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Coffman v. Shankle

United States District Court, D. Kansas

February 1, 2019

FNU SHANKLE, et al., Defendants.



         Plaintiff James Dylan Coffman, an inmate at the Saline County Jail in Salina, Kansas, brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff proceeds in forma pauperis. For the reasons discussed below, Plaintiff is ordered to show cause why his Complaint should not be dismissed.

         I. Nature of the Matter before the Court

         Plaintiff's Complaint (ECF No. 1) alleges he was sexually harassed and assaulted at the Saline County Jail. Plaintiff states that on the afternoon of November 28, 2018, he had just gotten his hair cut and asked Officer Shankle to open his cell door. Officer Shankle responded, “'You must do something for me.” Plaintiff took this as a sexually suggestive comment and replied, “What do you mean, sir?” Officer Shankle allegedly replied that Plaintiff should let “Roberts” cut a representation of male genitalia into his (Plaintiff's) hair. Plaintiff does not include any additional factual allegations.

         Plaintiff names as defendants Officer Shankle and the Saline County Jail. He claims violation of his rights under the Eighth Amendment and the Prison Rape Elimination Act (PREA) and seeks compensatory damages of $500, 000 for pain and suffering, mental anguish and duress.

         II. 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 employee of such entity to determine whether summary dismissal is appropriate. 28 U.S.C. § 1915A(a). Additionally, with any litigant, such as Plaintiff, who is proceeding in forma pauperis, the Court has a duty to screen the complaint to determine its sufficiency. See 28 U.S.C. § 1915(e)(2). Upon completion of this screening, the Court must dismiss any claim that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b), 1915(e)(2)(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); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). 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).

         A pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555 (citations omitted). The Complaint's “factual allegations must be enough to raise a right to relief above the speculative level” and “to state a claim to relief that is plausible on its face.” Id. at 555, 570.

         The Tenth Circuit Court of Appeals has explained “that, to state a claim in federal court, a complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant did it; how the defendant's action harmed [the plaintiff]; and, what specific legal right the plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 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 Tenth Circuit has pointed out that the Supreme Court's decisions in Twombly and Erickson gave rise to a new standard of review for § 1915(e)(2)(B)(ii) dismissals. 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). “Plausible” in this context does not mean “likely to be true, ” but rather refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, ” then the plaintiff has not “nudged [his] claims across the line from conceivable to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S.Ct. at 1974).

         III. Discussion

         Plaintiff's Complaint is subject to dismissal for two primary reasons. First, the conduct of which Plaintiff complains does not reach the magnitude of a constitutional violation as required to state a claim under § 1983. A prisoner alleging a constitutional claim of sexual harassment must allege facts to establish the objective and subjective components of an Eighth Amendment violation. Joseph v. Fed. Bureau of Prisons, 232 F.3d 901 (Table), 2000 WL 1532783, at *1 (10th Cir. 2000); see also, e.g., Barney v. Pulsipher, 143 F.3d 1299, 1310 & n.10, 1312 n.15 (10th Cir. 1998). For the objective component, the plaintiff must allege facts to show that the harassment was objectively, sufficiently serious, causing an “unnecessary and wanton infliction of pain.” Joseph, 2000 WL 1532783, at *1-2 (internal quotation marks omitted) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994); Whitley v. Albers, 475 U.S. 312, 319 (1986); Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir. 1997)). As to the subjective component, the plaintiff must allege facts to show that the defendant acted with “‘deliberate indifference' to a substantial risk of serious harm to an inmate.” Barney, 143 F.3d at 1310 (quoting Farmer, 511 U.S. at 834); see also Joseph, 2000 WL 1532783, at *1-2.

         Where, as here, a prisoner alleges a guard made inappropriate or suggestive comments but did not touch him, courts have generally found the harassment was not sufficiently serious to meet the objective component of an Eighth Amendment claim. See, e.g., Barney, 143 F.3d at 1310 n.11 (noting that allegation of “severe verbal sexual harassment and intimidation” alone-in the absence of sexual “assault[ ]”-is insufficient to state an Eighth Amendment claim); Austin v. Terhune,367 F.3d 1167, 1171 (9th Cir. 2004) (“Although prisoners have a right to be free from sexual abuse, whether at the hands of fellow inmates or prison guards, ... the Eighth Amendment's protections do not necessarily extend to mere verbal sexual harassment.” (internal citation omitted)); Howard v. Everett,208 F.3d 218 (Table), 2000 WL 268493, at *1 (8th Cir. 2000) (unpublished) (sexual harassment consisting of comments and gestures, absent contact or touching, “does not constitute unnecessary and wanton infliction of pain”); Boddie v. Schnieder,105 F.3d 857, 861 (2d Cir. 1997) (isolated episodes of harassment and touching although “despicable, ” do not rise to level of Eighth Amendment violation). The Tenth Circuit has found that “[m]ere verbal threats or harassment do not rise to the level of a constitutional ...

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