United States District Court, D. Kansas
MEMORANDUM AND ORDER
Crow, U.S. District Senior Judge
plaintiff Caleb Kanatzar, a pretrial detainee at the Shawnee
County Department of Corrections (“SCDC”), in
Topeka, Kansas, filed last year a 29-page complaint alleging
10 claims for relief under 42 U.S.C. § 1983. ECF# 1. The
court applied the screening standards to this complaint
dismissing some of the claims and requiring the plaintiff to
file an amended complaint upon court-approved forms. ECF# 6.
Upon receipt of the amended complaint, the court again
applied the screening standards and dismissed two of the
three remaining counts and one of the defendants. ECF# 8. The
court also directed the SCDC defendants to prepare a
Martinez report on Mr. Kanatzar's remaining
count that alleged he “was made aware of” the
SCDC not preparing his requested kosher meals according to
his religion's tenets for “keeping kosher, ”
that is, in a separate kitchen with containers and utensils
which have never held non-Kosher food. ECF## 7 and 8. The
defendants, Brian Cole, Timothy Phelps, and Mary Fletcher
timely filed the Martinez report. ECF# 13. A month
later, the defendants filed their motions to dismiss for
failure to state a claim. ECF## 14 and 15. Mr. Kanatzar has
filed no response to the Martinez report. More
importantly, the time for filing responses opposing the
defendants' motions to dismiss has expired without Mr.
Kanatzar filing anything. Following its local rules, the
court will consider and decide without further notice the
defendants' pending motions to dismiss as uncontested. D.
Kan. Rule 7.4(b). As the Tenth Circuit has held, this court
may not grant a motion to dismiss simply for the lack of an
opposing response, but it must still apply the Rule 12(b)(6)
standards against the allegations of the complaint. Issa
v. Comp USA, 354 F.3d 1174, 1177-78 (10th Cir. 2003).
Tenth Circuit recently summarized the relevant standards
governing a court's analysis of a Rule 12(b)(6) motion
for failure to state a claim for relief:
“A pleading is required to contain ‘a short and
plain statement of the claim showing that the pleader is
entitled to relief.'” SEC v. Shields, 744
F.3d 633, 640 (10th Cir. 2014) (quoting Fed.R.Civ.P.
8(a)(2)). “We accept as true all well-pleaded factual
allegations in the complaint and view them in the light most
favorable to the” plaintiff. Id. (quoting
Burnett v. Mortg. Elec. Registration Sys., Inc., 706
F.3d 1231, 1235 (10th Cir. 2013)). We then “determine
whether the plaintiff has provided ‘enough facts to
state a claim to relief that is plausible on its
face.'” George [v. Urban Settlement
Servs.], 833 F.3d  at 1247 [(10th Cir. 2016)]
(quoting Hogan v. Winder, 762 F.3d 1096, 1104 (10th
“In determining the plausibility of a claim, we look to
the elements of the particular cause of action, keeping in
mind that the Rule 12(b)(6) standard [does not] require a
plaintiff to ‘set forth a prima facie case for each
element.'” Id. (quoting Khalik v.
United Air Lines, 671 F.3d 1188, 1192-93 (10th Cir.
2012)). “The nature and specificity of the allegations
required to state a plausible claim will vary based on
context.” Kan. Penn Gaming, LLC v. Collins,
656 F.3d 1210, 1215 (10th Cir. 2011). But “mere
‘labels and conclusions' and ‘a formulaic
recitation of the elements of a cause of action' will not
suffice; a plaintiff must offer specific factual allegations
to support each claim.” Id. at 1214 (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Thus, a “claim is
facially plausible if the plaintiff has pled ‘factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.'” George, 833 F.3d at 1247
(quoting Hogan, 762 F.3d at 1104, which in turn
quotes Ashcroft v. Iqbal, 556 U.S. 662, 678, 129
S.Ct. 1937, 173 L.Ed.2d 868 (2009)).
However, “when legal conclusions are involved in the
complaint[, ] ‘the tenet that'” we accept the
allegations as true “is inapplicable to [those]
conclusions.” Shields, 744 F.3d at 640 (second
alteration in original) (citation omitted).
Safe Streets Alliance v. Hickenlooper, 859 F.3d 865,
878 (10th Cir. 2017).
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). In addressing a claim
brought under § 1983, the analysis begins by identifying
the specific constitutional right allegedly infringed.
Graham v. Connor, 490 U.S. 386, 393-94 (1989). The
validity of the claim then must be judged by reference to the
specific constitutional standard which governs that right.
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).
one of Mr. Kanatzar's amended complaint is the only claim
remaining in this action. He claims the denial of his rights
under the First and Fourteenth Amendments for the
defendants' failure to provide him a kosher diet. He
specifically alleges that he requested a kosher diet and was
placed on SCDC's certified religious diet
(“CRD”) plan one week later. However, he has
since been “made aware that” SCDC “does not
maintain a separate kosher kitchen, ” that “SCDC
uses the same pots, pans and utensils to prepare both CRD and
regular trays.” ECF# 7. As far as the actionable
conduct taken by the individual defendants, Mr. Kanatzar
alleges he submitted separate requests for his meals to be
prepared in a manner “keeping kosher” first to
Major Timothy Phelps in March and April, then a separate
request to “Food Service Supervisor Mary Fletcher,
” and finally a request to Director Brian Cole in May.
Id. He alleges his requests were not acknowledged or
answered. The plaintiff asserts the defendants violated his
rights under the First and Fourteenth Amendment to pursue his
sincerely-held religious beliefs.
the First and Fourteenth Amendments, inmates are entitled to
the reasonable opportunity to pursue their sincerely-held
religious beliefs.” Gallagher v. Shelton, 587
F.3d 1063, 1069 (10th Cir. 2009) (citation omitted).
“Individual liability under § 1983 must be based
on personal involvement in the alleged constitutional
violation.” Id. at 1069 (quoting Foote v.
Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997)).
Liability under § 1983 does not come from a supervisory
status alone, for “there must be an affirmative link .
. . between the constitutional deprivation and either the
supervisor's personal participation, his exercise of
control or direction, or his failure to supervise.”
Id. (internal quotation marks and citation omitted).
“In order to state a claim that defendants violated his
right to free exercise of religion, Gallagher [the inmate]
must adequately allege that the defendants substantially
burdened his sincerely-held religious beliefs.”
Id. (internal quotation marks and citation omitted).
plaintiff's central allegation is that the defendants did
not answer or respond to his requests for his CRD meals to be
prepared according to kosher requirements. He does not allege
facts demonstrating the defendants personally participated in
preparing, directing, supervising or controlling the
preparation of the CRD meals in compliance with any kosher
food preparation requirements. Instead, the plaintiff alleges
no more than his requests were not acknowledged or responded
to. As the Tenth Circuit has held, this is not enough to
state a claim:
Taking these allegations as true, defendants' actions
were, at most, isolated acts of negligence, not pervasive
violations of Gallagher's right to free exercise of
religion. We agree with our previous, unpublished decision
recognizing that an isolated act of negligence would not
violate an inmate's First Amendment right to free
exercise of religion. See White v. Glantz, 986 F.2d
1431 (Table), 1993 WL 53098, at *2 (10th Cir. Feb. 25, 1993)
(unpublished) (“Although the Plaintiff was most
certainly annoyed and exasperated, [the] isolated negligent
act of the Defendants cannot support a claim that the
Plaintiff was denied his First Amendment right to freedom of
religion.”); see also Lovelace v. Lee, 472
F.3d 174, 201 (4th Cir.2006) (“[Plaintiff] must assert
conscious or intentional interference with his free exercise
rights to state a valid claim under § 1983.”).
Gallagher's allegation that defendants Geither and Penner
did not timely approve his requests for religious
accommodations does not support a claim that the defendants
substantially burdened his religious beliefs, i.e., that they
violated his right to free exercise of religion. Therefore,
Count I was properly dismissed for failure to state a claim.
In Count II of his complaint, Gallagher claimed that Growell
and Ratliff violated his right to free exercise of religion
by denying him his right to a kosher diet. Gallagher alleged
that his food was not prepared according to the kosher
requirements. Specifically, serving utensils that were
reserved for ...