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Broyles v. Marks

United States District Court, D. Kansas

May 22, 2018

JOHN ELBERT BROYLES II, Plaintiff,
v.
BYRON MARKS, Sheriff of Cloud County, Kansas, and AMBER LINDBERG, Administrator of Cloud County Jail, Defendants.

          MEMORANDUM AND ORDER

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

         The plaintiff John Elbert Broyles II, an inmate at Cloud County Jail, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. He alleges his Eighth Amendment rights were violated by what he calls cruel and unusual punishment from having been served for the month before his complaint either the same two Kosher meals alternated between lunch and dinner on most days or the same Kosher meal for both lunch and dinner on some days. He also alleges his Fourteenth Amendment rights to equal protection were violated by receiving these same limited meal choices while other inmates eating non-Kosher meals have been receiving a wide variety of meals. The complaint names as the defendants, Sheriff Byron Marks and Jail Administrator Amber Lindberg. He seeks as relief an order barring his transfer to another jail facility, giving him “a variety of meal selections, ” and awarding him monetary award of $100, 000 for pain and suffering, as well costs.

         Mr. Broyles alleges speaking with Ms. Lindberg about having the contracted food providers offer a variety of Kosher meal selections and then receiving her assurance that more variety would be coming. He also alleges having advised her, “that limiting . . . [his] diet to only two different meals constitutes ‘Cruel and Unusual Punishment, ' since all other ‘non-Kosher' inmates are being served a wide variety of meals.” ECF# 1, p. 5. He further alleges that other inmates have complained about this same limited variety of Kosher meals.

         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 the entire complaint or any part of it, “if the complaint ... is frivolous, malicious, or fails to state a claim upon which relief can be granted; or ... seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b).

         “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). 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).

         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 same standard used for Fed.R.Civ.P. 12(b)(6) motions is used for § 1915 dismissals, and this includes the newer language and meaning taken from Twombly and its “plausibility” determination. 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).

         Personal Participation

         To allege a constitutional violation, the plaintiff's complaint must include “facts sufficient to show (assuming they are true) that the defendants plausibly violated their constitutional rights, and that those rights were clearly established at the time.” Robbins v. Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008). The plaintiff must “make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claim against him or her, as distinguished from collective allegations against the state.” Id. at 1250. “Allegations of personal participation, like all other factual averments, must be specific, not conclusory.” Hachmeister v. Kline, 2013 WL 237815 at *3 (D. Kan. Jan. 22, 2013) (internal quotation marks and citations omitted). The plaintiff's complaint is vague in alleging what either defendant specifically did to violate his constitutional rights.

         The complaint identifies both defendants by their titles but fails to allege personal involvement in the decision to offer plaintiff only limited Kosher meal selections. The plaintiff alleges he told Ms. Lindberg that she contracts for the meals and that she is liable for the lack of variety. The plaintiff also alleges that Ms. Lindberg assured him on February 4, 2018, that the food contractor had ordered him a variety of Kosher meals. The plaintiff alleges in response that he has yet to receive this variety. The court notes that Mr. Broyles' complaint was received and filed on February 9, 2018. ECF# 1, pp. 1, 4-5.

         Most notably, there is nothing alleged in his complaint that either defendant directly and intentionally limited the Kosher meal selections to consciously and intentionally interfere with Mr. Boyles' free exercise rights. Absent such allegations, Mr. Broyles' complaint fails to state a factual or legal basis for a First Amendment or Fourteenth Amendment violation under § 1983. See Watkins v. Rogers, 525 Fed.Appx. 756, 759 (10th Cir. 2013). Nor has Mr. Broyles alleged any individual actions taken by either defendant to show personal involvement under § 1983, which “does not authorize liability under a theory of respondeat superior.” Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011).

         Eighth Amendment Claim

         “The Constitution does not mandate comfortable prisons, . . ., but neither does it permit inhumane ones, and it is now settled that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal quotation marks and citations omitted). “The Eighth Amendment's prohibition of cruel and unusual punishment imposes a duty on prison officials to provide humane conditions of confinement, including adequate food, clothing, shelter, sanitation, medical care, and reasonable safety from serious bodily harm.” Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008). “A prison must provide adequate food . . ., and the food must be nutritionally adequate.” Thompson v. Gibson, 289 F.3d 1218, 1222 (10th Cir.) (internal quotation marks and citation omitted), cert. denied, 537 U.S. 978 (2002). “A substantial deprivation of food may be sufficiently serious to state a conditions of confinement claim under the Eighth Amendment.” Id. Prison officials have broad discretionary authority to manage and control prisons. Bailey v. Shillinger, 828 F.2d 651, 653 (10th Cir. 1987).

         The Supreme Court in Farmer spelled out that the Eighth Amendment can be violated for inhumane condition when the alleged deprivation is first, “objectively, sufficiently serious, ” such that the “official's act or omission must result in the denial of the minimal civilized measure of life's necessities.” 511 U.S. at 834 (internal citations and quotation marks omitted). “[T]o satisfy this prong of the Farmer test, a prisoner must show that conditions were more than uncomfortable, and instead rose to the level of ‘conditions posing a substantial risk of serious harm' to inmate health or safety.” DeSpain v. Uphoff, 264 F.3d 965, 973 (10th Cir. 2001) (quoting Farmer, 511 U.S. at 834). To allege an Eighth Amendment violation, the plaintiff must show as the second prong that the defendants acted with deliberate indifference to inmate health or safety. Farmer, 511 U.S. at 834; Miller v. Glanz, 948 F.2d 1562, ...


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