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Waterman v. Tippie

United States District Court, D. Kansas

February 19, 2019

BRIAN MICHAEL WATERMAN, Plaintiff,
v.
MICHELLE TIPPIE, 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 which alleges constitutional violations and seeks relief under 42 U.S.C. § 1983. The court proceeds 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

         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. A plausibility analysis is a context-specific task depending on a host of considerations, including judicial experience, common sense and the strength of competing explanations for the defendant's conduct. See id. at 679; Twombly, 550 U.S. at 567. 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).

         The court, however, will not accept broad allegations which lack sufficient detail to give fair notice of what plaintiff's claims are. Section 1983 plaintiffs 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 claims against him or her, as distinguished from collective allegations against the state.” Robbins v. Oklahoma ex rel. Dep't of Human Servs., 519 F.3d 1242, 1250 (10th Cir. 2008). This can be particularly important in prisoner litigation. Gee v. Pacheco, 627 F.3d 1178, 1185 (10thCir. 2010)(“A prisoner claim will often not be plausible unless it recites facts that might well be unnecessary in other contexts.”).

         III. Plaintiff's complaint

         Plaintiff, who has other cases in this court, is a pretrial detainee at the Cherokee County Jail. Plaintiff's complaint names three defendants: Michelle Tippie, the Captain of the Cherokee County Jail; Lara LNU, a kitchen cook for the jail; and Danny Davis, a kitchen supervisor for the jail.

         Plaintiff alleges five counts in the complaint. Count One alleges that for five days on or about November 1, 2018, there was a burning rubber smell in his cell. Plaintiff was left confined there with his “bean hole” closed. Plaintiff claims that he has asthma and that he did not receive a breathing treatment for approximately eight hours after one was ordered. Later, plaintiff was placed on antibiotics and twice-a-day breathing treatments. Plaintiff alleges that the failure to do more was in retaliation for plaintiff's bringing suit against defendant Tippie.

         Count Two alleges that on November 8 and November 10, 2018, plaintiff was served meals with less than 2000 calories for the day. Plaintiff alleges this was done by defendants Tippie, Lara LNU and Davis to retaliate against plaintiff and other inmates for filing grievances about the food. Plaintiff alleges that on one inmate's grievance, defendant Tippie stated that the meals are well above the guidelines and that she could cut it down. After that, plaintiff alleges, inadequate meals were served on December 8, 2018 and December 10, 2018.

         Count Three alleges that on November 28 or 29, 2018, the heater went out and the inmates' request for extra blankets was denied. Plaintiff alleges that the air temperature was 50 degrees or less and that no extra blankets were provided until December 2, ...


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