United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA, UNITED STATES DISTRICT JUDGE
Brian Waterman, a prisoner in the Sedgwick County Jail,
brings this civil rights action pro se against a number of
defendants associated with the Cherokee County Jail. Some
defendants have been dismissed from the case, but the
following defendants remain: Sheriff David Groves, Michelle
Tippie, Thomas DeGroot, Amanda Phillips, and Judah Ellis. The
case is before the court on defendants' motion to dismiss
claims from plaintiffs original complaint remain:
• Count I - Fourteenth Amendment Due Process claim,
alleging that plaintiff was placed in segregation on March
17, 2018 and held for fifteen days without a legitimate
• Count III - First Amendment retaliation claim against
defendant Tippie based on two events:
• August 24, 2017 cessation of special diet in
retaliation for filing a grievance against defendant Tippie
for opening outgoing mail, and
• August 31, 2017 placement in segregation for stating
that he was going to file a grievance and contact a
government oversight agency about defendant Wagner (who has
been dismissed from the case); and
• Count VI - First Amendment claim regarding plaintiff s
right to observe his religion beginning on May 4, 2017.
have moved to dismiss all of plaintiff s remaining claims. As
grounds for dismissal, defendants make the following
arguments: (1) all official capacity claims are barred by the
Eleventh Amendment; (2) plaintiff fails to state a claim
against Sheriff Groves in his individual capacity; (3)
plaintiff fails to state a claim against Thomas DeGroot in
his individual capacity; (4) plaintiff fails to state a claim
in Count I because plaintiff was placed in segregation at his
own request for his own safety; (5) plaintiff fails to state
a claim against defendant Tippie in Count III because he
fails to allege facts showing how defendant Tippie was
involved in allegedly retaliatory decisions or that defendant
Tippie was aware of the threats made to defendant Wagner; (6)
plaintiff fails to state a claim in Count VI because he does
not allege that he holds any sincerely held religious
beliefs, what those beliefs are, how attending certain
religious services would be an expression of those beliefs,
how religious services have been unreasonably denied, and who
actually denied plaintiff access to services; and (7) in any
event, defendants are entitled to qualified immunity for any
of the actions complained of by plaintiff. For the following
reasons, the court grants defendants' motion in part and
denies it in part.
Standards of Review
move to dismiss claims both for lack of subject matter
jurisdiction under Fed.R.Civ.P. 12(b)(1) and for failure to
state a claim under Rule 12(b)(6). Under the Eleventh
Amendment, “an unconsenting State is immune from suits
brought in federal courts by her own citizens as well as by
citizens of another State.” Edelman v. Jordan,
415 U.S. 651, 662-63 (1974). A party asserting Eleventh
Amendment Immunity may move to dismiss under Rule 12(b)(1)
because “Eleventh Amendment Immunity concerns the
subject matter jurisdiction of the district court.”
Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir.
court will grant a 12(b)(6) motion to dismiss only when the
factual allegations fail to “state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Although the factual
allegations need not be detailed, the claims must set forth
entitlement to relief “through more than labels,
conclusions and a formulaic recitation of the elements of a
cause of action.” In re Motor Fuel Temperature
Sales Practices Litig., 534 F.Supp.2d 1214, 1216 (D.
Kan. 2008). The allegations must contain facts sufficient to
state a claim that is plausible, rather than merely
conceivable. Id. “All well-pleaded facts, as
distinguished from conclusory allegations, must be taken as
true.” Swanson v. Bixler, 750 F.2d 810, 813
(10th Cir. 1984); see also Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). The court construes any reasonable
inferences from these facts in favor of the plaintiff.
Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006).
as here, a plaintiff is proceeding pro se, the court
construes his pleadings liberally and holds the pleadings to
a less stringent standard than lawyer-drafted pleadings.
Erickson v. Pardus, 551 U.S. 89, 94 (2007);
McBride v. Deer, 240 F.3d 1287, 1290 (10th Cir.
2001). Liberal construction does not, however, “relieve
the plaintiff of the burden of alleging sufficient facts on
which a recognized legal claim could be based.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). The court need not accept as true those allegations
that state only legal conclusions. See Id. at 1110.