Rowe v. Sumner County

          MEMORANDUM AND ORDER

          SAM A. CROW, U.S. SENIOR DISTRICT JUDGE

         This matter is a civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff, a prisoner, proceeds pro se and seeks leave to proceed in forma pauperis.

         The motion to proceed in forma pauperis

         This motion is governed by 28 U.S.C. § 1915(b). Because plaintiff is a prisoner, he must pay the full filing fee in installment payments taken from his prison trust account when he “brings a civil action or files an appeal in forma pauperis[.]” § 1915(b)(1). Pursuant to § 1915(b)(1), the court must assess, and collect when funds exist, an initial partial filing fee calculated upon the greater of (1) the average monthly deposit in his account or (2) the average monthly balance in the account for the six-month period preceding the filing of the complaint. Thereafter, the plaintiff must make monthly payments of twenty percent of the preceding month's income in his institutional account. § 1915(b)(2). However, a prisoner shall not be prohibited from bringing a civil action or appeal because he has no means to pay the initial partial filing fee. § 1915(b)(4).

         The financial statement supplied by the correctional facility where plaintiff is incarcerated reflects an average deposit of $0.48 and an average balance of $0.53 during the six months preceding the filing of this action. The Court therefore grants leave to proceed in forma pauperis and does not assess an initial partial filing fee. Plaintiff remains obligated to pay the $350.00 filing fee in installments calculated under 28 U.S.C. § 1915(b)(2), and a copy of this order will be transmitted to his present custodian with instructions to commence collection action as funds become available.

         The motion for appointment of counsel

         Plaintiff moves for the appointment of counsel. There is no constitutional right to the appointment of counsel in a civil matter. Carper v. Deland, 54 F.3d 613, 616 (10^th Cir. 1995); Durre v. Dempsey, 869 F.2d 543, 547 (10^th Cir. 1989). Rather, the decision whether to appoint counsel in a civil action lies in the discretion of the district court. Williams v. Meese, 926 F.2d 994, 996 (10^th Cir. 1991). The party seeking the appointment of counsel has the burden to convince the court that the claims presented have sufficient merit to warrant the appointment of counsel. Steffey v. Orman, 461 F.3d 1218, 1223 (10^th Cir. 2016)(citing Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10^th Cir. 2004)). It is not enough “that having counsel appointed would have assisted [the movant] in presenting his strongest possible case, [as] the same could be said in any case.” Steffey, 461 F.3d at 1223 (citing Rucks v. Boergermann, 57 F.3d 978, 979 (10^th Cir. 1995)). The Court should consider “the merits of the prisoner's claims, the nature and complexity of the factual and legal issues, and the prisoner's ability to investigate the facts and present his claims.” Rucks, 57 F.3d at 979.

         The Court has studied the complaint and declines to appoint counsel at this time. Plaintiff is able to present his claims clearly, and the claims do not appear to be unusually complex.

         Nature of the complaint

         Plaintiff commenced this complaint while housed in the Sumner County Detention Center (SCDC), Wellington, Kansas, pending his extradition to Oklahoma.

         The complaint names the following defendants: (1) Sumner County; (2) Sheriff Derrin Chambers; (3) Sgt. Church; (4) Lt. A. Yoder; (5) Sgt. Wesley Baucom; (6) Cpl. Fairbanks; (7) Cpt. Carson; (8) Cpl. Mckaig; (9) Cpl. Schwartz; (10) Dep. Durham; (11) Dep. Kratt; (12) Dep. Warner; (13) Dep. Biddle; (14) Dep. Patterson; (15 - 18) John or Jane Does 1-4; and (19) Nurse Mandy.

         The complaint asserts the following claims: Count 1: Doe #1 endangered plaintiff by labeling him as racist and spreading that information to staff and the population of the SCDC, and Doe #2 contributed to conditions in the environment there; Count 2: Defendants Sumner County, Chambers, Yoder, and Baucom were made aware of harm caused by Doe #2 and allowed the risk to continue; specifically, plaintiff alleges that he was assaulted and sexually abused by another inmate, Terrill Cooks, as a direct result of being labEled as a racist. He states that Cooks approached him in the SCDC day room and demanded the television remote, which plaintiff refused to hand over. Cooks then picked up a wooden broom and began to walk upstairs to where another prisoner, Arrell Farmer, was temporarily locked down due to misconduct. Farmer and Cooks began to verbally harass and threaten plaintiff with assault. Plaintiff remained in his seat in the day room for approximately four and a half hours. During that time he experienced shortness of breath, nausea, and other symptoms.

         When Farmer was released from lockdown at 9 p.m., he and Cooks returned to the day room, and one or both slapped plaintiff in the face. They then attempted to force plaintiff into the shower area, but deputies interrupted this attempt and separated the inmates. Plaintiff was interviewed and placed in isolation for two hours. Farmer and Cooks were placed in another pod and placed in lockdown for 14 days. All three prisoners were changed from orange to green clothing to identify them as separatees. On the following day, plaintiff filed a grievance against Doe #2 for endangering his safety; he also filed a complaint under the Prison Rape Elimination Act, 34 U.S.C. § 30301 (PREA), in which he identified the assault as a hate crime based upon his bisexuality. Plaintiff also asked to speak with defendant Yoder. Lt. Yoder met with plaintiff on the next day and plaintiff stated his belief that he was the victim of a hate crime and his belief that staff at the SCDC had created a dangerous environment that violated PREA standards. Lt. Yoder advised plaintiff that he would investigate the plaintiff's claims. Following this, plaintiff spoke with unnamed “Patrol Deputies” and advised them that he wished to press charges against Cooks for attempted sexual assault. Count 3: Defendant Durham endangered plaintiff's safety by leaving him alone in a hallway with Cooks while taking him to a medical appointment. Plaintiff estimates that he was alone with Cooks for two minutes. Cooks verbally threatened plaintiff. Plaintiff called defendant Durham who removed Cooks. Plaintiff filed a grievance against Durham, alleging gross negligence and stating that defendants were not enforcing PREA standards.

         Count 4: Defendants Sumner County, Chambers, Yoder, and Baucom failed to protect plaintiff resulting in the assault on him. Sgt. Baucom met with plaintiff on September 17, 2018, to discuss his grievance. Plaintiff sought an explanation for why he had not been allowed to see a sexual abuse crisis counselor. Plaintiff's grievance was rejected, and he filed a second grievance demanding to see a sexual abuse crisis counselor. On the next day, he was seen by defendant Yoder. Plaintiff complained that SCDC staff has endangered him and again asked to see a sexual abuse crisis counselor.

         Count 5: Defendants Doe #3 and Baucom “opened, sequestered, molested, and then defaced” plaintiff's legal mail on two occasions. Count 6: Defendants Nurse Mandy and Doe #4 denied plaintiff access to emergency mental health services. Plaintiff sought mental health services on October 11, 2018, and was seen by defendant Mandy. After discussing the nature of his complaint, defendant Mandy sent plaintiff back to his housing area.

         Count 7: Defendants Sumner County, Chambers, Baucom, Carson Schwartz, Fairbanks, Warner, and Kratt violated by plaintiff's right to be protected from retaliation, subjected him to cruel and unusual punishment, and denied him due process. Plaintiff met with defendants Schwartz and Yoder and discussed his claims concerning the processing of his legal mail. Plaintiff also complained that defendants had conspired to present his exhaustion of remedies and had failed to address his concerns of emotional duress and related physical symptoms.

         Count 8: Defendants Doe #1, Sumner County, Chambers, Yoder, and Church victimized plaintiff sexually and subjected him to voyeurism. Count 9: Defendants Sumner County “et al” retaliated against plaintiff. The SCDC has a closed circuit camera that is installed in each cell in the facility. Plaintiff complains that upon his entry at the SCDC he was not informed of PREA compliance policies and was not advised of monitoring by the camera system that would subject him to cross-gender viewing of him by staff.

         On two occasions in 2017, plaintiff witnessed altercations between inmates that left blood in the pod. Plaintiff asked that the area be cleaned, and then asked for supplies to allow him to clean the area.

         Plaintiff submitted a PREA complaint on the SCDC kiosk system in August 2018. Shortly afterward, he was placed in a segregation cell and held there for approximately two hours in shackles. He met with defendant Church and presented his complaints.

         In October 2018, plaintiff saw Sumner County mental health services. That counselor diagnosed plaintiff with post traumatic stress disorder and advised plaintiff that he was ordering medication. Plaintiff did not receive the ...