United States District Court, D. Kansas
MEMORANDUM AND ORDER
Thomas Marten J. Thomas Marten, Judge.
Brian Waterman is being held by the State of Kansas on
charges of Attempted First Degree Murder, Aggravated
Kidnaping, Aggravated Battery and Aggravated Burglary. The
present action is one of five lawsuits brought by Waterman
over his custody or the conditions of his
plaintiff here alleges that while he was held at the Cherokee
County Jail (1) he was exposed to carbon monoxide poisoning
coming through his cell's ventilation system, (2) that
his cell was cold, and (3) that he was not allowed to attend
religious services. Waterman alleges that the first two
events reflect violations of the Fourteenth Amendment by
Captain Tippie; he alleges that the third constitutes a
violation of his First Amendment rights by Captain Tippie and
Sergeant McAffee. For the reasons stated herein, the court
hereby grants the defendants' Motion to Dismiss.
defendants first argue that the plaintiff's official
capacity claims should be dismissed under the Eleventh
Amendment. The Tenth Circuit and this court have concluded
that Kansas Sheriffs are state officers for Eleventh
Amendment purposes. See Hunter v. Young, 238
Fed.Appx. 336, 338 (10th Cir. 2007); Gadbury v.
Bush, No. 14-3027, 2015 WL 3794441, at *2 (D. Kan. June
17, 2015). As Judge Murgia recently observed in addressing
one of the many lawsuits filed by the plaintiff attacking his
jailers, Waterman “has not offered a valid argument why
this court should not apply Eleventh Amendment immunity to
the sheriff and his officers here.” Waterman v.
Cherokee County Jail, No. 18-3092-CM, Dkt. 57, at 4. The
same is true in the present action, and all official capacity
claims against the defendants are dismissed.
plaintiff's carbon monoxide assertions - that he could
smell the gas in his cell and later showed elevated CO2
levels -- fail to present a plausible claim of dangerous
conditions of confinement. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Carbon monoxide (CO)
is a chemical dangerous to human health. But it is not the
same chemical as the relatively innocuous carbon dioxide
(CO2) referenced in Waterman's medical records. Moreover,
carbon monoxide has no color or odor. See Colony Ins. v.
Victory Constr., 239 F.Supp.3d 1279, 1286 (D. Or. 2017);
Sanchez-Knutson v. Ford Motor Co., 52 F.Supp.3d
1223, 1225 (S.D.Fla. 2014). It cannot be detected with human
senses. Ticheli v. Travelers Ins. Co., No.
1:14-CV-00172, 2015 WL 12734163, at *3 (N.D.N.Y. Mar. 14,
Waterman's allegations at most shows that he at some
point smelled an odor of some unknown source, and that months
later he had marginally elevated CO2 level in some blood
work. He has failed to present a plausible allegation of any
substantial risk of harm, and the claim is properly
court finds that the same result holds true as to the
allegation that Waterman was made to suffer from low
temperatures in his cell on two occasions. Reviewing the
pleadings, it appears that the first occasion lasted some
four days, when the plaintiff was subjected to low
temperatures because of a malfunctioning heater. During this
period, Waterman had a sheet and a blanket; his complaint is
that he should have an extra blanket. But the pleadings
indicate that extra blankets were in fact given out on
Sunday, after the heater failed on Thursday. More
importantly, as to the claim against Captain Tippie, the
pleadings indicate that she left work the day the heater
failed, and was not present for the following few days.
Waterman has failed to plausibly allege that the Captain
should be liable for the conditions of confinement during the
plaintiff also alleges that he was also subjected to cold
temperatures for a week when he was later placed in
administrative segregation. Again, Waterman was eventually
given an extra blanket. The complaint fails to assert any
lasting injury from the condition, and while the plaintiff
alleges that Captain Tippie knew the segregation unit was not
warm, the complaint lacks any allegation that the defendant
knew at the time the segregation began that the single
blanket already in the cell was insufficient. The plaintiff
has failed to show that the low temperature in the
segregation unit rose to a constitutional deprivation.
See Mays v. Springborn, 575 F.3d 643 (7th Cir. 2009)
(finding no constitutional violation for more severe exposure
the court finds that plaintiff's First Amendment claim
should be dismissed. Waterman alleges that he missed two
religious services after he was moved into non-punitive
segregation on October 11, 2018. The defendants argue that
Waterman has failed to show either that he had some definite
religious belief, or that it was substantially infringed in
any way. The court finds it need not resolve the former
contention, in light of the substantial body of authority
agreeing with the latter - that missing up to two religious
services “does not substantially burden a
prisoner's right to freely exercise his religion.”
See Powell v. City of New York, 2016 U.S. Dist LEXIS
94186 *14 (S. D. N.Y., 2016). After the brief period of
denial, Waterman was allowed to attend religious services by
himself. The plaintiff has failed to show any violation of a
right to group religious services. See Gowers v.
Haleen, 2013 U.S. Dist. LEXIS 49709 *34-35 (D. Utah,
April 4, 2013).
the court finds that the defendants in their individual
capacities are protected by Eleventh Amendment immunity, and
that the plaintiff has otherwise failed to present plausible
claims of constitutional violations, the court need not
address the defendants' additional arguments relating to
ACCORDINGLY ORDERED this day of July, 2019, that the
defendants' Motion to Dismiss (Dkt. 17) is hereby
 The other cases are Waterman v.
Crawford County Jail, No. 18-3035-SAC (alleging
inadequate food at the Crawford County Jail), dismissed by
the court on June 4, 2018 (Dkt. 28), appeal dismissed Oct.
10, 2018 (Dkt. 40); Waterman v. Cherokee County
Jail, No. 18-3092-CM (alleging retaliatory segregation);
Waterman v. Bd. of Com'rs of Cherokee County,
No. 18-3135-CM (alleging due process, unconstitutional
dietary police, and excessive force), most of the action
dismissed June 26, ...