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Broyles v. Presley

United States District Court, D. Kansas

November 3, 2017

JOHN ELBERT BROYLES II, Plaintiff,
v.
COLE PRESLEY, TINA MILLER, CITY OF SALINA, and STATE OF KANSAS, Defendants.

          MEMORANDUM AND ORDER

          SAM A. CROW, U.S. DISTRICT SENIOR JUDGE.

         The plaintiff John Elbert Broyles II, an inmate at the Graham County Jail, has filed a civil rights complaint, 42 U.S.C. § 1983, naming four defendants in the caption of his complaint. His complaint's allegations only address the actions for two of the named defendants, who are identified as Cole Presley, sheriff and administrator of Graham County Jail, and Tina Miller, supervisor of classifications for diet and administrative status at Saline County Jail. ECF# 1. The complaint names two more defendants, City of Salina and State of Kansas, but there are no allegations regarding their activity for which this action is brought. Id. The complaint, however, repeatedly refers to Saline County Jail. Id. Mr. Broyles seeks relief based on three causes of action: First Amendment violation resulting from the denial of his right to follow the dietary tenets of his religion; Eighth Amendment violation resulting from the denial of his right to recreation, exercise and nutritional diet; and Fourteenth Amendment violation resulting from the denial of equality in the exercise of religious rights.

         Mr. Broyles alleges he has been detained at Saline County Jail since November 21, 2016, and was serving his sentence there until he was transferred to the Graham County Jail on June 27, 2017. Id. at pp. 1-2. Mr. Broyles states he practices and exercises the “Jewish faith, ‘Yahweh Assembly in Yahshua'” and “adhere(s) to a strict ‘kosher' religion diet.” Id. at p. 1. While at the Saline County Jail, he received a “partial Kosher diet.” Mr. Broyles does not appear to bring any claim concerning the conditions of his confinement while residing at the Saline County Jail. Indeed, he wants to be transferred back to this jail. His complaint begins with Saline County's transfer of him to the Graham County Jail and the denial of Kosher meals there. Mr. Broyles alleges he filed grievances after these denials and was told that the jail did not serve Kosher meals. Besides the lack of Kosher meals, Mr. Broyles complains about the following conditions at the Graham County Jail:

The entire diet (menu) this facility offers is prepared by microwave oven. They provide no milk, fresh vegetables or fruits. No nutrients whatsoever! Lastly, no space or recreation area, nor opportunity to go outside or to a specific recreation area.

ECF# 1, p. 3. Mr. Broyles alleges he has filed grievances with both jails and has asked for a transfer back to the Saline County Jail. He denies receiving formal responses to his grievances. For relief, Mr. Broyles requests a transfer to a facility that provides a Kosher diet, and he also seeks monetary damages from Saline County Jail, Graham County Jail, and the State of Kansas. Id. at p. 7.

         Attached to his original complaint, the plaintiff attaches two completed “Graham County Jail Inmate Request Forms” that are dated September 18, 2017. ECF#1, Exs. A and B. Exhibit A appears to be a grievance addressed to “Saline County” and states:

As you have been made aware of since I have been housed at this facility, I am being denied my constitutional right to my First Amendment. I am required a religion (Kosher) diet, which this facility does not provide. This is my (4th or 5th) grievance regarding this issue. Before you farm-out an inmate, you have a legal obligation to ensure that the receiving facilities are properly equipped to meet each . . . .

ECF# 1, p. 8. This grievance does not include any response as to the action taken. Exhibit B appears to be a grievance addressed to the Graham County Jail and is asking for confirmation that he is receiving non-pork hot dogs from all of the servers. Id. at p. 9. This grievance form includes a response that the “all beef hot dogs” purchased for him are different in size. Id.

         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 the entire complaint or any part of it, “if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief can be granted; or . . . seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b).

         “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).

         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 same standard used for Fed.R.Civ.P. 12(b)(6) motions is used for § 1915 dismissals, and this includes the newer language and meaning taken from Twombly and its “plausibility” determination. 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).

         The complaint fails to state a cognizable claim against the State of Kansas. States are entitled to immunity under the Eleventh Amendment, unless the State has waived its immunity. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989)(holding neither a State nor its officials acting in their official capacities are “persons” under § 1983); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98-100 (1984)(holding “the principle of sovereign immunity is a constitutional limitation on the federal judicial power” although a State's sovereign immunity may be waived). There is no alleged basis for finding an abrogation of immunity or for believing the State would be waiving its immunity for purposes of this suit. “Eleventh Amendment immunity applies regardless of whether a plaintiff seeks declaratory or injunctive relief, or money damages.” Steadfast Ins. Co. v. Agricultural Ins. Co., 507 F.3d 1250, 1252 (10th Cir.2007) (citation omitted). The State of Kansas is hereby dismissed.

         For that matter, the plaintiff names the “City of Salina” as a defendant in the caption of his complaint, but he fails to allege any actions taken or involvement by the City. The plaintiff's complaint provides no factual or legal basis for believing the City is in anyway responsible for the actions about which the plaintiff complains. For these ...


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