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Waterman v. Cherokee County Jail

United States District Court, D. Kansas

May 2, 2018

BRIAN MICHAEL WATERMAN, Plaintiff,
v.
CHEROKEE COUNTY JAIL, et al., Defendants.

          ORDER

          Sam A. Crow, U.S. District Senior Judge.

         This case is before the court for the purpose of screening plaintiff's pro se complaint pursuant to 28 U.S.C. § 1915A.

         I. Pro se standards

         “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A pro se litigant, however, is not relieved from following the same rules of procedure as any other litigant. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992), cert. denied, 507 U.S. 940 (1993). A district court should not “assume the role of advocate for the pro se litigant.” Hall, supra. Nor is the court to “supply additional factual allegations to round out a plaintiff's complaint.” Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).

         II. Screening standards

         Title 28 United State Code Section 1915A requires the court to review cases filed by prisoners seeking redress from a governmental entity or employee to determine whether the complaint is frivolous, malicious or fails to state a claim upon which relief may be granted. When deciding whether plaintiff's complaint “fails to state a claim upon which relief may be granted, ” the court must determine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Id. The court accepts the plaintiff's well-pled factual allegations as true and views them in the light most favorable to the plaintiff. United States v. Smith, 561 F.3d 1090, 1098 (10th Cir. 2009).

         III. Plaintiff's allegations

         This is a civil rights complaint under 42 U.S.C. § 1983. Plaintiff alleges violations of his constitutional rights while he has been a pretrial detainee at the Cherokee County Jail. Plaintiff names the Cherokee County Jail as a defendant as well as the following persons: David Groves, Sheriff of Cherokee County; Michelle Tippie, jail administrator; Thomas Degroot, jail officer; Amanda Phillips, jail officer; Kristin Wagner, nurse practitioner; April Macafee, sergeant; and Judah Eliss, deputy.

         Plaintiff lists six counts in the complaint. In Count One, plaintiff alleges the denial of his due process rights when on March 17, 2018 he was locked down or placed in segregation for 15 days without a legitimate government purpose. Plaintiff claims that he was denied a disciplinary hearing and that the disciplinary report was not timely written in violation of jail policies.

         In Count Two, plaintiff asserts that his due process rights against punishment as a pretrial detainee were violated because he was denied a diet required for medical reasons to prevent plaintiff from losing weight. Plaintiff asserts that he weighed 177 pounds on February 1, 2018 when he was returned to the Cherokee County Jail from the Crawford County Jail. He asserts that he weighed 157 pounds on March 29, 2018.

         In Count Three, plaintiff alleges illegal retaliation against his right to petition the government. Plaintiff alleges that he was taken off his medical diet on August 24, 2017, the day after he filed a grievance against defendant Tippie for opening outgoing legal mail. Plaintiff further alleges that he was placed on disciplinary segregation on August 31, 2017 for stating that he was going to file a grievance and write to a relevant government oversight agency.

         In Count Four, plaintiff contends that on or about June 28, 2017 he discovered that jail officers opened a manila envelope that was addressed to his lawyer. He claims that this ...


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