Opinion
Civil Action No. 99-3235-KHV
March 13, 2001
MEMORANDUM AND ORDER
Michael Davidson, an inmate in the Kansas State Penitentiary at Lansing, Kansas, brings suit against the State of Kansas, David R. McKune and Charles Simmons. Invoking 42 U.S.C. § 1983, plaintiff claims that defendants violated his rights under the Fourth, Fifth, Eighth and Fourteenth Amendments and Kansas state law. This matter comes before the Court on Defendants' Motion To Dismiss (Doc. #34) filed October 13, 2000 and Plaintiff's Motion To Join As Party Defendant (Doc. #26) filed October 2, 2000. For the reasons stated below, the Court sustains defendants' motion to dismiss and overrules plaintiff's motion to join.
Plaintiff seeks to add Susan Gibreal as a party. Defendants have not responded to the motion to join, but Gibreal is included in defendants' motion to dismiss. Pursuant to D. Kan. Rule 7.4, "[i]f a respondent fails to file a response within the time required by Rule 7.1(b), the motion will be considered and decided as an uncontested motion, and ordinarily will be granted without further notice." Plaintiff, however, failed to follow D. Kan. Rule 15.1 in filing his motion to join. Plaintiff's motion is in essence one to amend his complaint to add another defendant. Pursuant to D. Kan. Rule 15.1, plaintiff must include a copy of the proposed amended pleading with his motion so that the Court may evaluate its sufficiency and file it if the motion is sustained. The motion to join is therefore overruled. Because plaintiff has not filed a complaint against Gibreal, the Court need not consider her motion to dismiss at this time.
Factual Background
Plaintiff's complaint alleges the following facts, which the Court accepts as true for the purposes of this motion:
On October 30, 1996, to be near his ailing mother, plaintiff requested a transfer from the prison facility in Eldorado, Kansas to the Kansas State Penitentiary in Lansing, Kansas. At the time, plaintiff was incarcerated for the murder of Al Harris. The decedent's brother, Earl Harris, was also in the Kansas state prison system. Previously, Earl Harris had made it known that if "given the opportunity, he would commit grave bodily harm upon [plaintiff] or kill him." Complaint (Doc. #1) filed July 12, 1999 at 2. Plaintiff inquired about Harris' location at the time he requested the transfer, and defendants confirmed that Harris was not an inmate at Lansing. At some point, plaintiff's mother found out either that Harris was in Lansing or that he was due to enter the prison population. She attempted to notify prison authorities of the potential danger to plaintiff. Eventually, plaintiff and Harris were both housed at Lansing. On November 7, 1997, Harris attacked plaintiff with a lead pipe filled with concrete. This attack left plaintiff with "severe and painful disfiguring lacerations which have lead to a partial loss of sight, headaches, [and] neurological dysfunction of a continued and unabated . . . severe and lasting nature." Complaint (Doc. #1) at 3.
In his complaint, plaintiff does not state who he sent this inquiry to or who provided the information that Harris was not within the prison population at Lansing.
Again, plaintiff does not provide any information about the substance of his mother's inquiry, the date on which she made it, to whom it was directed or if she was successful in contacting any of the prison officials. Plaintiff merely alleges that his mother "attempted" to notify prison authorities of the potential risk.
Plaintiff now brings suit to recover for the attack by Harris. He charges that the State of Kansas, David R. McKune, Warden of the Lansing Correctional Facility, and Charles Simmons, Secretary of the Kansas Department of Corrections, violated his rights under the Fourth, Fifth, Eighth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983. Complaint (Doc. #1) at 3. Defendants ask the Court to dismiss plaintiff's suit for failure to state a claim because (1) the state of Kansas is not liable to suit under 42 U.S.C. § 1983; (2) plaintiff fails to allege deliberate indifference or personal participation by defendants; (3) plaintiff did not exhaust administrative remedies; and (4) defendants are entitled to qualified immunity. Memorandum In Support Of Defendants' Motion To Dismiss (Doc. #35) filed October 13, 2000. Plaintiff responds that defendants' motion is untimely since discovery will prove that defendants' individual actions rose to the level of deliberate indifference and that defendants sufficiently participated in his injury to state a claim under 42 U.S.C. § 1983. He also contends that his complaint is not subject to exhaustion requirements and that defendants are not entitled to immunity for their actions because his constitutional right to personal safety was firmly established and defendants knowingly violated that right. Plaintiff's Response To Defendants' Motion To Dismiss (Doc. #46) filed November 30, 2000. Defendants reply by requesting sanctions because plaintiff's claim is frivolous and not preceded by a reasonable inquiry. Reply To Plaintiff's Brief In Opposition To Defendants' Motion To Dismiss (Doc. #49) filed December 12, 2000.
Defendants do not address plaintiff's concerns under the Fourth, Fifth or Fourteenth Amendments, or his state law claims. Therefore the Court need not address those claims. Nevertheless, the Court notes that plaintiff has not articulated a specific cause of action or theory of relief under the Fourth, Fifth and Fourteenth Amendments or state law. As directed below, the Court gives plaintiff leave to amend his complaint to specifically state his claims and add Susan Gibreal as a party until March 26, 2001. Plaintiff is therefore ordered to show cause in writing, on or before March 26, 2001, why the purported claims should not be dismissed.
Analysis
I. Timeliness of Defendants' Motion
Plaintiff initially argues that defendants may not bring a motion to dismiss since they have already filed a responsive pleading. The general rule is that a motion to dismiss filed after an answer is considered a motion for judgment on the pleadings under Rule 12(c) and not a motion to dismiss under Rule 12(b). See Mansfield v. UMB Bank Kan., No. 95-2554, 1996 WL 648686, at *1 n. 1 (D.Kan. Oct. 11, 1996); Schy v. Susquehanna Corp., 419 F.2d 1112, 1115-16 (7th Cir. 1970). Rule 12(b)(6) motions are allowed after responsive pleadings, however, "if the defense has been previously included in the answer." Rodgers v. D.F. Freeman Contractors, Inc., No. 89-2248, 1989 WL 134280, at *1 (D.Kan. Oct. 31, 1989). In this matter, defendants clearly preserved the claims in their motion to dismiss by presenting them as affirmative defenses in their answer. Answer (Doc. #3) filed September 13, 1999 at 4. Defendants' motion to dismiss under Rule 12(b)(6) is therefore timely.
Defendants assert that they have preserved their Rule 12(b)(6) motion because the Court's scheduling order directed the parties to file motions to dismiss for failure to state a claim on or before October 18, 2000. See Scheduling Order (Doc. #19) filed August 18, 2000. It is defendants' answer, however, that allows the motion to dismiss to be filed at this date.
Plaintiff also addresses the possibility of treating defendants' motion as one for summary judgment. Plaintiff's Response To Defendants' Motion To Dismiss (Doc. #46) at 3. Neither party has submitted any matters outside the pleadings. Therefore the Court will not convert defendants' motion to dismiss to one for summary judgment.
II. Failure to State a Claim
A. Legal Standard
A Rule 12(b)(6) motion should not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The Court accepts all well-pleaded factual allegations in the complaint as true and draws all reasonable inferences from those facts in favor of plaintiff. See Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir. 1987). The issue in reviewing the sufficiency of plaintiff's complaint is not whether plaintiff will prevail, but whether plaintiff is entitled to offer evidence to support his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Although plaintiff need not precisely state each element of his claims, he must plead minimal factual allegations on those material elements that must be proved. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
B. Analysis
Plaintiff argues that he did not give up "all semblance of personal safety" when he entered prison and that defendants' actions rose to the level of deliberate indifference. Defendants first argue that states are not amenable to suit under Section 1983 because they cannot be "a person acting under color of state law." Memorandum In Support Of Defendants' Motion To Dismiss (Doc. #35) (quotations omitted). The proposition is well accepted that "[a] State is not a person within the meaning of § 1983." Will v. Michigan Dep't of State Police, 491 U.S. 58, 64 (1989). Thus, although "Section 1983 provides a federal forum to remedy many deprivations of civil liberties . . . it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties." Id. at 66; see also Farmer v. State of Okla., 996 F.2d 310, 1993 WL 181435 at *1 (10th Cir. May 27, 1993). Therefore the Court finds that the Section 1983 claim against the State of Kansas must be dismissed.
Defendants next argue that plaintiff's claims should be dismissed because plaintiff failed to allege deliberate indifference or that defendants personally participated in plaintiff's beating. The Eighth Amendment, however, covers more than individual actions; it also encompasses a failure to act. In order to prevail on a claim of failure to protect under the Eighth Amendment, "an inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm" and "that the prison official has a sufficiently culpable state of mind." Riddle v. Mondragon, 83 F.3d 1197, 1204 (10th Cir. 1996) (claim dismissed when inmates only had fear of being attacked if sex offender status discovered) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citations omitted)). In other words, plaintiff must allege that the responsible officials acted with deliberate indifference. See Shannon v. Graves, No. 98-3395, 2000 WL 206315, at *6-7 (D.Kan. Jan. 5, 2000).
The inquiry into whether the incarceration poses a substantial risk of serious harm is an objective one, asking if the deprivation denied plaintiff "the minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. 337, 347 (1981). "Prison conditions violate the Eighth Amendment if they result in the `unnecessary and wanton infliction of pain,' are `grossly disproportionate to the severity of the crime warranting imprisonment,' or result in an `unquestioned and serious deprivation of basic human needs.'" Ruark v. Solano, 928 F.2d 947, 949 (10th Cir. 1991) (quoting Rhodes, 452 U.S. at 346-47), implied overruling on other grounds recognized by Tucker v. Graves, 107 F.3d 881, 1997 WL 100884 (10th Cir. Mar. 6, 1997).
When an inmate suffers severe injuries due to an attack by another inmate, the first prong of the Eighth Amendment test is typically met. See Iwanski v. Okla. Dep't of Corr., 201 F.3d 448, 1999 WL 1188836 (10th Cir. Dec. 14, 1999) (inmate beaten to death); Lopez v. LeMaster, 172 F.3d 756 (10th Cir. 1999) (inmate severely beaten); Sims v. Schaad, 185 F.3d 875, 1999 WL 387158 (10th Cir. June 14, 1999); Northington v. Marin, 102 F.3d 1564 (10th Cir. 1996); Hawkinson v. Romer, 57 F.3d 1080, 1995 WL 353187 (10th Cir. June 16, 1995); Berry v. City of Muskogee, 900 F.2d 1489 (10th Cir. 1990). After being beaten by Harris, plaintiff suffered a "partial loss of eyesight, headaches, and neurological dysfunction of a severe and lasting nature." Complaint (Doc. #1) at 3. The alleged attack on plaintiff fulfills the first prong of the Eighth Amendment test.
Plaintiff must also meet the subjective component of the failure to protect test by alleging that the responsible official had a sufficiently culpable state of mind. See Wilson v. Seiter, 501 U.S. 294, 299-304 (1991); Clemmons v. Bohannon, 956 F.2d 1523, 1525-26 (10th Cir. 1992). The requirement of deliberate indifference follows from the principle that "only the unnecessary and wanton infliction of pain implicates the Eighth Amendment." Riddle, 83 F.3d at 1205 (quoting Farmer, 511 U.S. at 834). A defendant is deliberately indifferent if he "knows of and disregards an excessive risk to inmate health and safety." Farmer, 511 U.S. at 837. The deliberate indifference standard is not satisfied by either negligence or constructive notice. See id. at 835, 841.
Defendants argue that plaintiff has failed to allege personal participation to a degree which would subject them to liability under Section 1983. In discussing plaintiff's claims, plaintiff's complaint only uses the term "defendants" and does not attribute particular actions to individual defendants.
At the time of the attack, McKune served as Warden of the Lansing Correctional Facility. Plaintiff alleges that McKune was responsible "for the designation and segregation of prisoners who with a reasonable degree of probability, would cause severe harm and physical injury to plaintiff." Complaint (Doc. #1) at 1. Plaintiff does not allege that McKune knew of the threat which Harris posed, however, and that he consciously disregarded it. The gist of plaintiff's complaint is that because of his job responsibilities, McKune should have known that plaintiff would be exposed to a high degree of harm at Lansing. Plaintiff's Response To Defendant's Motion To Dismiss (Doc. #46) filed November 30, 2000 at 5. Plaintiff also notes that McKune was responsible for training and supervision of corrections personnel. Complaint (Doc. #1) at 1. While plaintiff does not explicitly connect McKune's supervisory duties with his assault, the Court notes that "[a] supervisor . . . may be held liable where there is essentially a complete failure to train, or training that is so reckless or grossly negligent that future misconduct is almost inevitable." Meade v. Grubbs, 841 F.2d 1512, 1528 (10th Cir. 1988) (motion to dismiss against sheriff not granted when deputies assaulted inmate) (citing Hays v. Jefferson County, 668 F.2d 869, 873-74 (6th Cir. 1982)).
At the time of the attack, Simmons served as the Secretary of the Department of Corrections of the State of Kansas and was responsible "for the retaining and dispensing of information concerning physical danger to inmates under his care and control." Complaint (Doc. #1) at 1-2. As with McKune, plaintiff fails to explicitly state a connection between Simmon's job description and his assault. The Court could assume that his contentions against Simmons also center around the theory that he did not act properly, based on the information available to him, or did not gather sufficient information to ensure plaintiff's safety.
An official will violate the deliberate indifference standard if he or she knows that the probable result of his or her actions will be to place an inmate in serious jeopardy of assault. See Northington, 102 F.3d at 1567 (spreading rumor that inmate was a snitch constituted Section 1983 violation). In his claims for relief, plaintiff does not individually refer to either defendant. The basis of plaintiff's contention is that if either defendant had adequately fulfilled his duties, the attack would not have occurred. At this stage in the proceedings, plaintiff must merely state minimal factual allegations indicating the reasonable possibility of such a relationship. See Jenkins v. Denver County Jail, 203 F.3d 825, 2000 WL 84893 at *2 (10th Cir. Jan. 27, 2000) (claim dismissed when only possible rationale for official culpability for inmate assault was failure to fix security camera over basketball court).
Plaintiff's allegations are similar to those made by the inmate in Schwartz v. Zavaras, 96 F.3d 1453, 1996 WL 494413 (10th Cir. Aug. 27, 1996). In that case, the inmate sued the director of the Colorado Department of Corrections and the superintendent of the facility in which he was housed. Plaintiff claimed that defendants did not segregate him from other prisoners who might want to harm him. Plaintiff had discussed his need for protective custody with one of the defendants. Moreover, because plaintiff was a former prosecutor for several Colorado counties, the need for protective custody was obvious and reasonable. Id. at *2. The Tenth Circuit nevertheless upheld summary judgment for defendants because plaintiff "failed to show that either defendant was aware of or involved in the decision to place him in the general population." Id. at *1.
To successfully maintain such a suit against prison officials, the plaintiff must allege specific personal participation on the part of each defendant. See, e.g., Winston v. Nye, No. 96-3158, 1997 WL 756627, at *2 (D.Kan. Nov. 19, 1997) (claim against sheriff dismissed when plaintiff did not allege evidence of personal participation or facts suggesting negligent supervision); accord Sims v. Schaad, 185 F.3d 875, 1999 WL 387158 (10th Cir. June 14, 1999) (summary judgment for all defendants in inmate assault case except one deputy from whom inmate had requested assistance); Lopez, 172 F.3d at 762 (claim against sheriff survived summary judgment when sheriff admitted that conditions at jail created risk of harm to inmates and other inmates had been assaulted). In this case, plaintiff has not alleged that either defendant knew of or participated in the decision that ultimately placed both Harris and plaintiff in the same facility. In other words, plaintiff has not alleged the individualized participation or knowledge which the law requires. Plaintiff also has not stated a theory of negligent supervision under which defendants would be liable. Plaintiff therefore has failed to state a claim upon which relief may be granted against these defendants.
III. Rule 11 Sanctions
Defendants argue that the Court should sanction plaintiff because his attempt to recover monetary damages is "frivolous and a waste of judicial resources." Reply To Plaintiff's Brief In Opposition To Defendants' Motion To Dismiss (Doc. #49) at 5. Under Fed.R.Civ.P. 11(c)(1)(A), a motion for sanctions "shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b)." According to defendants, sanctions are justified because plaintiff did not more specifically allege that McKune and Simmons personally participated in the violation of his constitutional rights. This motion for sanctions is contained in defendants' reply brief and is not made separately from other motions. Also under Fed.R.Civ.P. 11(c)(1)(A), a motion for sanctions shall be served as provided in Rule 5, but shall not be filed with or presented to the Court unless, within 21 days after service of the motion (or such other period as the Court may prescribe), the challenged paper, claim, defense, contention, allegation or denial is not withdrawn or appropriately corrected. Defendants have not shown that this condition has been met and the Court therefore declines to entertain the request for sanctions. See Hall v. Martin, No. 99-1092, 1999 WL 760216 at *3 (D.Kan. Aug. 20, 1999). IT IS THEREFORE ORDERED that Defendants' Motion To Dismiss (Doc. #34) filed October 13, 2000 be and hereby is SUSTAINED as to plaintiff's claim under the Eighth Amendment against McKune and Simmons.
IT IS FURTHER ORDERED that Plaintiff's Motion To Join As Party Defendant (Doc. #26) filed October 2, 2000 be and hereby is OVERRULED. On or before March 26, 2001, plaintiff may file a motion to add Susan Gibreal as a defendant that comports with D. Kan. Rule 15.1.
IT IS FURTHER ORDERED that plaintiff, on or before March 26, 2001, show cause in writing why his claims of constitutional violations of the Fourth, Fifth and Fourteenth Amendments, as well as Kansas state law, should not be dismissed.