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Gilbert v. Steed

November 6, 2008


The opinion of the court was delivered by: Carlos Murguia United States District Judge


Plaintiff Scott A. Gilbert, a former prisoner in the Sedgwick County Detention Facility, brings this § 1983 action pro se, claiming that defendants Gary Steed-Sedgwick County Sheriff-and Tim McCarty, Deputy Ewing, and Lt. W. Moore-correctional officers/deputies- violated his First Amendment right to free exercise of religion and his Eighth Amendment right to be free from cruel and unusual punishment. Specifically, plaintiff alleges that from June 2005 through October 2005, defendant Moore ordered him to be segregated from other inmates while eating his kosher diet and that on August 21, 2005, defendants Ewing and McCarty used excessive force and broke his hand.


Defendants ask the court to dismiss plaintiff's claims under Federal Rule of Civil Procedure 12(b)(6). This court will grant a Rule 12(b)(6) motion to dismiss only when the factual allegations fail to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). While the factual allegations need not be detailed, the claims must set forth entitlement to relief "through more than labels, conclusions, and a formulaic recitation of the elements of a cause of action." In re Motor Fuel Temperature Sales Practices Litig., 534 F. Supp. 2d 1214, 1216 (D. Kan. 2008). The allegations must contain facts sufficient to state a claim that is plausible, rather than merely conceivable. Id.

"All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true." Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984). The court construes any reasonable inferences from these facts in favor of plaintiff. Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006). The issue in reviewing the sufficiency of a complaint is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support his claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982).

Where, as here, the plaintiff proceeds pro se, the court construes the pro se pleadings liberally. Hall v. Doering, 997 F. Supp. 1445, 1451 (D. Kan. 1998) (citing Hughes v. Rowe, 449 U.S. 5, 9--10 (1980)). On the other hand, a plaintiff's pro se status does not relieve him from complying with this court's procedural requirements. Barnes v. United States, 173 F. App'x 695, 697 (10th Cir. 2006) (citations omitted); see also Santistevan v. Colo. Sch. of Mines, 150 F. App'x 927, 931 (10th Cir. 2005) (holding that a pro se litigant must follow the same rules of procedure as other litigants).


A. First Amendment Free Exercise Claim

1. Statute of Limitations

Defendants claim that plaintiff's Count 1 allegations from June 2005 to August 19, 2005 are barred by the two-year statute of limitations. Plaintiff agrees that the two-year limit applies, but argues that tolling is appropriate while he pursued his administrative remedies. "[E]very circuit to address the issue has held that the filing of a mandatory administrative grievance tolls the statute of limitations for § 1983 and Bivens claims." Roberts v. Barreras, 484 F.3d 1236, 1241 (10th Cir. 2007) (citation and internal quotation marks omitted). Plaintiff alleges that he pursued administrative remedies before bringing suit. The facts currently before the court are insufficient to determine whether plaintiff "pursued administrative remedies such that sufficient tolling occurred to enable [him] to avoid a statute of limitations bar." Leal v. Ga. Dep't of Corr., 254 F.3d 1276, 1280 (11th Cir. 2001). Because the statute of limitations defense is not clear from the face of the complaint or based on adequately developed facts, the court cannot determine at this time whether a portion of plaintiff's claims are barred by the statute of limitations. Defendants' motion is denied on this issue.

2. Personal Participation

Defendants contend that the court should dismiss Count 1 against all defendants but defendant Moore because plaintiff did not allege their personal participation. In a civil rights action, personal participation is an essential allegation. Bennett v. Passic, 545 F.2d 1260, 1262--63 (10th Cir. 1976). In addition, the plaintiff must allege an affirmative link between the alleged violation and each defendant's participation or failure to act/supervise. Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993).

The complaint mentions only defendant Moore in the allegations regarding the First Amendment. Plaintiff makes additional allegations in his brief regarding the involvement of the other defendants, but not in his complaint. A brief in response to a motion to dismiss is not the proper place to bolster ...

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