United States District Court, D. Kansas
SHAWN W. McDIFFETT, Plaintiff,
CHARLES NANCE, et al., Defendants.
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
CROW U.S. SENIOR DISTRICT JUDGE
matter is before the Court on Plaintiff's Response (Doc.
11) to the Court's Notice and Order to Show Cause (Doc.
8) (“NOSC”). The NOSC required Plaintiff to show
good cause why his claims against Defendants Christopher
Hunt, CO Obeidat, Randy (lnu), Jane Doe, Dr. Saffo, UTM
Wildermuth, and CO Redieck should not be dismissed due to the
deficiencies in Plaintiff's Complaint that are discussed
in the NOSC. The NOSC also granted Plaintiff an opportunity
to file a complete and proper Amended Complaint to cure all
the deficiencies discussed in the NOSC. Plaintiff filed his
Response, as well as an Amended Complaint (Doc. 12). The
Court has screened Plaintiff's Amended Complaint and
considered Plaintiff's Response,  and finds that Plaintiff has
failed to show good cause why Defendants Christopher Hunt, CO
Obeidat, Randy (lnu), John/Jane Doe, Dr. Saffo, and CO
Redieck should not be dismissed. The Court dismisses these
Defendants for the reasons set forth in the NOSC.
See Doc. 8, at 10-17. The Court also orders
Plaintiff to show good cause, in writing, to the Honorable
Sam A. Crow, United States District Judge, why his claims
against Defendants Jennifer Kieltyka, Lauren Gift, Beverly
Jackson, Gaye Servino, Eilene (lnu), (fnu) Arol, Cris Ross
and Douglas Burris, should not be dismissed for the reasons
set forth in this Memorandum and Order and Order to Show
Nature of the Matter before the Court
brings this pro se civil rights action pursuant to
42 U.S.C. § 1983. Although Plaintiff is currently
incarcerated at the Hutchinson Correctional Facility in
Hutchinson, Kansas (“HCF”), the events giving
rise to his Amended Complaint took place during his
incarceration at the Lansing Correctional Facility in
Lansing, Kansas (“LCF”). Plaintiff names as
defendants: Charles Nance, Unit Team Manager
(“UTM”) at LCF; Karl Saffo, M.D. employed by
Corizon; Jennifer Kieltyka, ARNP/PA employed by Corizon;
Lauren Gift, Corizon Clinic Administrator; Beverly Jackson,
Corizon Nurse; John/Jane Doe, Corizon Nurse; Gaye Servino,
Corizon Nurse; Barbara Redieck, Correctional Officer
(“CO”) at LCF; Randy (lnu), Aramark Food Service
Supervisor; (fnu) Obeidat, CO at LCF; Irene Silva, CO at LCF;
(fnu) Arol, CO at LCF; Christopher Hunt, Disciplinary Hearing
Officer (“DHO”) at LCF; Eilene (lnu), Corizon
Infirmary Nurse; Lindsay Wildermuth, UTM at LCF Segregation
and/or Restrictive Housing Unit; Nicolaus Ball, UTM at LCF
Segregation and/or Restrictive Housing Unit; Cris Ross,
Grievance Officer at LCF; and Douglas Burris, KDOC
Corrections Manager/Facility Management. All Defendants are
sued in their individual capacities. Plaintiff seeks a
declaratory judgment, compensatory damages, nominal damages
and punitive damages.
Court's NOSC set forth in detail the facts alleged in the
original Complaint, which cover the time period through
Plaintiff's second hernia surgery in July 2015. (Doc. 8,
at 1-8.) The Amended Complaint provides the following
additional allegations for the time period following his
had a follow up with the surgeon two weeks after his second
surgery. The surgeon requested another follow up in two
weeks, but Defendant Nurse Jackson told Plaintiff he did not
need to go back for any additional follow ups.
insisted on longer recovery time-three weeks in the
infirmary-after his second surgery, and did not experience
problems as he had with his first surgery. However, CO
Obeidat interfered with doctor's orders by failing to
allow Plaintiff proper out-of-cell time in which to
rehabilitate and ambulate properly. The nursing staff
contacted the individual overseeing the infirmary to direct
CO Obeidat to let Plaintiff out of his cell morning, noon and
evening. Plaintiff received a modified diet, was allowed to
care for his incision site, and was placed back in general
population in A-1 Cellhouse to further recover.
Plaintiff's second surgery, he had numerous problems with
UTM Parks and UTM Nance, and was placed in administrative
segregation several times. Plaintiff alleges that his housing
assignments continued to violate his medical restrictions.
After a transfer to another cell, Plaintiff's personal
fans were missing. He requested a “state indigent
fan” on Saturday and was told he would have to get one
from the UTM on Monday. The temperature had been in excess of
100 degrees and was expected to continue all weekend.
Plaintiff was informed on Monday that there were no indigent
fans available, and that staff would go to the property room
later in the week to bring Plaintiff the rest of his
property, including his fan.
claims that the following allegations are the result of
Plaintiff's “attempts to avoid a hostile and
threatening environment with UTM-Parks” which would be
present in D-Cellhouse-a maximum security cellhouse.
Plaintiff claims that his refusal to be housed in D-Cellhouse
caused him to be subjected to discipline. (Doc. 12, at 32.)
Plaintiff claims that the door-locking mechanisms in
D-Cellhouse are faulty, allowing them to be opened from the
inside or outside with as little as a pencil, a toothbrush, a
nail or a piece of wire. Plaintiff acknowledges that the
necessary steps to correct the door locking mechanisms
“were rumored to start as early as October 2016.”
25, 2016, Plaintiff was informed that he was being released
from segregation and would be returning to D-Cellhouse.
Plaintiff informed staff that he would go as long as he was
not harassed by UTM Parks or placed into a cell right up
front by the office. When Plaintiff arrived at D-Cellhouse
and realized they were in fact going to place him up front by
the office, Plaintiff turned his cart around and returned to
segregation. Plaintiff informed staff that if they attempted
to return him to D-Cellhouse he would “refuse to lock
down.” Defendant Wildermuth gave Plaintiff a DR for
disobeying orders by refusing to go to D-102. Plaintiff
alleges that Wildermuth asked Plaintiff is he was ready to go
to D-102 and he replied “no, ” but no
“direct order” was given.
alleges the UTM Wildermuth placed him on a
“kick-out” list “knowing [he] had already
refused and would continue to refuse to move to
D-Cellhouse.” (Doc. 32, at 33.) Plaintiff received a
second DR, before he had a hearing on his first DR. When Mr.
Hunt came to Plaintiff's cell to ask how he wanted to
plead to the second DR, Plaintiff inquired about the hearing
for the first DR and stated that it should be dismissed.
Plaintiff alleges that the hearing was held on the second DR
prior to the first, because the second report was a more
“sound report.” (Doc. 12, at 33.) Plaintiff
alleges that Defendants Wildermuth and Ball continued to
refuse to move Plaintiff to a different cell in retaliation
and to “satisfy their own sadistic desires for
[Plaintiff's] refusal to adhere to their order to move
[him] to a hostile, unsafe and unsecure environment.”
(Doc. 12, at 34.)
alleges that there were other inmates in A-1 Segregation
(“Seg”) and C-1 Seg who refused to move back to a
general population cell, for whatever reason, and they were
not held in an MRA cell or continuously written disciplinary
reports or denied property, adequate food, lighting,
clothing, medical or other liberties and/or privileges.
Plaintiff also alleges that Defendants Ball and Wildermuth
denied him access to the courts, outside cellhouse
departments such as the records department, library, EAI
department, legal services, mental health, etc., by failing
to forward his request forms.
acknowledges that he “returned himself” to C-1
Seg on July 25, 2016. (Doc. 12, at 33.) Plaintiff was in C-1
Seg for a couple of hours and then placed in MRA Cell 108,
where he remained for the next seventeen days. Plaintiff
alleges that he did not have any of his personal property and
he was placed in an MRA cell “without ever committing
an MRA offense.” (Doc. 12, at 31.) Plaintiff alleges
that while in Cell 108: he did not have his property, lights,
electricity, proper running hot or cold water suitable for
drinking; there was no exhaust to bring fresh air into the
cell; air flow was restricted due to mesh wire screens and
plexiglass covering the entire front of the cell
“clogged and soiled with human feces, blood, food,
bugs, and who knows what else”; he was made to wait
over ten days for a shower, with showers only on Monday,
Wednesday and Saturday-all while the heat temperatures were
at least 95 degrees and most days above 100 degrees.
filed grievances due to his continued placement in the MRA
cell by UTM Wildermuth. The warden's response was signed
by Cris Ross, the warden's designee, and included an
incorrect date. The response stated that “no action can
be taken through the grievance procedure; stating that K.A.R.
44-15-101a(d)(1) prohibits use of the grievance procedure in
any way as a substitute for, or as a part of, the inmate
disciplinary claims procedure, or the procedure for
censorship of publications specified in the Secretary's
Internal Management Policy and Procedure.” (Doc. 12, at
39.) Plaintiff appealed to the Secretary of Corrections, and
the secretary's designee, Douglas Burris, responded that
Plaintiff's complaint was clearly about the
classification decision-making process and the inmate
disciplinary procedure and K.A.R. 44-15-101 prohibited the
use of the grievance procedure to address this concern. (Doc.
12, at 40.) Plaintiff alleges that he was complaining about
his conditions of confinement, which is clearly grievable.
Statutory Screening of Prisoner Complaints
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 a complaint or portion
thereof if a plaintiff has raised claims that are legally
frivolous or malicious, that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
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).
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).
“[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitlement to relief'
requires “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S. at 555 (citations
omitted). The complaint's “factual allegations must
be enough to raise a right to relief above the speculative
level” and “to state a claim to relief that is
plausible on its face.” Id. at 555, 570.
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).
Tenth Circuit has pointed out that the Supreme Court's
decisions in Twombly and Erickson gave rise
to a new standard of review for § 1915(e)(2)(B)(ii)
dismissals. 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). “Plausible” in
this context does not mean “likely to be true, ”
but rather refers “to the scope of the allegations in a
complaint: if they are so general that they encompass a wide
swath of conduct, much of it innocent, ” then the
plaintiff has not “nudged [his] claims across the line
from conceivable to plausible.” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing
Twombly, 127 S.Ct. at 1974).