United States District Court, D. Kansas
MEMORANDUM AND ORDER
Crow, U.S. District Senior Judge.
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
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.
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 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).
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
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).
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
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.
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).
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.
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, ...