Alvarado v. Alexander

• Court: District Court, D. Kansas
• Decided: November 22, 2022
• Docket: 5:22-cv-03275
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

ANTHONY C. ALVARADO,

Plaintiff,

v. CASE NO. 22-3275-JWL-JPO

TAMMY ALEXANDER, et. al,

Defendants.

MEMORANDUM AND ORDER TO SHOW CAUSE

Plaintiff Anthony C. Alvarado is hereby required to show good cause, in writing to the undersigned, why this action should not be dismissed due to the deficiencies in Plaintiff’s Complaint that are discussed herein. I. Nature of the Matter before the Court Plaintiff filed this pro se case under 42 U.S.C. § 1983. The Court granted Plaintiff leave to proceed in forma pauperis. Plaintiff is in custody at the Franklin County Jail in Ottawa, Kansas (“FCJ”). As Count I, Plaintiff claims that on August 28, 2022, Corporal Smith asked Plaintiff to pass her trays that inmate Josh Duncan was holding hostage until he could speak to Lt. Alexander and Sgt. Garner. Plaintiff refused, telling Cpl. Smith that it could cause him to get in a fight with Duncan. (Doc. 1, at 4.) Plaintiff alleges that this singled him out and he was told to do something no one else was told to do. Id. Plaintiff alleges that the next day, Lt. Alexander and Sgt. Garner handed Plaintiff a disciplinary report for his refusal to hand over the trays. Id. at 8. The report states that Plaintiff refused to hand over the trays “because he understands why Josh Duncan is mad.” Id. Plaintiff’s appeal was denied and Lt. Alexander told Plaintiff that Plaintiff could have been charged with aiding Duncan. Id. Plaintiff alleges that he lost privileges for five days. Id. Plaintiff alleges as Count II that when CO Paul Golden approached the cell to apprehend Duncan, Golden told Plaintiff to turn around and face the wall, and put his hands in the air. Id. at 8. Plaintiff questions why another inmate in the area was not tasked to do the same, and when

Plaintiff asked if Plaintiff was being put under arrest he was told “no.” Id. at 8–9. As Count III, Plaintiff alleges that on September 20, 2022, CO Schulz brought two new people into cell W204 and they did not know why they were moved from cell W202. Id. at 6. Then one of the inmates pushed the call button and asked to be moved because cell W204 was “too small and hot.” Id. at 9. Lt. Alexander arrived at the cell and told Plaintiff to pack his stuff because he was a “trouble maker.” Id. Plaintiff alleges that Lt. Alexander assumed he was the trouble maker and thought he had pressed the button. She moved Plaintiff to a cell without a toilet, tv, or shower. Id. Plaintiff claims Lt. Alexander had a grin on her face when she was taking away Plaintiff’s privileges. Id. Plaintiff alleges that his privileges were returned and he

did not get written up because they noticed that Plaintiff did nothing wrong. Id. Plaintiff alleges as Count IV that on October 17, 2022, at around 7:20 am, he noticed his breakfast tray had “residue from a previous meal.” Id. at 5. Plaintiff claims that he “threw up” around 1:30 pm. Id. Plaintiff claims that CO Lopez told the nurse, but Plaintiff had to wait until the next day. Id. at 5. Plaintiff also alleges that Lt. Alexander spoke to Plaintiff through the speaker and told him to stop pressing the button to ask the guards about what time and day some situations took place, because they “have more important things to do.” Id. at 10. This was in response to Plaintiff asking what time Golden walked to Plaintiff’s cell and cut his camera off to speak to Plaintiff. Id. Plaintiff claims he was trying to figure out what time he threw up after the dirty tray, and Alexander laughed and told him to take better notes Id. Plaintiff names as defendants: Tammy Alexander, LCJ Lieutenant; Gabrielle Smith, FCJ Corporal; Sheldon Shulz, FCJ Corporal; Madison Garner, FCJ Sergeant; and Paul Golden, FCJ Guard. Plaintiff seeks $100,000 in damages to help him fight his case, $40,000 if the guard takes classes on how to treat inmates, and $25,000 if Lt. Alexander is fired for wrong doings. Id. at 7.

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 ‘entitlement 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 conduct, much of it innocent,” then the plaintiff has not “nudged [his] claims across the line from conceivable to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S. Ct. at 1974). III. DISCUSSION Pretrial detainees, “may not be punished prior to an adjudication of guilt in accordance with due process of law.” Bell v. Wolfish, 441 U.S. 520, 535 (1979) (citations omitted). “A

person lawfully committed to pretrial detention has not been adjudged guilty of any crime . . . [and] has had only a ‘judicial determination of probable cause as a prerequisite to [the] extended restraint of [his] liberty following arrest.” Id. (citations omitted). The government may “detain him to ensure his presence at trial and may subject him to the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to punishment, or otherwise violate the Constitution.” Id. at 536–37. To determine when restrictions pass, as a matter of law, from constitutionally acceptable to constitutionally impermissible, a court must ask two questions. Blackmon v. Sutton, 734 F.3d 1237, 1241 (10th Cir. 2013). “First, we must ask whether an ‘expressed intent to punish on the part of detention facility officials’ exists” and

“[i]f so, liability may attach. If not, plaintiff may still prove unconstitutional punishment by showing the restriction in question bears no reasonable relationship to any legitimate governmental objective.” Id. (citing Bell, 441 U.S. at 538–39). Plaintiff has not alleged an intent to punish on the part of staff at the FCJ, and his allegations suggest, at most, negligence. “Restraints that are reasonably related to the institution’s interest in maintaining jail security do not, without more, constitute unconstitutional punishment, even if they are discomforting and are restrictions that the detainee would not have experienced had he been released while awaiting trial.” Bell, 441 U.S. at 540. “[I]n addition to ensuring the detainees’ presence at trial, the effective management of the detention facility once the individual is confined is a valid objective that may justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such restrictions are intended as punishment.” Id. The Supreme Court has warned that these decisions “are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these

considerations, courts should ordinarily defer to their expert judgment in such matters.” Id. at 540, n.23 (citations omitted). Plaintiff has not stated a claim for relief based on his conditions of confinement. The Tenth Circuit has held that a pretrial detainee’s claims regarding conditions of confinement are governed by the Due Process Clause, and that “the Eighth Amendment standard provides the benchmark for such claims.” Routt v. Howard, 764 F. App’x 762, 770 (10th Cir. 2019) (unpublished) (quoting Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998)); see also Hooks v. Atoki, 983 F.3d 1193, 1203–04 10th Cir. 2020) (declining to extend Kingsley’s exclusively objective standard for pretrial detainees’ excessive force claims to Fourteenth Amendment

deliberate indifference claims). A prison official violates the Eighth Amendment when two requirements are met. Farmer v. Brennan, 511 U.S. 825, 834 (1994). “First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Id. To satisfy the objective component, a prisoner must allege facts showing he or she is “incarcerated under conditions posing a substantial risk of serious harm.” Id.; Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir. 2005). The Eighth Amendment requires prison and jail officials to provide humane conditions of confinement guided by “contemporary standards of decency.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). The Supreme Court has acknowledged that the Constitution “‘does not mandate comfortable prisons,’ and only those deprivations denying ‘the minimal civilized measure of life’s necessities’ are sufficiently grave to form the basis of an Eighth Amendment violation.” Wilson v. Seiter, 501 U.S. 294, 298 (1991) (internal citations omitted). Indeed, prison conditions may be “restrictive and even harsh.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). “Under the Eighth Amendment, (prison) officials must provide humane conditions of confinement by ensuring inmates receive the basic necessities of adequate food, clothing, shelter, and medical

care and by taking reasonable measures to guarantee the inmates’ safety.” McBride v. Deer, 240 F.3d 1287, 1291 (10th Cir. 2001) (citation omitted). The second requirement for an Eighth Amendment violation “follows from the principle that ‘only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.’” Farmer, 511 U.S. at 834. Prison officials must have a “sufficiently culpable state of mind,” and in prison-conditions cases that state of mind is “deliberate indifference” to inmate health or safety. Id. “[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837. “The Eighth Amendment does not outlaw cruel and unusual ‘conditions’; it outlaws cruel and

unusual ‘punishments.’” Id. It is not enough to establish that the official should have known of the risk of harm. Id. Because the sufficiency of a conditions-of-confinement claim depends upon “the particular facts of each situation; the ‘circumstances, nature, and duration’ of the challenged conditions must be carefully considered.” Despain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001) (quoting Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000)). “While no single factor controls . . . the length of exposure to the conditions is often of prime importance.” Id. As the severity of the conditions to which an inmate is exposed increases, the length of exposure required to make out a constitutional violation decreases. Accordingly, “minor deprivations suffered for short periods would not rise to an Eighth Amendment violation, while ‘substantial deprivations. . .’ may meet the standard despite a shorter duration.” Id. (citations omitted). Plaintiffs’ allegations fail to allege a “sufficiently serious” deprivation or facts showing he is “incarcerated under conditions posing a substantial risk of serious harm.” Plaintiff has also failed to allege “deliberate indifference” by any defendant.

Plaintiff has failed to allege a constitutional violation, and his claims suggest, at most, mere negligence. Claims under § 1983 may not be predicated on mere negligence. See Daniels v. Williams, 474 U.S. 327, 330 (1986); Jones v. Salt Lake Cty., 503 F.3d 1147, 1162 (10th Cir. 2007) (citing Jojola v. Chavez, 55 F.3d 488, 490 (10th Cir. 1995) (“Liability under § 1983 must be predicated upon a deliberate deprivation of constitutional rights by the defendant, and not on negligence.”) (quotations omitted); Green v. Atkinson, 623 F.3d 278, 281 (5th Cir. 2010) (“A single incident of food poisoning or finding a foreign object in food does not constitute a violation of the constitutional rights of the prisoner affected.”); Wishon v. Gammon, 978 F.2d 446, 449 (8th Cir. 1992) (ruling that presence of foreign objects in food was insufficient to

prove deliberate indifference); Hamm v. DeKalb Cty., 774 F.2d 1567, 1575 (11th Cir. 1985) (“The fact that [prison] food occasionally contains foreign objects or sometimes is served cold, while unpleasant, does not amount to a constitutional deprivation.”); LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993) (same); Ockert v. Beyer, No. 10–3058–SAC, 2010 WL 5067062 at *2 (D. Kan. Dec. 7, 2010) (finding that a single incident where hair was found in food failed to give rise to a constitutional violation). Plaintiff’s request for compensatory damages is barred by 42 U.S.C. § 1997e(e), because Plaintiff has failed to allege a physical injury. Section 1997e(e) provides in pertinent part that “[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e). IV. Response Required Plaintiff is required to show good cause why his Complaint should not be dismissed for the reasons stated herein. Failure to respond by the deadline may result in dismissal of this

matter without further notice. IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is granted until December 22, 2022, in which to show good cause, in writing to the undersigned, why Plaintiff’s Complaint should not be dismissed for the reasons stated herein. IT IS SO ORDERED. Dated November 22, 2022, in Kansas City, Kansas. S/ John W. Lungstrum JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE