involve conflicting testimony and the cross-examination of witnesses. (Doc. 3.) 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 and/or Amended Complaint Required Plaintiff is required to show good cause why his 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.1 Plaintiff is given time to file a complete and proper amended complaint in which he (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 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 will be decided based upon the current deficient Complaint and may be dismissed without further notice for failure to state a claim. IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 2) is granted. Plaintiff remains obligated to pay the remainder of the $350.00 filing fee. The agency having custody of Plaintiff shall forward payments from Plaintiff’s account in installments calculated under 28 U.S.C. § 1915 (b)(2). The Clerk is to transmit 1 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 (23-3233-JWL) at the top of the first page of his amended complaint and he 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 he 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. a copy of this order to Plaintiff, to the finance office at the institution where Plaintiff is currently confined, and to the Court’s finance office. IT IS FURTHER ORDERED that Plaintiff’s motion for appointment of counsel (Doc. 3) is denied without prejudice. IT IS FURTHER ORDERED that Plaintiff is granted until November 20, 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 FURTHER ORDERED that Plaintiff is also granted until November 20, 2023, 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 October 23, 2023, in Kansas City, Kansas. S/ John W. Lungstrum JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE