United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW U.S. SENIOR DISTRICT JUDGE.
a state prisoner appearing pro se and in forma pauperis,
filed this civil rights complaint pursuant to 42 U.S.C.
§ 1983. Mr. Dale is currently an inmate at Lansing
Correctional Facility in Lansing, Kansas (“LCF”).
He primarily alleges that his Eighth Amendment rights are
being violated by Defendants' failure to protect him from
other prisoners. Mr. Dale states he has been attacked at
least 3 times in 2 different correctional facilities as a
result of informing on other inmates while he was confined in
the Johnson County Jail in 2009. The Court conducted an
initial screening of Mr. Dale's Complaint and ordered him
to show cause why his Complaint should not be dismissed for
failure to state a claim. (Doc. 15.) The Court found any
claims based on assaults that occurred in 2013 and 2014 are
time-barred, that it did not appear Mr. Dale had exhausted
his administrative remedies, and that prisoners have no
constitutional right to choose their housing assignment.
Plaintiff filed a response and an amended complaint. (Doc. 16
response and amended complaint, Mr. Dale argues his claims
should not be barred by the statute of limitations because he
has suffered a “non-stop ordeal” and continuing
effects of Defendants' “lack of reasonable
acts.” He also modified his request for relief to add a
request that the Court order KDOC to take protective
measures, such as placing central monitors and “keep
aways” on specific inmates.
Court finds that any recovery for the assaults on Mr. Dale in
2013 and 2014 is barred by the statute of limitations.
Plaintiff filed this action on April 3, 2017. Therefore, only
alleged actions of Defendants that occurred on or after April
3, 2015, are actionable. See Baker v. Board of Regents of
State of Kan., 991 F.2d 628, 630-31 (10th Cir. 1993).
to protect (Counts I & III)
primary claim is that Defendants violated his Eighth
Amendment rights by failing to protect him from other
inmates. Prison officials have a duty under the Eighth
Amendment “to protect prisoners from violence at the
hands of other prisoners.” Farmer v. Brennan,
511 U.S. 825, 832 (1994). However, the failure of a prison
official to meet that duty only rises to the level of a
constitutional violation if the evidence shows the defendants
acted with “wanton or obdurate disregard for or
deliberate indifference to” the protection of
prisoners' lives. Harris v. Maynard, 843 F.2d
414, 416 (10th Cir. 1988); Northington v. Jackson,
973 F.2d 1518, 1525 (10th Cir. 1992).
test for deliberate indifference has both an objective and a
subjective component. Martinez v. Beggs, 563 F.3d
1082, 1088 (10th Cir. 2009); Sealock v. Colorado,
218 F.3d 1205, 1209 (10th Cir. 2000). “The
objective component of the test is met if the ‘harm
suffered rises to a level sufficiently serious to be
cognizable under the Cruel and Unusual Punishment Clause'
of the Eighth Amendment.” Martinez, 563 F.3d
at 1088 (quoting Mata v. Saiz, 427 F.3d 745, 752-53
(10th Cir. 2005)). “To prevail on the subjective
component, the prisoner must show that the defendants
‘knew he faced a substantial risk of harm and
disregarded that risk, by failing to take reasonable measures
to abate it.'” Callahan v. Poppell, 471
F.3d 1155, 1159 (10th Cir. 2006) (quoting Kikumura v.
Osagie, 461 F.3d 1269, 1293 (10th Cir. 2006)).
the test to Plaintiff's case, the first question is
whether Mr. Dale has stated facts demonstrating that the harm
he has suffered since April 3, 2015, is sufficiently serious
to rise to the level of a constitutional violation. Mr. Dale
does not allege he has been attacked in that time period. He
makes vague assertions that he has been “threatened by
gangs” or that attempted attacks have been made, but he
provides no detail as to the dates or the circumstances. His
conclusory assertions of on-going harm are simply not
sufficient to meet the objective component of the deliberate
second question is whether Plaintiff has stated facts showing
that each of the named defendants were personally aware he
faced a substantial risk of harm. Mr. Dale has also failed to
meet his burden on this portion of the test for deliberate
indifference. The only defendants identified by name in the
supporting facts section of the complaint are Defendant
Heimgartner and the “Secretary of Corrections.”
Both are mentioned as ignoring or failing to respond to
grievances filed by Plaintiff. The allegation that an
official denied a grievance or failed to respond to a
grievance is not sufficient to show the required personal
participation. Gallagher v. Shelton, 587 F.3d 1063,
1069 (10th Cir. 2009) (A “denial of a grievance, by
itself without any connection to the violation of
constitutional rights alleged by plaintiff, does not
establish personal participation under § 1983.”);
see Stewart v. Beach, 701 F.3d 1322, 1328 (10th Cir.
of whether or not Plaintiff has met his burden on the first
two questions, he fails to show that Defendants disregarded a
risk of harm to him. Plaintiff's own allegations show he
has been transferred repeatedly, has been kept in segregation
much of the time, and is currently in a treatment bed at LCF,
which Plaintiff acknowledges is a type of segregation. (Doc.
17 at 6.) Mr. Dale further admits a “central monitor
went through” as he had requested for one of the
inmates he informed on. (Doc. 17 at 7.) Defendants only have
a duty to take reasonable measures to protect
prisoners from harm; they are not required to guarantee total
safety. Farmer, 511 U.S. at 832; see Berry v.
City of Muskogee, 900 F.2d 1489, 1499 (10th
Cir. 1990). “[P]rison officials who actually knew of a
substantial risk to inmate health or safety may be found free
from liability if they responded reasonably to the risk, even
if the harm ultimately was not averted. A prison
official's duty under the Eighth Amendment is to ensure
‘reasonable safety, ' a standard that incorporates
due regard for prison officials' unenviable task of
keeping dangerous men in safe custody under humane
conditions.” Farmer, 511 U.S. at 844-45
(internal quotation marks omitted). Mr. Dale's complaint
shows prison officials have not simply turned a blind eye to
his situation. Particularly given that he has not suffered an
assault since 2014, the Court cannot find Plaintiff has
stated a claim that Defendants acted with deliberate
indifference. Rather, it appears they have fulfilled their
duty to ensure Plaintiff “reasonable safety.”
amended complaint and response, Plaintiff focuses on the fact
that Defendants have not put in place the “keep
aways” or central monitors he has requested. Merely
because Defendants have not taken the actions he wants does
not mean they have acted with deliberate indifference to his
safety such as to violate his constitutional rights.
“[P]rison officials are not required to guarantee a
prisoner's safety under terms and conditions dictated by
the prisoner. A prisoner is entitled to adequate protection
from harm, but is not entitled to direct prison officials on
the means to accomplish it.” Rider v.
Werholtz, 548 F.Supp.2d 1188, 1199 (D. Kan. 2008)
(quoting Hall v. Arnold, 2007 WL 3399745, *4 (E.D.
Ky. 2007)); Cf, Perkins v. Kansas Dep't of
Corrs., 165 F.3d 803, 811 (10th Cir.1999)
(“[A] prisoner who merely disagrees with a diagnosis or
a prescribed course of treatment does not state a
worth noting that this is not a case where Defendants have
labeled Mr. Dale a “snitch, ” thus placing him in
danger. He was identified as an informant because he wrote a
letter to the prosecutor in his case providing information on
several other pretrial detainees at the Johnson County Jail.
According to Mr. Dale, this letter was given to defense
counsel for those detainees resulting in Plaintiff being
identified as an informant. This distinguishes
Plaintiff's situation from cases which have found that
prison staff labeling a prisoner a “snitch” or
otherwise informing other prisoners that he cooperated with
law enforcement can constitute deliberate indifference.
See, e.g., Benefield v. McDowall, 241 F.3d 1267,
1271 (10th Cir. 2001).
Plaintiff has failed to allege facts showing Defendants
responded unreasonably or that they failed to provide him
with reasonable safety during the relevant time period,