United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
CROW SENIOR U.S. DISTRICT JUDGE.
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
Nature of the Matter before the Court
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.
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.
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
remainder of Plaintiff's Complaint sets forth allegations
regarding abuses suffered by other inmates and
misclassifications of other inmates. 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.
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.
Statutory Screening of Prisoner Complaints
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. §
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).
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.
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).
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 ...