Summary
In Wolters, the plaintiff, a federal prisoner, brought a Bivens action alleging the violation of his constitutional rights arising from an assault.
Summary of this case from Haggard v. StevensOpinion
Civil Action No. 03-3251-KHV.
November 4, 2004
MEMORANDUM AND ORDER
Plaintiff, an inmate at the United States Penitentiary in Leavenworth, Kansas (USP-Leavenworth), brings suit against N.L. Conner, former warden at USP-Leavenworth, and D.W. Reed, a prison guard. Under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), plaintiff alleges that defendants violated his constitutional rights by assaulting him and treating all black inmates as gang members. Plaintiff also alleges that in retaliation for his complaint of assault, defendants denied him adequate medical treatment, food and sanitation; planted a knife in his cell; and instructed other inmates and staff to sexually assault him. Plaintiff seeks compensatory damages for medical injuries and harassment. On April 1, 2004, the Court dismissed plaintiff's complaint for failure to exhaust administrative remedies. See Memorandum And Order (Doc. #45). The Court held, however, that if plaintiff desired to amend his complaint to include only his exhausted claim related to inadequate food, he could do so on or before April 16, 2004. On April 9, 2004, plaintiff filed an amended complaint. See Plaintiff's Motion To Amend Complaint; Declaration (Doc. #48), which was docketed as an amended complaint. This matter is before the Court on the Suggestion Of Death [Of N.L. Conner] Upon The Record Under Rule 25(a)(1) (Doc. #59) filed May 24, 2004; Defendant's Motion To Dismiss Amended Complaint And Motion To Vacate Court's Previous Order Due To New Precedent (Doc. #60) filed May 24, 2004; and plaintiff's motion to strike defendant's motion (Doc. #62) filed June 2, 2004.
Because defendants were federal officers acting under color of federal law, the Court considers plaintiff's constitutional claims under Bivens, not Section 1983. See Jackson v. Yellow Logistics, Inc., 24 F. Supp.2d 1206, 1209-10 (D. Kan. 1998).
Because Warden Conner died after plaintiff filed this case, the motion to dismiss is filed only on behalf of D.W. Reed.
Standards For Motions To Dismiss Under Rule 12(b)(6)
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). In reviewing the sufficiency of plaintiff's complaint, the issue 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).In deciding a Rule 12(b)(6) motion based on exhaustion of administrative remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e, the Court may consider administrative materials attached to the prisoner's complaint. See Steele v. Fed. Bur. of Prisons, 355 F.3d 1204, 1212 (10th Cir. Dec. 29, 2003) (citing Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001)). If the prisoner does not incorporate by reference or attach the relevant administrative decisions, "a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss." Steele, 355 F.3d at 1212 (quoting GFF, 130 F.3d at 1384).
The Court affords a pro se plaintiff some leniency and must liberally construe the complaint. See Oltremari v. Kan. Soc. Rehab. Serv., 871 F. Supp. 1331, 1333 (D. Kan. 1994). While pro se complaints are held to less stringent standards than pleadings drafted by lawyers, pro se litigants must follow the same procedural rules as other litigants. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992), cert. denied, 507 U.S. 940 (1993). The Court may not assume the role of advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
Factual Background
Plaintiff's amended complaint alleges the following facts.
In November of 2002, because plaintiff and two other prisoners had filed complaints against prison guards, Warden Conner instructed prison staff to give plaintiff less than three meals per day and reduce certain food items such as fruit from plaintiff's diet. On November 22, 2002, due to reduced food intake, plaintiff suffered from low blood sugar and was taken to the prison medical facility. On January 28, 2003, Warden Conner instructed prison staff to eliminate one of plaintiff's meals and substitute it with luncheon meat or a cheese sandwich. For seven to ten days, plaintiff received spoiled meat.
On February 11, 2003, plaintiff filed an administrative complaint regarding his diet. See Request For Administrative Remedy No. 290374, Exhibit A-12 to Memorandum In Support Of Defendants' Motion To Dismiss, Or In The Alternative, Motion For Summary Judgment (Doc. #25) filed December 22, 2003. On March 3, 2003, Warden Conner denied plaintiff's administrative request. On May 7, 2003, the Central Office of the Bureau of Prisons denied plaintiff's administrative appeal.
Analysis
I. Suggestion Of Death Of Warden Conner
N.L. Conner died after plaintiff filed this action. See Suggestion Of Death Upon The Record Under Rule 25(a)(1). (Doc. #59). Rule 25(a)(1) of the Federal Rules of Civil Procedure sets forth the procedure to follow upon the death of a party to a lawsuit:
If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons, and may be served in any judicial district. Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.
Fed.R.Civ.P. 25(a)(1). Although Reed has filed a suggestion of death of Warden Conner, plaintiff argues that this action should continue against Warden Conner. See Plaintiff's Objections To Defense Motions (Doc. #62) at 2. The Court liberally construes plaintiff's argument as a timely motion to substitute the representative of the estate of Warden Conner as a defendant.
Plaintiff's remaining claim is based on Warden Conner's actions in his personal capacity. Plaintiff has not asserted an official capacity claim against Warden Conner or alleged facts which would support such a claim. See Pietrowski v. Town of Dibble, 134 F.3d 1006, 1009 (10th Cir. 1998) (plaintiff must allege inadequate hiring or training or that the governmental entity otherwise contributed to the constitutional violation through execution of its policy or custom). Accordingly, the Court does not substitute the current warden of USP-Leavenworth as defendant.
Plaintiff's request to substitute as a defendant the representative of the estate of Warden Conner appears to be well taken. See Pietrowski, 134 F.3d at 1008 (survival of Section 1983 claim determined by looking to state law); K.S.A. § 60-1801 (causes of action for injury to person survive death of person liable), K.S.A. § 60-1802 (no action shall abate by the death of party except actions for libel, slander, malicious prosecution or nuisance). Rule 25(a)(1) contemplates a hearing, however, before the Court substitutes parties. The Court therefore sets a hearing for December 20, 2004 at 1:00 p.m. on the issue whether the representative of the estate of Warden Conner should be substituted as a defendant in this case. The U.S. Marshal's Office is directed to serve a copy of this order on the representative of the estate of Warden Conner in accordance with Rule 4 of the Federal Rules of Civil Procedure.
II. Motion To Vacate Order Of April 1, 2004
Reed argues that the Court should vacate its prior order which allowed plaintiff to amend his complaint to assert the only claim that he exhausted. Specifically, defendant argues that under the total exhaustion rule and Ross v. County of Bernalillo, 365 F.3d 1181 (10th Cir. 2004), the Court must dismiss plaintiff's entire case without prejudice. Although Ross held that a district court must ordinarily dismiss the entire action without prejudice if any claims are unexhausted, it did not address whether a court could grant plaintiff leave to amend the complaint to plead only exhausted claims. See id. at 1190. The total exhaustion rule does not preclude a court from granting plaintiff leave to amend. See Memorandum And Order (Doc. #45) at 8-9 (citing Kozohorsky v. Harmon, 332 F.3d 1141, 1144 (8th Cir. 2003) (district court should permit plaintiff to file amended complaint which includes only exhausted claims);Blackmon v. Crawford, 305 F. Supp.2d 1174, 2004 WL 369883, at *5-6 (D. Nev. Feb. 25, 2004) (same); and Byers v. Strachan, 69 Fed. Appx. 274, 275 (6th Cir. June 20, 2003) (district court may but is not required to address merits of exhausted claims)); see also West v. Kolar, 108 Fed. Appx. 568, 570 (10th Cir. Aug. 17, 2004) (under Ross, district court may permit inmate to voluntarily dismiss unexhausted claims and proceed only on exhausted claims); Monaco v. Sawyer, 2004 WL 2066831, at *2 (D. Minn. Aug. 31, 2004) (district court should permit plaintiff to file amended complaint which includes only exhausted claims). The Court therefore overrules defendant's motion to vacate the Court's prior order which allowed plaintiff to amend his complaint to assert the only claim that he exhausted.
III. Motion To Dismiss Of D.W. Reed
Reed argues that he is entitled to dismissal because plaintiff has not alleged how Reed was personally involved in the conduct giving rise to the claim in the amended complaint. To survive a motion to dismiss for failure to state a claim, plaintiff must allege personal participation by each defendant. See Steele, 355 F.3d at 1214 (direct personal participation required to establish Bivens liability); Kite v. Kelley, 546 F.2d 334, 337 (10th Cir. 1976) (Bivens action against superior only if plaintiff shows "affirmative link" to subordinate's actions);Whayne v. State of Kansas, 980 F. Supp. 387, 394 (D. Kan. 1997) (must allege actual and knowing participation for Bivens liability). Because plaintiff has not alleged personal participation by Reed, the Court must dismiss this action against him.
IT IS THEREFORE ORDERED that Defendant's Motion To Dismiss Amended Complaint And Motion To Vacate Court's Previous Order Due To New Precedent (Doc. #60) filed May 24, 2004 be and hereby is SUSTAINED. D.W. Reed is DISMISSED from this case. IT IS FURTHER ORDERED that plaintiff's motion to strike defendant's motion(Doc. #62) filed June 2, 2004 be and hereby is OVERRULED. IT IS FURTHER ORDERED that on December 20, 2004 at 1:00 p.m., the Court will hold a hearing on the issue whether the representative of the estate of Warden Conner should be substituted as a defendant in this case under Rule 25(a)(1), Fed.R.Civ.P. The U.S. Marshal's Office is directed to serve a copy of this order on the representative of the estate of Warden Conner in accordance with Rule 4 of the Federal Rules of Civil Procedure.