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Kelley v. Wright

United States District Court, D. Kansas

December 9, 2019

KEIFLAN BROCK KELLEY, Plaintiff,
v.
TRAVIS WRIGHT, et al., Defendants.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON, CHIEF UNITED STATES DISTRICT JUDGE.

         Plaintiff Keiflan Brock Kelley filed this pro se action against Defendants Travis Wright, Sheriff Jack Laurie, the Atchison County Jail, and Atchison County, Kansas, alleging violations of his constitutional rights based on events that occurred while he was detained at the Atchison County Jail. Plaintiff seeks damages for the use of excessive force, police brutality, harassment, pain and suffering, mental anguish, and emotional depression and stress.[1] This matter is now before the Court on Defendants' Motion for Judgment on the Pleadings (Doc. 7). For the reasons set forth below, Defendants' motion is granted.

         I. Legal Standard

         The Court reviews a motion brought pursuant to Fed.R.Civ.P. 12(c) under the same standard that governs Rule 12(b)(6) motions.[2] To survive a motion to dismiss under Rule 12(b)(6), a complaint must present factual allegations that, assumed to be true, “raise a right to relief above the speculative level, ” and must contain “enough facts to state a claim to relief that is plausible on its face.”[3] “[T]he complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.”[4] The plausibility standard does not require a showing of probability that a defendant has acted unlawfully, but requires more than “a sheer possibility.”[5] “[M]ere ‘labels and conclusions,' and ‘a formulaic recitation of the elements of a cause of action' will not suffice; a plaintiff must offer specific factual allegations to support each claim.”[6] Finally, the Court must accept the nonmoving party's factual allegations as true and may not dismiss on the ground that it appears unlikely the allegations can be proven.[7]

         The Supreme Court has explained the analysis as a two-step process. For the purposes of a motion to dismiss, the Court “must take all of the factual allegations in the complaint as true, ” but is “not bound to accept as true a legal conclusion couched as a factual allegation.”[8] Thus, the Court must first determine if the allegations are factual and entitled to an assumption of truth, or merely legal conclusions that are not entitled to an assumption of truth.[9] Second, the Court must determine whether the factual allegations, when assumed true, “plausibly give rise to an entitlement to relief.”[10] “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.”[11] A motion for judgment on the pleadings should not be granted unless the movant has established that there are no material facts to be resolved and that the movant is entitled to judgment as a matter of law.[12]

         Because Plaintiff proceeds pro se, some additional considerations frame the Court's analysis. The Court must construe Plaintiff's pleadings liberally and apply a less stringent standard than that which applies to attorneys.[13] “Nevertheless, [Plaintiff] bears ‘the burden of alleging sufficient facts on which a recognized legal claim could be based.'”[14] The Court may not provide “additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.”[15] Additionally, a pro se litigant is not excused from complying with the rules of the court and is subject to the consequences of noncompliance.[16]

         II. Factual Background

         The Court derives the following facts from Plaintiff's Complaint and construes them in the light most favorable to Plaintiff. Plaintiff was in custody at the Atchison County Jail in February 2019. On or around February 21, 2019, the jail granted Plaintiff's request meet with Defendant Travis Wright.[17] During the meeting, which took place at the jail's intake area, Wright became hostile and argued with Plaintiff. Wright approached Plaintiff in an aggressive manner and commanded him to return to his pod. Plaintiff complied, and Wright followed behind shouting at Plaintiff. Plaintiff told Wright that he was making him uncomfortable, and the two exchanged unpleasant words. Upon reaching the pod's sliding door, Wright uncuffed Plaintiff's hands and told him to go to lockdown. Plaintiff complied and started walking upstairs, with Wright continuing behind him. Wright then began touching and grabbing Plaintiff's arm, despite Plaintiff's compliance with his order.

         At Plaintiff's cell door, Wright twisted Plaintiff's arm and wrist multiple times, handcuffed him, and then twisted his arm and wrist again. Wright kept Plaintiff's arm twisted, then lifted Plaintiff's arms in the air while the two walked back down the stairs. Wright took Plaintiff to the intake holding cell, where he remained overnight. Wright removed the mattress and toilet paper from the holding cell, leaving Plaintiff to sleep on the bunk with no blanket for twelve hours. This confinement also resulted in Plaintiff missing his “hour out that day, ” dinner, and laundry service.[18]

         Throughout these interactions, Wright verbally harassed and intimidated Plaintiff, including through the use of racist slurs and threatening to violently attack Plaintiff. After his interactions with Wright, Plaintiff requested medical attention for “extremely sore” shoulders, wrist, and neck, but was denied medical care until the following morning.[19] He also alleges that Wright's actions caused him to experience numbness and loss of mobility in one hand.

         Doc 4. at 2. It logically follows that Plaintiff's additional factual allegations, regarding events immediately after those admitted by Defendants, also refer to Wright.

         III. Discussion

         A. Failure to Respond

         As an initial matter, Plaintiff has failed to respond to Defendants' motion for judgment on the pleadings, and the Court may grant Defendants' motion on that basis alone. Under D. Kan. Rule 7.4(b),

[a]bsent a showing of excusable neglect, a party or attorney who fails to file a responsive brief or memorandum within the time specified in D. Kan. Rule 6.1(d) waives the right to later file such brief or memorandum. If a responsive brief or memorandum is not filed within the D. Kan. Rule 6.1(d) time requirements, the court will consider and decide the motion as an uncontested motion. Ordinarily, the court will grant the motion without further notice.

         Defendants filed their motion on September 11, 2019 and served Plaintiff on that date by U.S. Mail at two addresses, one of which was his address of record with the Court. However, on September 19, 2019, Defendants filed an additional “Notice of Service” indicating that they had also served Plaintiff with the motion by email and at a new street address, which was previously unknown to the Court.[20] Calculating twenty-one days from this second service attempt, Plaintiff's response to Defendants' motion for judgment on the pleadings was due on October 10, 2019.

         When Plaintiff failed to respond, the Court issued an Order to Show Cause directing Plaintiff to show cause in writing, on or before November 7, 2019, why Defendants' motion for judgment on the pleadings should not be granted as unopposed.[21] The Court also ordered Plaintiff to file a response to Defendants' motion by the same date. The Court warned Plaintiff that if he failed to respond to the show-cause order, or to file a response to Defendants' motion for judgment on the pleadings as directed, the Court would consider Defendants' motion as unopposed as described in D. Kan. Rule 7.4(b). The Clerk of the Court sent a copy of the show-cause order to Plaintiff at the updated address provided by Defendants by both regular and certified mail. The Court has since received a certified mail receipt signed by Plaintiff showing that Plaintiff received the order at this address.[22]

         To date, Plaintiff has filed no response to either the Court's show-cause order or Defendants' motion for judgment on the pleadings. Accordingly, the Court may grant Defendants' motion as uncontested. Out of an abundance of caution, the Court considers the substance of the motion below.

         B. Plaintiff's Claims

         Defendants state, and the Court agrees, that Plaintiff appears to invoke 42 U.S.C. § 1983 as the basis for his claims arising under the Constitution. Section 1983 provides a cause of action for the deprivation of federal rights by any person acting “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . .”[23] The statute “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'”[24]

         As discussed further below, it appears that Plaintiff alleges the violation of his rights under the Fourteenth Amendment regarding the use of excessive force and failure to provide medical care. Plaintiff's Complaint might also be construed to allege that the conditions of his pretrial confinement subjected him to punishment and/or inhumane conditions in violation of the Fourteenth Amendment. Defendants argue that Plaintiff's claims fail for multiple reasons, including that Plaintiff has named improper defendants, that Plaintiff has failed to allege facts sufficient to state a claim, and that Defendants are entitled to immunity from suit. The Court addresses each Defendant in turn.

         1. Defendant Atchison County Jail

         Plaintiff's claims against the Atchison County Jail must be dismissed because the jail is not an agency amenable to suit. Under Fed.R.Civ.P. 17(b), the capacity of a party to be sued in federal court is to be determined by the law of the state where the court is located.[25] Kansas courts have held that “[s]ubordinate government agencies, in the absence of statutory authorization, ordinarily do not have the capacity to sue or be sued.”[26] Here, there is no authority granting the Atchison County Jail the capacity to sue or be sued and, under Kansas law, courts have found that county jails lack such capacity.[27] Thus, the Court must dismiss Plaintiff's claims against the Atchison County Jail.

         2. Defendant Atchison County

         Based on the heading of Plaintiff's handwritten Complaint, Plaintiff likely did not intend to name Atchison County as a defendant. Instead, it appears Plaintiff merely wrote “Atchison County, KS” to provide the geographical location of the other three Defendants.[28] This is supported by Plaintiff's second heading, which reads, “Petition filing A Civil Lawsuit Against Travis Wright (A.C.J.) (Sheriff Jack Laurie).”[29] Atchison County is not mentioned in this second heading or anywhere else in Plaintiff's Complaint. If Plaintiff did intend to include Atchison County, he has improperly named this defendant. Under Kansas law, “[i]n all suits or proceedings by or against a county, the name in which the county shall sue or be sued shall be ‘The board of county commissioners of the county of __.'”[30] Plaintiff's Complaint failed to follow this format and, in any event, amendment to substitute the proper defendant would be futile.

         Though a county may be liable for acts of its employees under § 1983, “a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents” under a theory of respondeat superior.[31] Instead, to hold a county liable under § 1983 for acts of its employees, a plaintiff must establish that the municipality has a policy or custom that directly caused the deprivation of rights.[32] As discussed in greater detail below in the context of any official-capacity claim against Defendant Sheriff Laurie, Plaintiff fails to allege any facts indicating that a County policy or custom caused a violation of his constitutional rights and his claims against the County must therefore be dismissed.

         3. Defendant Sheriff Jack Laurie

         Sheriff Laurie's name appears twice in the heading of Plaintiff's Complaint.[33]Throughout the remainder of the Complaint, Plaintiff makes no allegation that Laurie took any action or had any direct involvement in the incident on February 21, 2019 at the Atchison County Jail. Further, Plaintiff does not specify whether he is suing Laurie in his official or individual capacity.

         To the extent that Plaintiff brings claims against Laurie in his official capacity, Defendants assert that he is entitled to Eleventh Amendment immunity from suit. The Eleventh Amendment bars a claim for money damages against a state defendant in his official capacity.[34]However, the Court must consider whether Laurie acted as an officer of Atchison County rather than the State of Kansas. This determination requires the application of a “four-factor inquiry, taking into account (1) how the entity is characterized under state law; (2) the entity's degree of autonomy; (3) the sources of the entity's operating funds; and (4) whether the entity deals primarily with local or state concerns.”[35] “[T]he question is not whether the sheriff acts for the state or the county in some categorical, ‘all or nothing' manner, but rather whether the sheriff acted for the state in a particular area, or on a particular issue.”[36]

         The Court follows the reasoning set forth in Reyes v. Board of County Commissioners of Sedgwick County, Kansas and finds that for the purposes of this case, in which Plaintiff alleges unconstitutional conduct in a county jail, Laurie would have acted as an arm of Atchison County rather than the State of Kansas.[37] Thus, any official-capacity claim against him is the equivalent of an action against the Atchison County Board of County Commissioners.[38] While the County is not entitled to Eleventh Amendment immunity, [39] Plaintiff's claims against it must be dismissed nonetheless because Plaintiff has failed to allege that Atchison County has a policy or custom that directly caused the deprivation of his rights under the Constitution.

         The Tenth Circuit has articulated the following bases for municipal liability under § 1983:

Municipal liability may be based on a formal regulation or policy statement, or it may be based on an informal “custom” so long as this custom amounts to “a widespread practice that, although not authorized by written law or express municipal policy, is ‘so permanent and well settled as to constitute a “custom or usage” with the force of law.'” Municipal liability may [ ] also be based on the decisions of employees with final policymaking authority or the ratification by such final policymakers of the decisions-and the basis for them-of subordinates to whom authority was delegated subject to these policymakers' review and approval. Finally, municipal liability may be based on injuries caused by a failure to adequately train or supervise employees, so long as that failure results from “deliberate indifference” to the injuries that may be caused.[40]

         To give rise to municipal liability, an informal practice or custom must be “so widespread as to have the force of law.”[41] Further, the Tenth Circuit has held that the practice or custom must be “closely related to the violation of the plaintiff's federally protected right.”[42]

         Plaintiff has not alleged facts sufficient to bring a County policy, regulation, or well-settled custom into play here. Although Plaintiff's Complaint includes in parentheses the phrases “lack of proper training” (after his count for “police brutality”) and “not protecting inmate” (after his count for “excessive force”), [43] the Supreme Court has held that “[o]nly where a municipality's failure to train its employees in a relevant respect evidences a ‘deliberate indifference' to the rights of its inhabitants can such a shortcoming be properly thought of as a . . . ‘policy or custom' that is actionable under § 1983.”[44] “The deliberate indifference standard may be satisfied when the municipality has actual or constructive notice that its action or failure to act is substantially certain to result in a constitutional violation, and it consciously or deliberately chooses to disregard the risk of harm.”[45] Similarly, a failure to protect or supervise claim would require a showing of “deliberate indifference to inmate health or safety.”[46]Plaintiff's conclusory use of the phrases “lack of proper training” and “not protecting inmate, ” without supporting factual content, is insufficient to state a claim.

         Turning to Plaintiff's individual-capacity claims against Laurie, if any, “a defendant sued in an individual capacity may be subject to personal liability and/or supervisory liability.”[47]Again, there appears to be no allegation here of Laurie's personal participation in the events underlying this action. As to supervisory liability, in order to impose liability under § 1983 on a defendant-supervisor not directly involved in an incident, the plaintiff must “plausibly plead and eventually prove not only that the official's subordinates violated the Constitution, but that the official by virtue of his own conduct and state of mind did so as well.”[48] For example, “[a] defendant supervisor's promulgation, creation, implementation, or utilization of a policy that caused a deprivation of [the] plaintiff's rights could . . . constitute[] sufficient personal involvement.”[49] Alternatively, a defendant supervisor may be liable if he fails to supervise subordinates, thereby resulting in constitutional harm to the plaintiff.[50]

         Plaintiff has simply failed to allege facts sufficient to state a claim against Laurie. Plaintiff's Complaint does not specify which claims are asserted against Laurie or allege facts establishing Laurie's personal involvement in or responsibility for the conduct at issue. Again, the Court may not provide “additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf, ”[51] and any claim against Laurie in either his official or individual capacity must therefore be dismissed. Further, as set forth below, any official-capacity or individual supervisory-liability claim against Laurie also fails because Plaintiff has failed to sufficiently allege facts establishing that Wright-the only Defendant whose personal conduct is described in the Complaint-committed a constitutional harm.[52]

         4. Defendant Travis Wright

         Wright asserts the defense of qualified immunity to Plaintiff's claims against him.[53]“Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions.”[54] To this end, qualified immunity shields government officials from liability for money damages unless the plaintiff pleads sufficient facts showing that the official violated a federal statutory or constitutional right, and that the right the official violated was “clearly established” at the time of the challenged conduct.[55] Generally, for a right to be considered clearly established, “there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.”[56] The Supreme Court “has held that qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.'”[57]“[I]f a reasonable officer might not have known for certain that the conduct was unlawful-then the officer is immune from liability.”[58] Courts have discretion to decide which of the two prongs of the qualified immunity analysis to address first.[59]

         As with respect with the other Defendants, Plaintiff has not stated precisely which of his constitutional rights he contends Wright violated. The Court's “first task in any § 1983 suit alleging a constitutional violation is ‘to isolate the precise constitutional violation with which [the defendant] is charged.'”[60]

         Turning first to Plaintiff's excessive-force claim, a plaintiff can assert such a claim under the Fourth, Fifth, Eighth, or Fourteenth Amendment, but “each carries with it a very different legal test.”[61] The standard to be applied depends on precisely where the plaintiff was in the criminal justice system at the time of the challenged conduct.[62] Relevant here, the Fourteenth Amendment “governs any claim of excessive force against a state official by a ‘pretrial detainee.' In this context, a ‘pretrial detainee' is one who has had a ‘judicial determination of probable cause as a prerequisite to [the] extended restraint of his liberty following arrest.'”[63] Given Defendants' statement that Plaintiff was a “pretrial detainee”[64] at the time of the events in question, as well as Plaintiff's allegation that on the day in question, “Plaintiff was granted his request to talk and meet with the defendant . . . as per requested all week, ”[65] it appears that Plaintiff had been detained for some time but not yet tried, and that his excessive-force claim therefore invokes the Fourteenth Amendment.

         To determine whether the use of force is excessive under the Fourteenth Amendment, courts “apply an objective standard, which requires that [the plaintiff] ‘show only that the force purposely or knowingly used against him was objectively unreasonable.'”[66] In an opinion issued earlier this year, the Tenth Circuit affirmed the district court's dismissal under Rule 12(b)(6), finding, with respect to the plaintiff's allegation that two detention officers pushed him down a hallway with his arm twisted and held behind his back, that “[i]t is not objectively unreasonable for a jail officer to hold a detainee's arm and push him, even awkwardly, through a jail hallway.”[67] As to the plaintiff's additional claim that officers “slung [him] forward into [his] cell [thereby] hurting [his] neck, back, shoulder and throat, ”[68] the court found that the plaintiff had failed to cite existing precedent establishing the violation of a clearly established right to overcome a qualified immunity defense.[69]

         Plaintiff's allegations in this case are similar, and the Court finds that he has failed to allege the use of objectively unreasonable force. Moreover, even if Plaintiff has alleged objectively unreasonable force, he failed to respond to Defendants' motion and therefore has not met his burden of establishing that the right in question was clearly established at the time of the incident at the Atchison County Jail. Consequently, Wright is entitled to qualified immunity from Plaintiff's excessive-force claim.

         Turning next to Plaintiff's claim for the denial of medical care, although “[a] prison official's deliberate indifference to an inmate's serious medical needs violates the Eighth Amendment, ”[70] pretrial detainees such as Plaintiff “cannot invoke the Eighth Amendment, which applies only to those convicted of a crime.”[71] However, “[u]nder the Fourteenth Amendment's due process clause, pretrial detainees . . . are entitled to the same degree of protection regarding medical attention as that afforded convicted inmates under the Eighth Amendment.”[72] In either type of case, claims of “inadequate medical attention . . . must ...


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