Kemmerly v. Hill

          MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE

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

         Plaintiff Christopher Daniel Kemmerly is hereby required to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why this action should not be dismissed due to the deficiencies in Plaintiff's Complaint that are discussed herein. Plaintiff is also given an opportunity to file a proper amended complaint to cure the deficiencies.

         I. Nature of the Matter before the Court

         Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that on March 22, 2019, Defendants violated his First, Fourth and Eighth Amendment rights when they seized and failed to mail out his letter to KAKE news regarding a fellow inmate's suicide. Plaintiff alleges that he was in lockdown so he had another inmate mail out the letter. Plaintiff believes this “strongly and with confidence, because the suicide was mentioned on TV but never a name . . . and [he] put the victim's name in the letter.” (Doc. 1, at 4, 13.) Plaintiff also alleges that he asked for the story to be aired on a specific day and time and it was not. Plaintiff alleges that a call to KAKE news will prove that his letter was seized in an attempt to quiet inmates.

         Plaintiff further alleges that the circumstances surrounding the inmate's suicide subjected Plaintiff to cruel and unusual punishment. Plaintiff alleges that “[t]here is nothing more cruel than to be subjected to immediate loss of life.” (Doc. 1, at 6.) Plaintiff alleges that proper welfare checks were not conducted for the inmate that committed suicide, and Plaintiff was the one that discovered his body after the suicide. Plaintiff alleges that he was not proffered “immediate” counseling, and was told to “kite mental health.” (Doc. 1, at 20-21.) The next day, Michele from Wellpath conducted a group session regarding the incident. When Plaintiff told them that the inmate had confided in Plaintiff that he was contemplating suicide prior to the suicide, Deputy Robbins told Plaintiff that it was just as much Plaintiff's fault, or more so, than Deputy Hill's. Plaintiff's feelings of “grief, guilt, remorse and sorrow were then emotionally skyrocketed by the blame Deputy Robbins . . . placed on [Plaintiff] the very next day.” (Doc. 1, at 23.) Plaintiff acknowledges that he has received medication in the form of a mood stabilizer, but argues that he has been denied a sleep aid.

         Plaintiff also alleges that the harsh fluorescent lights are kept on all day; the food is watered down; the bed mattresses are torn up or have holes; the jail is overcrowded; inmates are denied outside recreation; the jail was on lockdown during various times between March 17 and April 17, 2019, due to understaffing; in D.D. Pod-1A there is no pod porter; there is standing water causing mildew and gnats in the shower; a layer of food is crusted on the tables; there is a lack of cleaning supplies; mice excrement is present; cells are excessively hot; the windows are too high in the cells to permit an outside view; the water is hard and should be tested for chemicals; the acoustics are bad in the pods; deputies have been seen chewing tobacco; Plaintiff was given paper towels instead of toilet paper on one occasion; and some deputies are not conducting proper welfare checks. Plaintiff alleges that Deputy Williams assaulted Plaintiff by stepping toward Plaintiff and pushing him after Plaintiff punched the bubble glass and broke his hand. Plaintiff also alleges that he is being harassed, his cell is being searched, and his legal work is being illegally read by deputies.

         The remainder of Plaintiff's Complaint sets forth allegations regarding abuses suffered by other inmates and misclassifications of other inmates.^[1] Plaintiff also sets forth alleged facts regarding his fellow inmate's suicide. Plaintiff alleges that the violence against other inmates has Plaintiff living in perpetual fear for his own safety.

         Plaintiff names over thirty defendants, including staff from the Sedgwick County Sheriff's Department and Wellpath Mental Health. Plaintiff seeks $10, 000, 000 from each defendant “for mental/psychological and physical damages, ” and reimbursement for other expenses.

         II. Statutory Screening of Prisoner Complaints

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2).

         “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988)(citations omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). A court liberally construes a pro se complaint and applies “less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). In addition, the court accepts all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006). On the other hand, “when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, ” dismissal is appropriate. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007).

         A pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555 (citations omitted). The complaint's “factual allegations must be enough to raise a right to relief above the speculative level” and “to state a claim to relief that is plausible on its face.” Id. at 555, 570.

         The Tenth Circuit Court of Appeals has explained “that, to state a claim in federal court, a complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant did it; how the defendant's action harmed [the plaintiff]; and, what specific legal right the plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). The court “will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citation omitted).

         The Tenth Circuit has pointed out that the Supreme Court's decisions in Twombly and Erickson gave rise to a new standard of review for § 1915(e)(2)(B)(ii) dismissals. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007)(citations omitted); see also Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). As a result, courts “look to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief.” Kay, 500 F.3d at 1218 (citation omitted). Under this new standard, “a plaintiff must ‘nudge his claims across the line from conceivable to plausible.'” Smith, 561 F.3d at 1098 (citation omitted). “Plausible” in this context does not mean “likely to be true, ” but rather refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of ...