Page v. Schnurr

DEVON M. PAGE, v. DAN SCHNURR, et al., Plaintiff,

No. 20-3289-SAC

United States District Court, D. Kansas

August 17, 2021

MEMORANDUM AND ORDER TO SHOW CAUSE

SAM A CROW U.S. Senior District Judge

Defendants. Plaintiff Devon M. Page, a state prisoner at the Hutchinson Correctional Facility (HCF) in Hutchinson, Kansas, brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff proceeds in forma pauperis. For the reasons discussed below, Plaintiff is ordered to show cause why his Complaint should not be dismissed.

I. Nature of the Matter before the Court

Plaintiff's Complaint centers around an incident which occurred in September of 2020. Plaintiff states he was cleaning his cell when Corrections Officer Swann gave him a sack lunch. Plaintiff told Swann that he had given Plaintiff the wrong lunch. Swann responded by saying it was not his problem. Plaintiff then told Swann he should not come to work if he was going to be an a**hole, and Swann said, “You guys are always trying to get over on someone. F***ing n****rs.” Plaintiff lost his temper, grabbing a cup of disinfectant cleaning liquid and throwing it at Swann. The cup hit Swann. Swann then called a code, and Plaintiff was taken to an MRA (“More Restricted Area”) cell without any clothing, mattress, bedding, or toilet paper. After several hours, another officer brought Plaintiff his clothing. The clothes were wet and smelled of urine. Plaintiff then used a sheet to attempt to hang himself. He was put on Crisis Level 2 for two weeks then returned to an MRA cell for some period of time.

The Complaint include three counts. Count One alleges that Defendant Swann demonstrated racial discrimination against Plaintiff causing him mental anguish and pain and suffering. In addition to the exchange recounted above, Plaintiff states Swann made statements such as “F**k the Black Lives Matter movement” and “They deserve to die” on a regular basis.

Count Two asserts that Plaintiff was denied protection from cruel and unusual punishment and his due process rights were violated by being held in an MRA “slam cell.” Plaintiff alleges the plumbing in the MRA cells is disconnected, preventing the toilet from being flushed from inside the cell. He must rely on corrections officers to flush the toilet, which they do on an irregular basis. This forces Plaintiff to eat, sleep, and live with the sight and smell of his own excrement. Plaintiff further claims the MRA cells are too small, measuring only 40 square feet; and there is an extra brick enclosure and steel door, resulting in a lack of natural light and sound. Plaintiff states he is required to spend all but five hours a week in the MRA cell.

In addition, Plaintiff alleges his MRA status has stopped him from receiving adequate mental health care. He states he has been diagnosed as having a personality disorder, attention deficit hyperactivity disorder, bipolar depression, and anxiety. He receives his medication but has been denied mental health books or participation in substance abuse group therapy and counseling. Plaintiff asserts he is allowed medication and perhaps a monthly suicide check.

Count Three alleges Unit Team Sergeant Hertel denied Plaintiff access to the courts by interfering with his attempts to exhaust his administrative remedies. Plaintiff claims Hertel refused to address his staff misconduct claim involving Swann, rejected his grievances about the toilet and door in the MRA cell without consideration, failed to put a log number on his injury claim and failed to give the claim to the warden.

Plaintiff names as defendants Dan Schnurr, warden of HCF; Correctional Officer Swann; and Unit Team Sergeant Hertel. He seeks an injunction ordering the firing of Defendant Swann and the retraining of Defendant Hertel, as well as compensatory and punitive damages for his psychological pain and suffering. Also, he requests this suit be declared a class action.

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 employee of such entity to determine whether summary dismissal is appropriate. 28 U.S.C. § 1915A(a). Additionally, with any litigant, such as Plaintiff, who is proceeding in forma pauperis, the Court has a duty to screen the complaint to determine its sufficiency. See 28 U.S.C. § 1915(e)(2). Upon completion of this screening, the Court must dismiss any claim that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b), 1915(e)(2)(B).

“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 (10^th 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

Plaintiff's Complaint is subject to dismissal for the following reasons.

A. Failure to State a Claim Count One - Racist Remarks

Plaintiff alleges Defendant Swann demonstrated racial discrimination through the use of racial slurs. As explained above, a plaintiff bringing a claim under § 1983 must “allege the violation of a right secured by the Constitution and laws of the United States.” West, 487 U.S. at 48. While Plaintiff does not mention a constitutional right, the Equal Protection Clause of the Fourteenth Amendment is typically invoked where discrimination is alleged. “The Equal Protection Clause ‘keeps governmental decision makers from treating differently persons who are in all relevant respects alike.'” Soskin v. Reinertson, 353 F.3d 1242, 1247 (10th Cir. 2004) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)). “[T]o state a claim under § 1983 for violation of the Equal Protection Clause, a plaintiff must show that he is a member of a class of individuals that is being treated differently from similarly situated individuals who are not in that class.” Hunnicutt v. DeSantiago, 429 F.Supp.3d 905, 916 (D.N.M. 2019) (citing see SECSYS, LLC v. Vigil, 666 F.3d 678, 688 (10th Cir. 2012)).

Plaintiff as an African-American, is a member of a protected class, and the mistreatment he asserts is being subjected to racist remarks. However, the Tenth Circuit has made clear that “verbal harassment or abuse ... is not sufficient to state a constitutional deprivation under 42 U.S.C. § 1983.” Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979) (citations omitted). While Swann's racist comments to Plaintiff are “deplorable and unprofessional, ” they do not constitute an Equal Protection violation. See Williams v. Levansailor, 153 F.3d 730 (Table) (10th Cir. 1998) (collecting cases). Because Plaintiff includes no other allegation of racial discrimination beyond...