Waterman v. Board of County Commissioners of Cherokee County, Kansas

          MEMORANDUM AND ORDER

          CARLOS MURGUIA, UNITED STATES DISTRICT JUDGE

         Plaintiff Brian Waterman, a prisoner in the Sedgwick County Jail, brings this § 1983 civil rights action pro se against a number of defendants associated with the Cherokee County Jail. The case is before the court on defendants' Motion to Dismiss Amended Complaint (Doc. 97), filed by defendants Board of County Commissioners for Cherokee County Kansas, David Groves, Michelle Tippie, Thomas DeGroot, Aryek Smith, and Amanda Phillips. Also pending is plaintiffs Motion for Evidentiary Hearing (Doc. 119).

         The amended complaint contains five claims:

• Count I - Excessive force claim against defendant Smith; . Count II - Denial of due process claim against defendants Tippie and DeGroot for denial of disciplinary hearings;

• Count III - Unconstitutional dietary policy against defendant Kristin Wagner, the nurse at Cherokee County Jail, Danny Davis, who provides food service at the jail, and possibly against defendants Groves and Tippie;

• Count IV - Excessive force claim against defendant DeGroot; and

• Count V - Medical neglect claim against nurse Wagner for failure to treat a staph infection. Defendants have moved to dismiss all of plaintiff s claims except Count V. They argue that dismissal is warranted for the following reasons: (1) plaintiffs complaint fails to state a claim against the Board of County Commissioners; (2) the official capacity claims are barred by the Eleventh Amendment; (3) the excessive force claims are barred by qualified immunity; and (4) Counts II and III fail to state a claim because (a) plaintiff has not adequately alleged a due process violation for Count II, (b) the dietary policy is constitutional in Count III, and (c) plaintiff does not adequately allege a claim against defendant Phillips.

         I. Standards of Review

         Defendants 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. 2002).

         The 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).

         When, 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). But liberal construction does not “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.

         II. Factual Background

         The following facts are taken from plaintiff's complaint and are viewed in the light most favorable to plaintiff. Defendants have offered video recordings of the two events allegedly involving excessive force. But because plaintiff has challenged the authenticity of the videos submitted, the court has not considered the content of the video recordings. See Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002) (citing GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997)) (“In addition to the complaint, the district court may consider documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity.”). This also removes the need for any type of evidentiary hearing, as requested by plaintiff in Doc. 119.

         A. Facts Relating to Count I

         On September 8, 2017, defendant Smith pushed plaintiff from the back with both hands to get him into his cell. The two had engaged in an unfriendly exchange before defendant Smith took plaintiff to his cell. Before reaching the cell (and being pushed), plaintiff claims that he slowed down to fix his shoe, but he does not allege that defendant Smith knew that was the reason he slowed down.

         Plaintiff alleges that the push resulted in whiplash to his neck. Plaintiff does not allege that he immediately complained of pain or requested medical attention. But he claims that he was placed on medication for neck pain four days later.

         B. Facts Relating to Count II

         Plaintiff claims that defendants Tippie and DeGroot have denied him “countless disciplinary hearings” and that the hearings he has been given have been inadequate. Plaintiff identified six specific instances in which he was denied due process:

. June 24, 2017: Plaintiff was written up eighteen times “due to his food being bad” and two false reports were made. The officers allegedly involved are not parties to this action. Plaintiff does not allege a punishment.

. August 31, 2017 - September 5, 2017: Received no disciplinary hearings “for any writeups.” He does not allege who wrote him up or denied him hearings. He also does not allege a punishment.

. September 2, 2017: A non-party officer fabricated an accusation that plaintiff threatened staff. Plaintiff was not given a hearing. Plaintiff does ...