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Cunningham v. Hall

United States District Court, D. Kansas

August 27, 2019

MICHAEL R. CUNNINGHAM II, Plaintiff,
v.
CURTIS HALL, Defendant.

          MEMORANDUM AND ORDER

          Sam A. Crow U.S. Senior District Judge

         Plaintiff 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 pauperis.

         Nature of the Matter before the Court

         Plaintiff's 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.

         Plaintiff 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.

         Procedural Status

         In this 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.

         Motion to Dismiss

         Defendant 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.

         Plaintiff's Responses to the Motion

         Plaintiff 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.

         Legal Standards

         Rule 12(b)(6)

         “To 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 well-pleaded ...


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