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 § 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).
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
• 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
• 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.
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). 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.
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
Facts Relating to Count I
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.
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.
Facts Relating to Count II
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
. 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 ...