United States District Court, D. Kansas
MICHAEL R. CUNNINGHAM II, Plaintiff,
CURTIS HALL, Defendant.
MEMORANDUM AND ORDER
Crow U.S. Senior District Judge
Michael R. Cunningham II, currently a prisoner at the El
Dorado Correctional Facility (EDCF) in El Dorado, Kansas,
brings this pro se civil rights action pursuant to
42 U.S.C. § 1983. Plaintiff proceeds in forma
of the Matter before the Court
complaint (ECF No. 1) alleges he was subjected to cruel and
unusual punishment while an inmate at the Franklin County
Detention Center (FCDC) because he was deprived of regular
outdoor exercise. Plaintiff was remanded to the custody of
FCDC on January 4, 2019, after his arrest, and was confined
there until he was transferred to EDCF on May 9, 2019. He
alleges he was allowed outside recreation two (2) times in
that period. Plaintiff states he suffered mental and physical
stress as a result.
names as defendant Lieutenant Curtis Hall. He claims
violation of his right to be free from cruel and unusual
punishment under the Eighth Amendment. Plaintiff seeks
compensatory damages totaling $50, 000.
case, the defendant has filed a motion to dismiss for failure
to state a claim (ECF No. 7) and memorandum in support (ECF
No. 8) without being served. Plaintiff has responded (ECF No.
9, 10, 11, and 12), and the defendant has filed a reply to
Plaintiff's response (ECF No. 13). Normally, the Court
would have screened the case under 28 U.S.C. § 1915A(a)
and, in this case, issued an order directing the plaintiff to
show cause why the complaint should not be dismissed. If
Plaintiff filed a response, the Court would have considered
that response and either ordered the defendant to be served
or dismissed the complaint. However, because Defendant
voluntarily entered an appearance and filed a motion to
dismiss, and because Plaintiff has responded to that motion,
the Court takes up the motion.
Hall argues the complaint should be dismissed because the
conditions Plaintiff alleges do not constitute a
constitutional violation. Defendant further argues Plaintiff
did not allege his personal participation as required to
state a claim against him under §1983, and he is
entitled to qualified immunity.
Responses to the Motion
has filed four pleadings responding to the motion to dismiss.
In his Response to Defendant's Memorandum in Support of
Defendant's Motion to Dismiss (ECF No. 9), Plaintiff
argues prolonged denial of outdoor exercise could constitute
cruel and unusual punishment, citing a Ninth Circuit case
from 1979 and a Seventh Circuit case from 1985. In a pleading
titled “Notice to the Courts” (ECF No. 10),
Plaintiff ably disputes Defendant's characterization of
the opinion in Ajaj v. United States, 293 F.
App'x, 575 (10th Cir. 2008). In a pleading
titled “Motion to Show Good Cause” (ECF No. 11),
Mr. Cunningham states he was in solitary confinement to
ensure his safety for three out of the four months at issue,
and again argues prisoners are entitled to some out-of-cell
exercise, citing a Seventh Circuit case. He also complains
about Defendant ignoring his grievances related to this
issue. Finally, in a pleading titled “Motion to Show
Good Cause (No. 2)” (ECF No. 12), Plaintiff further
complains of Defendant's responses to his grievances,
this time in relation to two of Plaintiff's other
lawsuits pending in this Court. He argues this
Defendant's conduct demonstrates his deliberate
indifference to Plaintiff's well-being.
survive a motion to dismiss under Rule 12(b)(6), a complaint
must contain ‘enough facts to state a claim to relief
that is plausible on its face.'” Schrock v.
Wyeth, Inc., 727 F.3d 1273, 1280 (10th Cir. 2013)
(quoting Bell Atl. Corp. v. Twombly,550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal,556 U.S. 662, 678 (2009). When applying this
standard, a court must accept as true all well-pleaded
factual allegations and then ask whether those facts state a
plausible claim for relief. See Id. at 679. Viewing
the complaint in this manner, the Court must decide whether
the plaintiff's allegations give rise to more than
speculative possibilities. Id. “[W]here the