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McDiffett v. Nance

United States District Court, D. Kansas

March 16, 2018

SHAWN W. McDIFFETT, Plaintiff,
v.
CHARLES NANCE, et al., Defendants.

          MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE

          SAM A. CROW U.S. SENIOR DISTRICT JUDGE

         This 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, [1] 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 Cause.

         I. Nature of the Matter before the Court

         Plaintiff 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[2] 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.

         The 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 second surgery.

         Plaintiff 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.

         Plaintiff 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.

         Following 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.

         Plaintiff 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.”

         On July 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.

         Plaintiff 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.)

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         II. 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 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. § 1915A(b)(1)- (2).

         “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).

         A pro 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.

         The 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).

         The 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).

         III. ...


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