United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW U.S. Senior District Judge
filed this civil rights action alleging that he was denied
proper medical care during his pretrial detention at the
Butler County Detention Facility. Plaintiff named as
Defendants Kelly Herzet, Butler County Sheriff, and Brook
Haubenstein, R.N. with Advanced Correctional Healthcare.
Plaintiff's request for relief seeks medical care in the
form of proper STD screening (including testing for HIV/AIDS,
Hepatitis C, and Herpes), dental work, and an eye/vision
examination for proper corrective eyewear. Plaintiff also
seeks punitive and compensatory damages.
Court entered a Memorandum and Order and Order to Show Cause
on December 19, 2017 (“MOSC”), requiring
Plaintiff to show good cause why his claims against Defendant
Kelly Herzet, Butler County Sheriff, should not be dismissed
due to the deficiencies in Plaintiff's Complaint that are
discussed in the MOSC. This matter is before the Court on
Plaintiff's Response (Doc. 5) to the MOSC.
Court found in the MOSC that Plaintiff “must show an
affirmative link between [Herzet] and the constitutional
violation, which requires proof of three interrelated
elements: (1) personal involvement; (2) causation; and (3)
state of mind.” Keith v. Koerner, 843 F.3d
833, 838 (10th Cir. 2016) (internal quotation marks omitted)
(citing Schneider v. City of Grand Junction Police
Dep't., 717 F.3d 760, 767 (10th Cir. 2013) (quoting
Dodds, 614 F.3d at 1195)).
Court found in the MOSC that Plaintiff failed to allege any
personal involvement by Defendant Herzet. The claims against
Sheriff Herzet require proof that he personally committed a
constitutional violation. Keith, 843 F.3d at 837-38
(citing Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)
(“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.”)).
It is not enough that a defendant acted in a supervisory role
when another defendant violated a plaintiff's
constitutional rights. Keith, 843 F.3d at 838.
Response, Plaintiff alleges that he was told by Defendant
Haubenstein that the Butler County Jail does not provide
outside facility testing and that the order “comes from
the top.” Plaintiff asserts this is an “obvious
insinuation” that the order is from Sheriff Herzet.
Plaintiff argues that when an “executive officer signs
an executive order into effect, that is a blatant attempt to
staunch appropriate medical treatment from taking
place.” (Doc. 5, at 2.) However, Plaintiff fails to
point to any such order or policy at the Butler County
Jail. Instead, Plaintiff asks the Court to
investigate to determine who is responsible for the “no
outside facility testing” order or policy, and to hold
Defendant Herzet accountable “[i]f he has a part in
that instruction to the medical department.” (Doc. 5,
Tenth Circuit Court of Appeals has explained “that, to
state a claim in federal court, a complaint must explain what
each defendant did to [the pro se plaintiff]; when the
defendant did it; how the defendant's action harmed [the
plaintiff]; and, what specific legal right the plaintiff
believes the defendant violated.” Nasious v. Two
Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir.
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). Because Plaintiff has failed
to allege any personal involvement by Defendant Herzet,
Plaintiff's claims against him are dismissed.
February 12, 2018, Plaintiff filed a Notice of Change of
Address (Doc. 8), notifying the Court the he was transferred
to the El Dorado Correctional Facility in El Dorado, Kansas.
To the extent Plaintiff's request for relief seeks
medical care in the form of proper STD screening (including
testing for HIV/AIDS, Hepatitis C, and Herpes), dental work,
and an eye/vision examination for proper corrective eyewear,
the Court finds that Plaintiff's requests for injunctive
relief are moot.
III of the Constitution extends the jurisdiction of federal
courts only to “live, concrete” cases or
controversies. Rio Grande Silvery Minnow v. Bureau of
Reclamation, 601 F.3d 1096, 1109 (10th Cir. 2010).
“Article III's requirement that federal courts
adjudicate only cases and controversies necessitates that
courts decline to exercise jurisdiction where the award of
any requested relief would be moot-i.e. where the controversy
is no longer live and ongoing.” Cox v. Phelps Dodge
Corp., 43 F.3d 1345, 1348 (10th Cir. 1994),
superseded by statute on other grounds.
Consequently, “[m]ootness is a threshold issue because
the existence of a live case or controversy is a
constitutional prerequisite to federal court
jurisdiction.” Rio Grande, 601 F.3d at 1109
(internal quotations and citations omitted).
exposure to illegal conduct does not in itself show a present
case or controversy regarding injunctive relief.”
O'Shea v. Littleton, 414 U.S. 488, 4951974). The
Tenth Circuit has applied this principle to § 1983
actions brought by inmates, and held that an inmate's
transfer from one prison to another generally renders moot
any request for injunctive relief against the employees of
the original prison concerning the conditions of confinement.
See Green v. Branson, 108 F.3d 1296, 1299-1300 (10th
Cir. 1997); see also Wirsching v. Colorado, 360 F.3d
1191, 1196 (10th Cir. 2004) (inmate's release from prison
moots his claims for declaratory and injunctive relief);
McAlpine v. Thompson, 187 F.3d 1213, 1215 (10th Cir.
1999) (recognizing prisoner's release from prison mooted
his § 1983 claim for injunctive relief); Love v.
Summit County, 776 F.2d 908, 910 n.4 (10th Cir. 1985)
(noting transfer of inmate to different prison renders his
§ 1983 claim for injunctive relief moot).
mootness doctrine is based on the reality that even if the
inmate receives injunctive relief, the defendants from the
former prison would be unable to provide the relief to
plaintiff. Plaintiff was transferred from the Butler County
Detention Facility after he filed his Complaint. To the
extent Plaintiff seeks injunctive relief, his claims are moot
and therefore dismissed.
IS THEREFORE ORDERED BY THE COURT that
Plaintiff's claims against Defendant Kelly Herzet are
IS FURTHER ORDERED that Plaintiff's requests for
injunctive relief are denied as moot.