United States District Court, D. Kansas
MARCUS W. KELLEY, JR., Plaintiff,
RENDA CRAFT, Defendants.
MEMORANDUM AND ORDER
MURGUIA United States District Judge
case is before the court on the motion to dismiss filed by
Rex H. Pryor and Raymond Roberts (Doc. 51). Plaintiff did not
timely file a response to the motion to dismiss, and the
court entered an order to show cause why the motion should
not be granted as uncontested. Plaintiff failed to timely
respond to the order to show cause. The court therefore
considers the merits of defendants' uncontested motion to
Marcus W. Kelley, Jr., an inmate at Lansing Correctional
Facility (“LCF”), filed this case pro se,
alleging constitutional violations under 42 U.S.C. §
1983 and violations of the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42
U.S.C. § 2000cc-1. Generally, plaintiff claims that
defendants' recognition and classification of his faith
as a form of Protestantism-and denial of a segregated callout
for those of his Apostolic or Pentecostal faith-violated his
rights under the First and Fourteenth Amendments. Plaintiff
seeks money damages and an injunction allowing a segregated
with respect to defendants Pryor and Roberts, plaintiff
claims that these defendants failed to intervene or
investigate when they received his grievances. At all
relevant times, defendant Pryor was the warden of LCF and
defendant Roberts was the Secretary of the Kansas Department
of Corrections (“KDOC”).
Pryor and Roberts argue that they are entitled to qualified
immunity because plaintiff failed to allege a violation of
his constitutional rights. Specifically, defendants claim
that plaintiff only alleges that they failed to properly
address his grievances related to religious practices.
According to defendants, these allegations are insufficient
to show their personal participation in the allegedly
immunity protects government officials from individual
liability under § 1983 unless their conduct
“violates ‘clearly established statutory or
constitutional rights of which a reasonable person would have
known.'” Schroeder v. Kochanowski, 311
F.Supp.2d 1241, 1250 (D. Kan. 2004) (citing Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)); Wilson v.
Layne, 526 U.S. 603, 609 (1999) (noting that qualified
immunity analysis is identical under 42 U.S.C. § 1983
and Bivens). When a defendant raises qualified
immunity, the plaintiff must show that (1) the
defendant's actions violated a constitutional or
statutory right and (2) the right violated was clearly
established at the time of the conduct in issue.
Schroeder, 311 F.Supp.2d at 1250. The court may
consider either prong of the qualified immunity test first.
Panagoulakos v. Yazzie, 741 F.3d 1126, 1129 (10th
Cir. 2013); see also Pearson v. Callahan, 555 U.S.
223, 236 (2009).
court first decides whether plaintiff has alleged a
deprivation of a constitutional right. Eaton v.
Meneley, 379 F.3d 949, 954 (10th Cir. 2004). Individual
liability under § 1983 must be based on personal
involvement. Gallagher v. Shelton, 587 F.3d 1063,
1069 (10th Cir. 2009). “[P]ersonal participation in the
specific constitutional violation complained of is
essential.” Henry v. Storey, 658 F.3d 1235,
1241 (10th Cir. 2011) (citation omitted). And the law is
clear that denial of a grievance is insufficient to
constitute personal participation in a constitutional
violation. Gallagher, 587 F.3d at 1069; see also
Stewart v. Beach, 701 F.3d 1322, 1328 (10th Cir. 2012).
Moreover, plaintiff must allege more than that a defendant
was a supervisor or in charge at the jail. A defendant cannot
be held liable for money damages in a civil rights action
based solely upon his or her supervisory capacity under the
theory of respondeat superior. Trujillo v. Williams,
465 F.3d 1210 (10th Cir. 2006); Mitchell v. Maynard,
80 F.3d 1433, 1441 (10th Cir. 1996); Olson v.
Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993).
plaintiff fails to state a constitutional violation. He
claims that defendants Pryor and Roberts hold supervisory
positions and violated his First and Fourteenth Amendment
rights by neglecting to do anything about the grievances and
religious accommodation request filed by plaintiff. (Doc. 48
at 15-19). This allegation is insufficient to allege an
“affirmative link” between the actions of
defendants Pryor and Roberts and any clearly established
constitutional violations. Stewart, 701 F.3d at
1328; see also Dodds v. Richardson, No. 09-6157,
2010 WL 3064002, at *8-10 (10th Cir. Aug. 6, 2010) (reviewing
standards for § 1983 supervisory liability in light of
Ashcroft v. Iqbal, 556 U.S. 662 (2009); holding
stricter burden on plaintiff still requires affirmative link;
plaintiff must establish (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); Butler v. City of
Norman, 992 F.2d 1053, 1055 (10th Cir. 1993) (holding
that a supervisor is not liable under § 1983 unless an
“affirmative link” exists between the
constitutional deprivation and the supervisor's personal
also summarily state that the claims for injunctive relief
against them should be dismissed for failure to state a
claim. They do not address plaintiff's RLUIPA claims.
Although there may be grounds for dismissal of these claims,
the court will not construct the arguments for defendants,
and the court does not dismiss them at this time.
IS THEREFORE ORDERED that defendants' motion to
dismiss (Doc. 51) is granted in part. The § 1983 claims
against defendants Pryor and Roberts in their individual
capacities are dismissed. The official capacity claims, as