United States District Court, D. Kansas
MEMORANDUM AND ORDER
SAM A. CROW, Senior District Judge.
This pro se civil complaint was filed pursuant to 42 U.S.C. § 1983 by an inmate of the Hutchinson Correctional Facility, Hutchinson, Kansas (HCF). The court screened the complaint and entered a Memorandum and Order setting forth deficiencies found therein. Plaintiff was required to show good cause why this action should not be dismissed on account of those deficiencies. The matter is before the court upon plaintiff's Response. Having considered all materials in the file the court concludes, for reasons stated herein and in the court's prior Memorandum and Order, that this action must be dismissed for failure to show personal participation in the alleged incident by either defendant and for failure to state sufficient facts to establish deliberate indifference on the part of either defendant.
ALLEGATIONS AND CLAIMS
In its prior Memorandum and Order, the court set forth plaintiff's allegations and claims. Plaintiff makes no objections or corrections to the court's summary. In his Response he alleges additional facts. Thus, plaintiff now alleges the following facts in support of his claims. At the time this claim arose, plaintiff was a "seg inmate" classified as "Other Security Risk" and housed in A3 cellhouse in the Special Management Unit where "they were also housing population inmates." On September 21, 2012, he was involved in a fight in A3 cellhouse with a population inmate. Both inmates were subdued, restrained, and escorted to the original segregation unit. The other inmate was taken into the sickcall room to be cleared, and plaintiff was put in the shower while waiting to be cleared. Msgt. Widner decided to take plaintiff to the population clinic, and he and other officers went in escort. Plaintiff was in cuffs and bellychains. Halfway down the rotunda, plaintiff was aggressively approached and attacked by another inmate while he was under the supervision of Msgt. Widner. Widner failed to prevent this attack. Plaintiff fell and "was directly maced, " which made his situation even more unsafe because he could not see from where the hits to his head and face were coming. He was maced along with the other inmates when Widner broke up the incident. The incident was contained after "about 2-3 min." Plaintiff was put in a shower to wash off the mace and placed in a cell. Pictures were taken of his head and face.
Plaintiff filed a grievance regarding this incident, and the Unit Team responded that when "officers need to take you to the clinic, they are allowed to do so;" that "Officer Widner used his OC Spray to try to contain the situation;" and Widner "was within the scope of his job by taking you to the general population clinic and by his use of the OC spray." Complaint, Doc. 1-1. The Secretary of Corrections affirmed this decision.
Plaintiff has correctly asserted that the Eighth Amendment requires prison officials to protect prisoners from violence at the hands of other prisoners. He claims that defendants Cline and Roberts "should have had policy and or procedures in place" so the incident that occurred while he was being escorted in restraints "should never have happened to (him)." He seeks a declaration that his constitutional rights were violated, and compensatory damages in the amount of $15, 000 from each defendant.
In his Response, plaintiff adds allegations regarding injuries from the incident and medical treatment. Following this incident, plaintiff suffered from "shoulder and head trauma" and "was in severe pain."
In his Response, plaintiff adds the following allegations of other incidents. A couple months before this incident, "similar assaults and fights were happening on a consistent basis." This made "the Administration change yards between the groups" that were fighting each other, which shows "they were well aware of the problem;" and this would have made Sam Cline, as HCF Warden, aware. On "another occasion" the officer left an inmate in cuffs on "our yard" that was using the computer and an inmate from population on the other side of A3 cellhouse attacked him. That inmate tried to defend himself; the officer heard the commotion, returned and broke it up; but the handcuffed inmate, like plaintiff, was unnecessarily maced when he was "only trying to fend off attacker." "Those two incidents" made "them move population out of A3 cellhouse" because "they" realized there were problems between the two groups involved in the fights. Therefore, the staff at HCF "was well aware of this issue." Cline was "well aware" because "Administration did not wanna (sic) let us out in population due to... placing us in danger." "Sam Cline being the warden failed to provide proper caution as to our risk of being attacked."
Because Mr. Galicia-Hernandez is a prisoner, the court is required by statute to dismiss the complaint or any portion thereof at any time that the court determines it is frivolous or fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(B).
Plaintiff names Sam Cline, Warden, HCF and Ray Roberts, Secretary of Corrections, as the only defendants. In its prior Memorandum and Order, the court first noted that personal participation is an essential element of a civil rights claim and found that plaintiff utterly failed to describe any act or omission on the part of either defendant showing their personal involvement in the alleged assault incident. The U.S. Supreme Court recently reaffirmed in Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) that:
Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior. (Citations omitted). Because vicarious liability is inapplicable to... § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.
Id. In his Response, plaintiff concedes that "Cline and Roberts did not commit the 8th Amendment violation." Nevertheless, he continues to argue that these two defendants "became responsible for it in the course of they (sic) supervisory responsibilities." As plaintiff was advised in the court's prior Memorandum and Order, prison officials may not be held liable based solely upon a theory of respondeat superior. Instead, "the defendant's role must be more than one of abstract authority over individuals who actually committed a constitutional violation." Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008). Plaintiff's conclusory allegations and vague generalizations are simply insufficient to show the requisite personal participation in the alleged constitutional violation by either named defendant, including his claims that the "Administration" should have known of "problems" because of (inadequately-described) "similar assaults and fights" and that changes made after the assault upon him in the rotunda and the assault on an undisclosed date upon another inmate in the A3 cellhouse somehow establish Cline's prior awareness "of the problem." An "affirmative link" must exist between the constitutional deprivation and "either the supervisor's personal participation, his exercise of control or direction, or his failure to supervise." Id. at 1527. Plaintiff alleges no facts to establish such a link between defendants and the person or persons who actually made the decisions and took action during the assault incident. This link might also be shown if "a supervisor has established or utilized an unconstitutional policy or custom." Id. at 1528. However, plaintiff makes no attempt to describe an unconstitutional policy or custom that was established by either Warden Cline or Secretary Roberts. His bald suggestion in his complaint that "Administration" should have had a policy to prevent what happened to him is nothing more than a conclusory statement. As plaintiff was informed, the court will not supply additional factual allegations to round out his complaint or construct a legal theory on a his behalf. Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). 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). The court repeats that the fact that defendants affirmed the denial of plaintiff's grievance after this incident is insufficient to render either defendant liable for the assault.
The court concludes that plaintiff has not alleged facts to establish the requisite element of personal participation on the part of either defendant Warden Cline or defendant Secretary Roberts in the alleged unconstitutional failure to protect him from the assault by two inmates that occurred on September 21, 2012, while he was being escorted through the rotunda by Officer Widner. His legal arguments and citations in his Response, which are ...