IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
NICHOLAS COX, Plaintiff, v. CASE NO. 25-3082-JWL JENNELL BUCHANAN, et al., Defendants.
MEMORANDUM AND ORDER This matter is a civil rights action filed under 42 U.S.C. § 1983. Plaintiff proceeds pro se and is incarcerated at the El Dorado Correctional Facility in El Dorado, Kansas (“EDCF”). Plaintiff alleges that the defendants were deliberately indifferent to his safety by housing him with a known Sureno gang member. The Court entered a memorandum and order to show cause (““MOSC”) (Doc. 2) directing Plaintiff to show cause by June 30, 2025, why this matter should not be dismissed due to the deficiencies set forth. The MOSC stated that if Plaintiff failed within the time allotted to file a response, this action could be dismissed without further notice. Plaintiff has not filed a response as of the date of this Order. The Court found in the MOSC that the Complaint had a number of problems. First, Plaintiff failed to allege adequate personal participation by Defendant Williams. An essential element of a civil rights claim against an individual is that person’s direct personal participation in the acts or inactions upon which the complaint is based. Kentucky v. Graham, 473 U.S. 159, 165— 66 (1985); Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011) (“But § 1983 imposes liability
for a defendant’s own actions—personal participation in the specific constitutional violation complained of is essential.”) (citing Foote v. Spiegel, 118 F.3d 1416, 1423–24 (10th Cir. 1997) (“Individual liability under § 1983 must be based on personal involvement in the alleged constitutional violation.”) (citation omitted)); Trujillo v. Williams, 465 F.3d 1210, 1228 (10th Cir. 2006) (“In order for liability to arise under § 1983, a defendant’s direct personal responsibility for
the claimed deprivation . . . must be established.”) (emphasis added) (citation omitted)). Plaintiff claimed that Warden Williams “sets the policy for EDCF staff” and “should have had a policy that the unit team managers should check with security before pairing up people.” (Doc. 1, at 4.) Conclusory allegations of involvement are not sufficient. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.”). As a result, a plaintiff is required to name each defendant not only in the caption of the complaint, but again in the body of the complaint and to include in the body a description of the acts taken by each defendant that violated plaintiff’s federal constitutional
rights. Mere supervisory status is insufficient to create personal liability. Duffield v. Jackson, 545 F.3d 1234, 1239 (10th Cir. 2008) (supervisor status is not sufficient to create § 1983 liability). An official’s liability may not be predicated solely upon a theory of respondeat superior. Rizzo v. Goode, 423 U.S. 362, 371 (1976); Gagan v. Norton, 35 F.3d 1473, 1476 FN4 (10th Cir. 1994), cert. denied, 513 U.S. 1183 (1995). A plaintiff alleging supervisory liability must show “(1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation.” Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010), cert. denied, 563 U.S. 960 (2011). “[T]he factors necessary to establish a [supervisor’s] § 1983 violation depend upon the constitutional provision at issue, including the state of mind required to establish a violation of that provision.” Id. at 1204 (citing Iqbal, 129 S. Ct. at 1949). The MOSC found that Plaintiff’s conclusory allegations failed to establish sufficient
personal participation by Defendant Williams, making his claims against Williams subject to dismissal. The MOSC further found that Plaintiff’s allegations did not state a claim for failure to protect. “[P]rison officials have a duty to ‘provide humane conditions of confinement,’ including ‘tak[ing] reasonable measures to guarantee the safety of . . . inmates.’” Hooks v. Atoki, 983 F.3d 1193, 1205 (10th Cir. 2020) (quoting Requena v. Roberts, 893 F.3d 1195, 1214 (10th Cir. 2018) (alteration and omission in original) (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)). “This duty includes ‘a duty to protect prisoners from violence at the hands of other prisoners.’” Id. (quoting Farmer, 511 U.S. at 833).
A claim of deliberate indifference requires a plaintiff to allege “that an official acted (or failed to act) in an objectively unreasonable manner and with subjective awareness of the risk.” Strain v. Regalado, 977 F.3d 984, 987 (10th Cir. 2020) (noting that “the word deliberate makes a subjective component inherent in the claim”). “[A]n official’s intent matters not only as to what the official did (or failed to do), but also why the official did it.” Hooks, 983 F.3d at 1204 (citing Strain, 977 F.3d at 992). Plaintiff must establish that the “official knows of and disregards an excessive risk to inmate health or safety; the 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.” Strain, 977 F.3d at 990 (citations and alteration omitted). Plaintiff stated that he suspected he was poisoned by his cellmate but referenced no proof. The MOSC determined that Plaintiff had the problem of proving that an attack even occurred, let alone that Buchanan acted with deliberate indifference. Based on the Complaint, the Court found that it was not clear why Plaintiff may have been at risk from Sureno members. Apparently, Plaintiff had suffered no gang-related attacks for three years. He did not allege that he was recently
the subject of specific threats, whether from his cellmate or other Sureno gang members. He did not claim that the cellmate had a history of attacking or poisoning other inmates. He had lived with the Sureno cellmate for two weeks without apparent problem. There was no indication in the Complaint that Defendant Buchanan knew of an excessive, substantial risk to Plaintiff’s safety sufficient to demonstrate that she acted with deliberate indifference, making Plaintiff’s failure to protect claim subject to dismissal. Last, the MOSC found that Plaintiff’s request for restoration of good time credit had to be raised in a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Abdulhaseeb v. Ward, 173 F. App’x 658, 659 n.1 (10th Cir. 2006) (citing McIntosh v. United States Parole
Comm’n, 115 F.3d 809, 811 (10th Cir.
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
NICHOLAS COX, Plaintiff, v. CASE NO. 25-3082-JWL JENNELL BUCHANAN, et al., Defendants.
MEMORANDUM AND ORDER This matter is a civil rights action filed under 42 U.S.C. § 1983. Plaintiff proceeds pro se and is incarcerated at the El Dorado Correctional Facility in El Dorado, Kansas (“EDCF”). Plaintiff alleges that the defendants were deliberately indifferent to his safety by housing him with a known Sureno gang member. The Court entered a memorandum and order to show cause (““MOSC”) (Doc. 2) directing Plaintiff to show cause by June 30, 2025, why this matter should not be dismissed due to the deficiencies set forth. The MOSC stated that if Plaintiff failed within the time allotted to file a response, this action could be dismissed without further notice. Plaintiff has not filed a response as of the date of this Order. The Court found in the MOSC that the Complaint had a number of problems. First, Plaintiff failed to allege adequate personal participation by Defendant Williams. An essential element of a civil rights claim against an individual is that person’s direct personal participation in the acts or inactions upon which the complaint is based. Kentucky v. Graham, 473 U.S. 159, 165— 66 (1985); Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011) (“But § 1983 imposes liability
for a defendant’s own actions—personal participation in the specific constitutional violation complained of is essential.”) (citing Foote v. Spiegel, 118 F.3d 1416, 1423–24 (10th Cir. 1997) (“Individual liability under § 1983 must be based on personal involvement in the alleged constitutional violation.”) (citation omitted)); Trujillo v. Williams, 465 F.3d 1210, 1228 (10th Cir. 2006) (“In order for liability to arise under § 1983, a defendant’s direct personal responsibility for
the claimed deprivation . . . must be established.”) (emphasis added) (citation omitted)). Plaintiff claimed that Warden Williams “sets the policy for EDCF staff” and “should have had a policy that the unit team managers should check with security before pairing up people.” (Doc. 1, at 4.) Conclusory allegations of involvement are not sufficient. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.”). As a result, a plaintiff is required to name each defendant not only in the caption of the complaint, but again in the body of the complaint and to include in the body a description of the acts taken by each defendant that violated plaintiff’s federal constitutional
rights. Mere supervisory status is insufficient to create personal liability. Duffield v. Jackson, 545 F.3d 1234, 1239 (10th Cir. 2008) (supervisor status is not sufficient to create § 1983 liability). An official’s liability may not be predicated solely upon a theory of respondeat superior. Rizzo v. Goode, 423 U.S. 362, 371 (1976); Gagan v. Norton, 35 F.3d 1473, 1476 FN4 (10th Cir. 1994), cert. denied, 513 U.S. 1183 (1995). A plaintiff alleging supervisory liability must show “(1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation.” Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010), cert. denied, 563 U.S. 960 (2011). “[T]he factors necessary to establish a [supervisor’s] § 1983 violation depend upon the constitutional provision at issue, including the state of mind required to establish a violation of that provision.” Id. at 1204 (citing Iqbal, 129 S. Ct. at 1949). The MOSC found that Plaintiff’s conclusory allegations failed to establish sufficient
personal participation by Defendant Williams, making his claims against Williams subject to dismissal. The MOSC further found that Plaintiff’s allegations did not state a claim for failure to protect. “[P]rison officials have a duty to ‘provide humane conditions of confinement,’ including ‘tak[ing] reasonable measures to guarantee the safety of . . . inmates.’” Hooks v. Atoki, 983 F.3d 1193, 1205 (10th Cir. 2020) (quoting Requena v. Roberts, 893 F.3d 1195, 1214 (10th Cir. 2018) (alteration and omission in original) (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)). “This duty includes ‘a duty to protect prisoners from violence at the hands of other prisoners.’” Id. (quoting Farmer, 511 U.S. at 833).
A claim of deliberate indifference requires a plaintiff to allege “that an official acted (or failed to act) in an objectively unreasonable manner and with subjective awareness of the risk.” Strain v. Regalado, 977 F.3d 984, 987 (10th Cir. 2020) (noting that “the word deliberate makes a subjective component inherent in the claim”). “[A]n official’s intent matters not only as to what the official did (or failed to do), but also why the official did it.” Hooks, 983 F.3d at 1204 (citing Strain, 977 F.3d at 992). Plaintiff must establish that the “official knows of and disregards an excessive risk to inmate health or safety; the 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.” Strain, 977 F.3d at 990 (citations and alteration omitted). Plaintiff stated that he suspected he was poisoned by his cellmate but referenced no proof. The MOSC determined that Plaintiff had the problem of proving that an attack even occurred, let alone that Buchanan acted with deliberate indifference. Based on the Complaint, the Court found that it was not clear why Plaintiff may have been at risk from Sureno members. Apparently, Plaintiff had suffered no gang-related attacks for three years. He did not allege that he was recently
the subject of specific threats, whether from his cellmate or other Sureno gang members. He did not claim that the cellmate had a history of attacking or poisoning other inmates. He had lived with the Sureno cellmate for two weeks without apparent problem. There was no indication in the Complaint that Defendant Buchanan knew of an excessive, substantial risk to Plaintiff’s safety sufficient to demonstrate that she acted with deliberate indifference, making Plaintiff’s failure to protect claim subject to dismissal. Last, the MOSC found that Plaintiff’s request for restoration of good time credit had to be raised in a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Abdulhaseeb v. Ward, 173 F. App’x 658, 659 n.1 (10th Cir. 2006) (citing McIntosh v. United States Parole
Comm’n, 115 F.3d 809, 811 (10th Cir. 1997) (petitions under § 2241 are used to attack the execution of a sentence, including the deprivation of good-time credits and other prison disciplinary matters); Brown v. Smith, 828 F.2d 1493, 1495 (10th Cir. 1987) (“If [the petitioner] can show that his due process rights were violated in the subject disciplinary proceedings, then § 2241 would be the appropriate remedy to use to restore his good time credits.”); see also Gamble v. Calbone, 375 F.3d 1021 (10th Cir. 2004) (inmates were entitled to habeas relief on grounds that revocation of their earned credits resulting from unsupported disciplinary convictions violated due process), superseded by statute on other grounds as stated in Magar v. Parker, 490 F.3d 816, 818– 19 (10th Cir. 2007). The Court found that Plaintiff could not challenge prison disciplinary actions and the loss of good time in this civil rights action but could only do so by filing a petition for writ of habeas corpus. The MOSC provided that Plaintiff had until June 30, 2025, to show good cause why his Complaint should not be dismissed, and “[f]ailure to respond by the deadline may result in dismissal of this action without further notice.” (Doc. 2, at 8.) Plaintiff has failed to respond to
the MOSC and has failed to show good cause why his Complaint should not be dismissed for failure to state a claim. IT IS THEREFORE ORDERED that this action is dismissed for failure to state a claim upon which relief may be granted. IT IS SO ORDERED. Dated July 10, 2025, at Kansas City, Kansas.
S/ John W. Lungstrum JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE