Opinion
Case No. 05-3397-JTM.
August 14, 2007
MEMORANDUM AND ORDER
The present matter arises on defendants' motion to dismiss (Dkt. No. 58). For the following reasons, the court grants defendants' motion to dismiss and finds that plaintiff's motion to stay (Dkt. No. 66) is moot.
I. Factual Background:
On June 10, 2005, plaintiff was in custody of the Kansas Department of Corrections ("KDOC"), at the Topeka Correctional Facility. When plaintiff became very angry, she was forcibly removed from her cell. At the time of her removal, plaintiff's clothes were removed and she alleged that she was strip searched by male employees, specifically, defendant Van Dycke. Thereafter, KDOC officials placed plaintiff in medical segregation for five days. While in medical segregation, she wore a paper gown as clothing. During her time in segregation, plaintiff alleges that she was denied prescription medications and a "medically prescribed apparatus for body [sic] waste removal." Dkt. No. 1, at pp. 2-3. Plaintiff alleges that officials were aware of her medical needs, they nevertheless denied access to treatments. She, however, does not specify which defendants denied her access to treatment. Plaintiff also alleges that she was observed in her cell by male guards, thus constituting an invasion of her privacy. Finally, plaintiff alleges that during the cell extraction, she was physically injured and that an item of property was damaged by a prison employee, though she does not identify the officers who caused the alleged injuries.
II. Standard of Review:
In a motion to dismiss, under Fed.R.Civ.P. 12(b)(6), the court assumes the veracity of the "well-pleaded factual allegations" in the complaint and draws all reasonable inferences in the plaintiff's favor. Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir. 1987); see Zinermon v. Burch, 494 U.S. 113, 118 (1990). The issue is not whether the plaintiff ultimately will prevail, but whether the plaintiff is entitled to offer evidence to support his claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). Dismissal is to be used cautiously as courts have an obligation to promote the liberal rules of pleadings as well as to protect the interests of justice. Cayman Exploration Corp. v. United Gas Pipe Line, 873 F.2d 1357 (10th Cir. 1989); Davis v. Olin, 886 F. Supp. 804, 807 (D. Kan. 1995).
A court must construe pleadings by a pro se party liberally, see Haines v. Kerner, 404 U.S. 519, 520 (1972), but the court "will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
III. Conclusions of Law:
First, plaintiff argues that the alleged strip search conducted by male guards violated her Eighth Amendment rights. However, the court finds that the allegation did not violate her Eighth Amendment rights because she has not demonstrated that the strip search was deliberately indifferent to her health and safety, nor that it caused her physical pain. Under the Eighth Amendment, a state actor must engage in conduct which violates "contemporary standards of decency," Estelle v. Gamble, 429 U.S. 97, 103 (1976), though courts intervene when the deprivation is "objectively, sufficiently serious," and that the charged official acts with "deliberate indifference" to inmate health or safety. Farmer v. Brennan, 511 U.S. 825 (1994). Plaintiff alleges that her clothes were forcibly removed and that she was given a paper gown to wear during her medical segregation. But, plaintiff has not alleged that the search was performed in order to inflict "unnecessary and wanton" pain required to demonstrate a use of force claim. Hudson v. McMillan, 503 U.S. 1, 9 (1992).
Furthermore, with respect to plaintiff's claim, defendant Van Dycke is entitled to qualified immunity for his actions. A government official performing a discretionary function is generally shielded from civil damages, as long as the conduct does not violate a clearly established right for which a reasonable person would have known. Douglas v. Dobbs, 419 F.3d 1097, 1100 (10th Cir. 2005). If a defendant raises the issue of qualified immunity, the burden shifts to plaintiff. Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001). Plaintiff must show that a constitutional or statutory right has been violated and that the right was clearly established. Garramone v. Romo, 94 f.3d 1446, 1449 (10th Cir. 1996). When defendant Van Dycke engaged in the alleged conduct, he was conducting his official duties. Although the Tenth Circuit has held that a strip search is an invasion of personal rights under the Fourth Amendment, Chapman v. Nichols, 989 F.2d 393, 396 (10th Cir. 2993), plaintiff brings the present claim under the Eighth Amendment. There is no circuit precedent which dictates a blanket prohibition on opposite gender strip searches in all situations, nor that they constitute cruel and unusual punishment. Therefore, defendant Van Dycke is not liable under the Eighth Amendment for this action because he could not have reasonably believed that his actions constituted a civil rights violation under the Eighth Amendment.
Second, plaintiff alleges that the withholding of prescription medication and medical equipment violated her Eighth Amendment rights. As part of her allegation, she also claims that Defendant Koerner was aware of the condition which required the prescription medication and medical device. Under the Eighth Amendment deliberate indifference standard, the acting official must demonstrate "something more than mere negligence," but less than "acts or omissions for the very purpose of causing harm . . ." Farmer, 511 U.S. at 835. Additionally, the official must know that a risk of serious harm exists, but acts or fails to act despite the risk. Id. at 837. Finally, plaintiff must also allege personal participation. Coleman v. Turpen, 697 F.3d 1341, 1346 (10th Cir. 1982). For supervisors, the individual must have "participated or acquiesced in the constitutional deprivations of which complaint is made." Kite v. Kelley, 546F.2d 334, 337 (10th Cir. 1976). Viewing plaintiff's complaint with the most liberal interpretation, plaintiff sufficiently alleges that defendant Koerner knew of her medical condition, but she does not set forth how defendant Koerner deprived her of her medication or equipment nor what effect the deprivation had on her medical needs.
Additionally, plaintiff claims that a five-day placement in medical segregation violated her protected liberty interest within her Due Process rights. Specifically, she argues that her placement in medical segregation required procedural Due Process before the transfer. Generally, an inmate does not have a protected liberty interest in a transfer to less amenable living conditions for non-punitive reasons. Hewitt v. Helms, 459 U.S. 460, 468 (1983). See also Wolff v. McDonnell, 418 U.S. 539, 560 (1974) (federal courts are required to defer discretion to prison officials who are more capable of managing daily operations in a volatile environment). Plaintiff's transfer to medical isolation occurred after plaintiff exhibited a "very angry" disposition and refused to take medication. Based on these actions, prison officials made the decision to transfer plaintiff for her own safety. This action does not pose a violation of plaintiff's Due Process rights.
As noted above, 42 U.S.C. § 1983 claims require personal participation. Coleman, 697 F.2d at 1346. Plaintiff has failed to allege that the remaining named defendants, including, Green, Patterson, Boyd, Haybarker, Essman, Rodgers, Stirton, and McDaniels, actually participated in the alleged strip search. Therefore, dismissal of these defendants is warranted.
IT IS ACCORDINGLY ORDERED this 14th day of August, 2007, that defendants' motion to dismiss (Dkt. No. 58) is granted and plaintiff's motion to stay (Dkt. No. 66) is moot.