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Toney v. Harrod

United States District Court, D. Kansas

October 20, 2017

MICHAEL M. TONEY, Plaintiff,
v.
GORDON HARROD, et al., Defendants.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE.

         Pro se Plaintiff Michael Toney, a prisoner incarcerated at the El Dorado Correctional Facility (“EDCF”), sued several EDCF prison officials under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). Toney alleges an array of constitutional and statutory violations related to his incarceration and seeks both injunctive relief and monetary damages. Five defendants-James Heimgartner, Robert Kelley, Randolph Johnson, Heath Austin, and Jess Quidichay, Jr. (collectively “State Defendants”)-have moved to dismiss Toney's Second Amended Complaint (Doc. 42). For the following reasons, the State Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. 49) is granted in part and denied in part.

         I. Factual and Procedural Background[1]

         Plaintiff Michael Toney initiated this lawsuit by filing his original complaint on August 31, 2015. On February 29, 2016, Toney asked for leave to file a supplemental complaint. The Court treated Toney's motion as a motion to amend the original complaint and granted it on May 11, 2016. On December 15, 2016 Toney again asked the Court for leave to file a supplemental complaint. The Court ordered Toney to condense his original complaint (Doc. 1), his amended complaint (Doc. 12), and his proposed supplemental complaint (Doc. 37) “into a single document that sets forth all of the defendants and claims.” So, on February 23, 2017, Toney filed his Second Amended Complaint (Doc. 42).

         Toney's Seconded Amended Complaint raises multiple claims against a number of EDCF prison officials for mistreatment during his incarceration. On May 11, 2016 the Court screened Toney's complaint pursuant to 28 U.S.C. § 1915A and dismissed several defendants. Along with the five defendants bringing this motion to dismiss, there are three additional defendants remaining in this suit: Dr. Gordon Harrod, (fnu) Nickelson, and (fnu) Sullivan.

         The claims against the five defendants bringing this motion can be grouped into three categories. The first category concerns Toney's meals during Ramadan 2015. The second category concerns Toney's two disciplinary hearings and subsequent punishment. The third category concerns Toney's medical treatment during his incarceration. The Court will summarize the facts according to these categories.

         A. Ramadan Meals

         Toney is a practicing Muslim. As such, every year he fasts from dawn to sunset during the Month of Ramadan. Muslim inmates at EDCF are served two meals during Ramadan-an early breakfast and a late dinner-with each meal containing larger than normal portions. Toney is kept in long-term administrative segregation and has been housed there “[a]t all time relevant to [his] complaint.” For years, EDCF practice was to serve breakfast during Ramadan to Muslim prisoners before non-Muslim prisoners. However, on the first day of Ramadan 2015 that changed for the prisoners in administrative segregation. On June 18, 2015, EDCF officers refused to serve Toney breakfast before the other prisoners, and by the time Toney received his food he had already begun his morning fast.

         The officer serving breakfast told Toney that Muslim prisoners “only needed to be fed “before sunrise.” Toney contends that Islam requires he begin his fast at “dawn, ” which is approximately one and a half hours before sunrise. On June 20, 2015, Toney explained this difference to EDCF Lieutenant Jess Quidichay by filing a “form-9.” On June 29, 2015, Quidichay responded in writing that “procedure dictates you receive your meal prior to sunrise or before daylight.” On July 28, 2015, Toney appealed his grievances to the prison warden, James Heimgartner. Months later, Toney complained to Heimgartner again, this time informally and in person.

         Ramadan began June 18, 2015 and lasted for 30 days. During those 30 days Toney's breakfast was served after dawn all but 3-5 days, and Toney abstained from eating breakfast any day the meal was delivered late. Toney believes he lost “a considerable amount of weight- between 10-15 pounds” during Ramadan 2015. Toney admits, however, he protested his meals coming late by going on a three-day hunger strike from June 24-27, 2015. Over the course of Ramadan, Toney experienced headaches, dizziness, low energy, weakness, and disrupted sleep. He also believes a lack of nutrition aggravated his preexisting high-blood pressure.

         B. Disciplinary Hearings

         On May 20, 2016, Toney was cited for insubordination and disrespect for calling prison officials profane names. Six days later, defendant Robert Kelley presided over Toney's disciplinary hearing by phone. Toney alleges that Kelley abruptly discontinued the phone call after Toney denied the allegations and asked to call witnesses. Later, the hearing was continued without Toney present. Defendant Heath Austin was assigned to represent Toney's interests. Kelley found Toney guilty and assigned him a $5 fine and five days in disciplinary segregation. The decision was upheld on administrative appeal. Toney alleges Kelley denied him procedural due process by not allowing him to call witnesses. He also alleges Austin violated procedural due process by inadequately representing his interests.

         On June 30, 2015 Toney faced more disciplinary charges after being cited for disruptive behavior in violation of K.A.R. 44-12-318. Defendant Johnson conducted the disciplinary hearing, found Toney violated the regulation, and assigned Toney a $5 fine and seven days in disciplinary segregation. The decision was upheld on administrative appeal. Toney argues Johnson found him guilty without justification.

         C. Medical Treatment

         Beginning around November 2013, Toney suffered from rectal pain and bleeding whenever he had a bowel movement. Toney was examined by a member of Corizon Health Services, Inc (“Corizon”)-a private company providing health services to EDCF. Here, Toney was diagnosed with hemorrhoids and was given a cream to assist with the pain. Toney continued to experience pain and bleeding and returned to Corizon dozens of times. Toney was given creams, antibiotics, suppositories, steroids, stool softeners and laxatives to alleviate his symptoms. Corizon also conducted a colonoscopy and stool sample analysis to assist in diagnosing Toney's condition. Unrelated to Corizon's treatment plan, Toney was also taking fiber tablets, which may have exacerbated his pain and bleeding.

         Most of Toney's medical visits were with nurse Nickelson. But on June 4, 2015, Toney was seen by Dr. Harrod for a rectal examination. Dr. Harrod concluded Toney may need surgery and referred him to an outside specialist. The specialist determined that Toney had rectal fissures and recommended surgery. Toney claims his surgery has not been scheduled.

         Toney filed an administrative grievance on June 4, 2015 to Angela Sirmans, Corizon's Assistant Director of Nursing. The grievance stated that Corizon's medical staff was negligent when they misdiagnosed his physical condition as hemorrhoids, failed to warn that fiber tablets could contribute to his pain and bleeding, limited his participation in making important medical decisions, delayed referring him to a doctor, delayed filling his prescriptions, communicated poorly with him, and kept inadequate medical records. Sirmans' review of Toney's grievance did not address the majority of Toney's complaints and offered no relief. On July 15, 2015, Heimgartner reviewed Toney's grievance, corroborated Sirman's findings, and declined to take further action. Toney seeks damages against Heimgartner for his failure to take disciplinary or remedial measures in response to Toney's complaint.

         II. Legal Standard

         Under Rule 12(b)(6), a defendant may move for dismissal of any claim for which the plaintiff has failed to state a claim upon which relief can be granted.[2] Upon such motion, the Court must decide “whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.' ”[3] A claim is facially plausible if the plaintiff pleads facts sufficient for the Court to reasonably infer that the defendant is liable for the alleged misconduct.[4] The plausibility standard reflects the requirement in Rule 8 that pleadings provide defendants with fair notice of the nature of the claims as well as the grounds upon which each claim rests.[5]Under Rule 12(b)(6), the Court must accept as true all factual allegations in the complaint but need not afford such a presumption to legal conclusions.[6] Viewing the complaint in this manner, the Court must decide whether the plaintiff's allegations give rise to more than speculative possibilities.[7] If the allegations in the complaint are “so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.' ”[8]

         The pleadings of a pro se plaintiff are to be liberally construed.[9] But, the Court is not an advocate and will not allege additional facts or assert alternative legal theories for the pro se party.[10] To avoid dismissal, the pro se complaint “must set forth the grounds of plaintiff's entitlement to relief through more than labels, conclusions and a formulaic recitation of the elements of a cause of action . . . [and] must allege sufficient facts to state a claim which is plausible-rather than merely conceivable-on its face.”[11]

         III. Analysis

         A. Subject-Matter Jurisdiction

         Before undergoing a Rule 12(b)(6) analysis, the Court must first determine if there are any claims over which it lacks subject-matter jurisdiction.[12] Toney seeks damages under § 1983 against defendants in both their official and individual capacities. Additionally, Toney seeks damages for violation of the RLUIPA. Defendants argue all official capacity claims should be dismissed for lack of subject-matter jurisdiction because Eleventh Amendment immunity extends to state actors in their official capacities.

         Under the Eleventh Amendment, states and state officials sued in their official capacity are immune from suit in federal court unless the state has waived its immunity or Congress has abrogated it.[13] If state sovereign immunity applies, it goes beyond mere immunity from liability-“it actually deprives federal courts of subject-matter jurisdiction.”[14] It is well-established that Congress did not abrogate Eleventh Amendment immunity when it enacted § 1983[15] or RLUIPA.[16]

         The Court therefore dismisses Toney's claims to the extent they seek damages against the defendants in their official capacities. There is no question all five defendants are state officials. Congress did not abrogate Kansas' immunity when it passed § 1983 or RLUIPA, and no colorable claim has been made that Kansas waived its immunity. Thus, the Court lacks subject-matter jurisdiction over Toney's official capacity claims, and those claims are accordingly dismissed.

         B. Ramadan Meals

         Toney claims the failure to provide timely meals during Ramadan 2015 violated the First Amendment and RLUIPA's religious protections, the Eighth Amendment's prohibition against cruel and unusual punishment, and the Fourteenth Amendment's equal protection clause. Toney fails to link each claim to a specific defendant, but the Court, construing the complaint liberally, determines the claims arising from Toney's Ramadan meals can only apply to defendants Heimgartner and Quidichay. Neither Heimgartner nor Quidichay were directly responsible for delivering Toney's meals, serving only in a supervisory capacity to the officer who did. The Court will first consider each constitutional and statutory claim to determine if Toney states a plausible violation of a protected right. Then the Court will address to what extent either Heimgartner or Quidichay is responsible for that violation in their supervisory capacity.

         1. First Amendment

         The first legal theory Toney proposes is a violation of his First Amendment right to freely exercise his religious beliefs. Inmates retain fundamental constitutional rights even while incarcerated;[17] but those rights are not absolute and can be outweighed by legitimate penological interests.[18] Protected rights “include the reasonable opportunity to pursue one's religion as guaranteed by the free exercise clause of the First Amendment.”[19] The First Amendment safeguards an inmate's dietary practices as long as the diet is based on genuinely and sincerely held religious beliefs.[20] There is no requirement that the beliefs be a central tenet or even doctrinally necessary to the inmate's religion.[21] Investigating the sincerity of an inmate's belief is “premature at the [motion to dismiss] stage of the claim.”[22]

         Here, Toney alleges his religious beliefs require him to begin his daily Ramadan fast at “dawn, ” as opposed to sunrise or daylight. It is undetermined-and ultimately immaterial-if Toney's stance on when Ramadan fasting begins is a central tenet of Islam or a viewpoint unique to Toney. Toney is entitled to exercise his sincerely held religious beliefs, regardless if they are universally accepted by his religion or not. Consistent with Tenth Circuit law, the Court declines to scrutinize the sincerity of Toney's belief at this stage of the litigation.

         Toney has a constitutional right to adhere to a religious diet, and that right was not stripped upon his incarceration. The Court is cognizant of the difficulties inherent to running a prison and recognizes there may be legitimate reasons accommodating Toney's religious beliefs would be prohibitively burdensome. Although the defendants were permitted to identify legitimate penological interests justifying the policy, they have not provided any at this time. For that reason, the Court will not weigh the parties' competing interests at this stage. Toney has adequately stated a claim for a free exercise violation. Whether any of the named defendants are responsible for that violation will be discussed below in section III.B.5.

         2. RLUIPA

         The second theory Toney seeks damages under is a RLUIPA violation. The Court has already noted the Eleventh Amendment bars Toney's RLUIPA claims against all defendants acting in their official capacities. Moreover, the Tenth Circuit has held “there is no cause of action under RLUIPA against individual defendants in their individual capacities.”[23] Without a cause of action Toney cannot bring a claim for damages under RLUIPA and those claims are accordingly dismissed.

         3. Equal Protection

         Next, Toney alleges an equal protection violation under the Fourteenth Amendment, claiming Muslim prisoners in general population received their morning meals before non-Muslim prisoners but Muslim prisoners in administrative segregation were not afforded the same accommodation. To make a viable equal protection claim, a prisoner must show he was treated differently from those who were “similarly situated” to him and the difference in treatment was not “reasonably related to legitimate penological interests.”[24] The prisoner and the person or group he compares himself to must be similarly situated “in all relevant aspects.”[25] Importantly, segregated inmates “by definition [are] not similarly situated to general population inmates during [their] time in administrative segregation.”[26]

         According to the most recent complaint, Toney “is currently housed in long-term administrative segregation” and has been in segregation “[a]t all time relevant to this complaint.” Toney's equal protection claim relies solely on the allegation that “Muslims in general population were allowed to eat breakfast prior to any other prisoners” and Muslims in administrative segregation were not. Toney was, “by definition, ” situated differently than general population Muslims. Toney fails to allege facts to support the first element of an Equal Protection violation claim-so, it is unnecessary for the Court to move to the second element and analyze whether the difference in treatment is reasonably related to legitimate penological interests. The equal protection claim is dismissed.

         4. Eighth Amendment

         Toney's final claim relating to his Ramadan meals is an Eighth Amendment violation for cruel and unusual punishment. Defendants respond that the physical symptoms Toney allegedly suffered because of food deprivation were not sufficiently serious enough to violate the Eighth Amendment. An inmate alleging an Eighth Amendment violation for a prison condition must show the condition or deprivation was “objectively, sufficiently serious.”[27] Allegations of mere discomfort do not implicate the Eighth Amendment.[28] Instead, a deprivation is only objectively, sufficiently serious if it denies an inmate “the minimal civilized measure of life's necessities . . . [and poses] a substantial risk of serious harm.”[29]

         Specific to food deprivation, the Eighth Amendment only requires prisons to provide inmates “nutritionally adequate” food.[30] Neither weight loss nor physical ailments related to fewer calories necessarily show a serious deprivation unless the weight loss or ailments substantially threaten the inmate's health and safety.[31] The Eighth Amendment is not violated by the denial of a requested diet as long as nutritionally ...


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