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finding an actionable Eighth Amendment claim where the plaintiff alleged that he was denied nutritionally adequate food, served food that was spoiled and outdated, and that the food was prepared in an area infested with rodents and insects
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Case No. 03-3383-JAR.
November 23, 2004
MEMORANDUM ORDER AND OPINION GRANTING MOTION TO DISMISS
This matter comes before the Court on defendants' Ellen Pettis, Mike Neve, Duane Meyers, Tabor Medill, R. Suttles, David R. McKune, William Cummings, and Kathleen Sebelius ("State defendants") Motion to Dismiss (Doc. 23), and Motion for Ruling (Doc. 46) on the Motion to Dismiss. State defendants seek dismissal of plaintiff's 42 U.S.C. § 1983 action for failure to exhaust administrative remedies and for failure to state a claim upon which relief may be granted. For the reasons stated below, defendants' motion to dismiss is granted.
Background
Plaintiff, an inmate at the Lansing Correctional Facility, brings this § 1983 action pro se alleging that State defendants, in their individual capacity and under color of state law, committed numerous constitutional violations. The Court has attempted to summarize plaintiff's claims as follows. KCI Work Environment
The Court has extracted these facts from plaintiff's Complaint and accepts these facts as true for the purposes of this Motion to Dismiss.
On or about June 18, or June 19, 2003, defendant Duane Meyers, plaintiff's work supervisor at Kansas Correctional Industries (KCI) began to curse loudly and point his finger at plaintiff. Plaintiff immediately reported this incident to another KCI supervisor, Ellen Pettis. Plaintiff believed Meyers was reprimanded because shortly after plaintiff reported the incident, plaintiff was trapped by Meyers and told to mind his own business. Plaintiff also reported this incident to Pettis. On June 25, 2003, Meyers stood around at KCI "mugging" plaintiff for about thirty minutes, and when plaintiff turned to see what Meyers wanted, he was sent home for the day missing six hours of pay. Pettis did nothing in response to Meyers' alleged hostility. After returning from a vacation, Meyers was again hostile toward plaintiff. On July 25, 2003, plaintiff warned Meyers that he would file a formal complaint grieving the hostile environment if Meyers' conduct continued. Plaintiff filed a formal grievance against Meyers on July 28, 2003, alleging a hostile work environment.
Loss of KCI Job/Other Incidents of Retaliation
When plaintiff threatened to file a formal complaint against Meyers on July 25, 2003, Meyers said "if you file a complaint on me, I'll make sure you never get another hourly pay job." After plaintiff formally filed the grievance, defendants Tabor Medill and R. Suttles, plaintiff's assigned Unit Team, told plaintiff that "they were tired of the grievances" and that plaintiff need not worry about the hostile work environment because "today is your last day." Plaintiff then returned to work, where he was met by Pettis who informed plaintiff that he would be reassigned because of his grievances. Plaintiff told Pettis that he would have to petition the courts and Pettis responded, "well I definitely don't want you here then, finish out your day, and don't come back." The following day, plaintiff was reassigned to the prison laundry, which has a salary of $21.00 per month. His KCI job paid between $56.00 and $58.00 per month. By their actions, Pettis, Meyers and Medill also conspired to deter plaintiff's access to the Courts.
In addition to defendants' retaliatory firing of plaintiff, Medill and Suttles retaliated against plaintiff for filing grievances by delaying his request for a fan for over a month; illegally seizing his mail order of books; and making copies of his mail without providing a seizure notice.
Failure to Investigate Grievances
Medill and Suttles interfered in the grievance procedure by intercepting grievance forms and answering them or returning them to plaintiff in violation of Kansas Department of Corrections policy. From April 23, 2003 through July 31, 2003, plaintiff filed between ten and twelve grievances, but only two grievances were answered. In addition to Medill and Suttles, defendants David McKune, William Cummings and Kathleen Sebelius failed to properly investigate plaintiff's complaints and to take appropriate corrective action.
Dining Hall Conditions
Neve subjected plaintiff to cruel and unusual punishment by denying plaintiff a balanced diet; serving outdated and spoiled foods; and serving food in areas infested with insects and rodents. By failing to properly respond to plaintiff's complaints concerning the unsanitary state of the dining hall, Sebelius has too violated plaintiff's Eighth Amendment rights. In addition to serving food in unsanitary conditions, Neve has denied plaintiff kosher meals at dinner and substituted and served non-kosher meals in place of kosher dinners, thereby infringing on plaintiff's fundamental religious tenets.
Based upon these events and omissions, plaintiff brings the following claims: (1) a hostile environment claim; (2) a retaliation claim; (3) a claim for failure to investigate prison grievances; (4) a claim for conspiracy to deter his access to the judicial system; (5) an equal protection claim; (6) a cruel and unusual punishment claim; and (7) a free exercise of religion claim.
Discussion
Pro se standards
Because plaintiff is pro se, the Court must be mindful of certain considerations. A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than pleadings drafted by lawyers. Thus, if a pro se plaintiff's complaint can reasonably be read "to state a valid claim on which the plaintiff could prevail, [the court] should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." However, it is not "the proper function of the district court to assume the role of advocate for the pro se litigant." For that reason, the court should not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues," nor should it "supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf."
Rule 12(b)(6) standards
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Id.
Id.
Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991).
Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
The court will dismiss a cause of action for failure to state a claim only when it appears beyond a doubt that the plaintiff can prove no set of facts in support of the theory of recovery that would entitle him or her to relief, or when an issue of law is dispositive. The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, and all reasonable inferences from those facts are viewed in favor of the plaintiff.
Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998).
Neitzke v. Williams, 490 U.S. 319, 326 (1989).
Maher, 144 F.3d at 1304.
Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984).
The issue in resolving a motion such as this is not whether the plaintiff will ultimately prevail, but whether he or she is entitled to offer evidence to support the claims. It is not the court's function "to weigh potential evidence that the parties might present at trial." The court construes the allegations in the light most favorable to the plaintiff. These deferential rules, however, do not allow the court to assume that a plaintiff "can prove facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Dismissal is a harsh remedy to be used cautiously so as to promote the liberal rules of pleading while protecting the interests of justice. However, as the Tenth Circuit has held, conclusory allegations are insufficient to state a claim for which relief may be granted under 42 U.S.C. § 1983. Section 1983 42 U.S.C. § 1983 provides:
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).
Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).
Scheuer v. Rhodes, 416 U.S. at 236; Hall v. Bellmon, 935 F. 2d at 1109.
Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 526 (1983) (footnote omitted).
Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1359 (10th Cir. 1989).
Wise v. Bravo, 666 F.2d 1328, 1333 (10th Cir. 1981); see generally, Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 532 (10th Cir. 1998) (reversing district court's denial of a motion to dismiss based upon qualified immunity where Plaintiff had advanced only conclusory allegations that defendants denied him equal protection).
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Section 1983 does not create substantive rights. Rather it provides a recovery mechanism for deprivation of a federal right. To establish a cause of action under § 1983, a plaintiff must allege (1) deprivation of a federal right by (2) a person acting under color of state law.
Watson v. City of Kansas City, 857 F.2d 690, 694 (10th Cir. 1988).
Id. (citing Gomez v. Toledo, 446 U.S. 635, 640 (1980)).
A. Dismissal Without Prejudice — Failure to Exhaust Administrative Remedies
State defendants urge that plaintiff's complaint should be dismissed for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act (PLRA). Pursuant to the PLRA, "no action shall be brought with respect to prison conditions" until a prisoner exhausts his available administrative remedies. Exhaustion is mandatory such that "[r]esort to a prison grievance process must precede resort to a court."
Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1207 (10th Cir. 2003).
A complaint that fails to allege the requisite exhaustion of remedies is tantamount to one that fails to state a claim upon which relief may be granted. To avoid dismissal, "[a] prisoner must: (1) plead his claims with a short and plain statement . . . showing that [he] is entitled to relief . . . and (2) attach a copy of administrative dispositions to the complaint, or, in the absence of written documentation, describe with specificity the administrative proceedings and its outcome."
Id. at 1210.
Id. (internal quotations omitted)
Plaintiff has not attached any grievance forms to his complaint, therefore, the Court must determine whether he has described with particularity the administrative proceedings and its outcome. In his response to state defendants' motion to dismiss, plaintiff refers the Court to paragraph 31 of his complaint. Paragraph 31 provides:
All issues were presented to the Ks. Dept. of Corrections for review on several occasions after going through the Governor's Office and Sec. Of Corr. several times, plaintiff finally obtained final reviews on the 6/10 and 6/11 grievances and the 2 July 28, 2003, grievances relating to the work issues and job retaliatory firing.
This paragraph does not satisfy the administrative exhaustion requirement because plaintiff has not described the administrative process and its outcome with particularity. Moreover, plaintiff only states that he has presented the issues contained in four of his grievances to the Kansas Department of Corrections, leaving it unclear exactly what issues he has grieved. Thus, the Court must examine each of plaintiff's claims independently to determine whether he sufficiently pled administrative exhaustion.
With regard to his hostile work environment claim and retaliation claim relating to the loss of his KCI job, Plaintiff states in paragraph 15 of his Complaint that he filed a formal complaint alleging that Meyers created a hostile work environment at 6:30 a.m. on July 28, 2003. In paragraph 18 of his Complaint, he pleads that he filed a grievance concerning his retaliatory job loss at 3:30 p.m. on July 28, 2003. Plaintiff additionally states in paragraph 23 that "the 2 grievances of July 29, 2003, [concerning] work related issues and improper firing were finally answered. . . ."
Plaintiff has failed to describe with specificity the administrative proceedings and its outcome with regard to the remainder of his claims. Plaintiff states that from April 23, 2003 through August 2003, he filed ten to twelve grievances "over the unlawful conditions of his confinement," but that he received answers to only two of the grievances. Plaintiff has not described which incidents he grieved in the complaints. Nor has plaintiff satisfied the Court that the grievances were properly filed and the administrative process fully exhausted.
Plaintiff may argue that it was futile to grieve problems in the complaint process itself, such as the failure of certain defendants to investigate his complaints, but this does not excuse the exhaustion requirement. It is settled that exhaustion is required even if plaintiff felt that a prison official frustrated his ability to proceed with administrative remedies. Exhaustion is similarly required even if plaintiff understood that the claims put forth in his complaint were non-grievable under prison policy. Thus, the Court determines that all of plaintiff's claims, except for his hostile environment claim and retaliatory job loss claim must be dismissed without prejudice for failure to exhaust administrative remedies.
Id. at 1214.
Id.
Although plaintiff has sufficiently pled administrative exhaustion with regard to his hostile environment and retaliation claims, his entire lawsuit must be dismissed because "the PLRA contains a total exhaustion requirement." When multiple claims have been joined, all available prison grievance remedies must be exhausted as to all of the claims. The presence of unexhausted claims in a complaint requires the district court to dismiss the entire action without prejudice. Nevertheless, an action may be dismissed with prejudice, where a district court determines, after an examination on the merits, that absent exhaustion a party would nonetheless be unsuccessful in his case.
Ross v. County of Bernalillo, 365 F.3d 1181, 1189 (10th Cir. 2004).
Id. at 1188.
Id. at 1189.
See Steele, 355 F.3d at 1214.
B. Dismissal With Prejudice
State defendants allege that plaintiff's complaint should be dismissed with prejudice because even assuming, arguendo, that plaintiff had sufficiently pled exhaustion of the prison grievance procedure, his complaint would still fail. Namely, state defendants aver that plaintiff has failed to allege a constitutional violation with regard to two of his claims; and that plaintiff's claims fail to state a cause of action as defendants are entitled to qualified immunity.
1. Failure to Allege Constitutional Violations
State defendants argue plaintiff's claims against defendants Medill and Suttles must be dismissed with prejudice because plaintiff failed to allege constitutional violations in these claims. State defendants further allege that, as a frequent filer of lawsuits, plaintiff is experienced enough to allege pertinent constitutional violations. Although plaintiff has filed many lawsuits, he is but a pro se litigant without any formal legal training. The Court can discern from the face of his complaint the constitutional rights implicated in plaintiff's claims against Medill and Suttles, and consequently declines to dismiss these claims with prejudice.
2. Qualified Immunity
State defendants further maintain that they are entitled to qualified immunity from plaintiff's § 1983 claims. The defense of qualified immunity shields government officials performing discretionary functions from individual liability under § 1983 unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Where a qualified immunity defense is asserted in a Rule 12(b)(6) motion, the court must apply a heightened pleading standard, and require the complaint to contain "specific, non-conclusory allegations of fact sufficient to allow the district court to determine that those facts, if proved, demonstrate that the actions taken were not objectively reasonable in light of clearly established law."
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Dill v. City of Edmond, 155 F.3d 1193, 1204 (10th Cir. 1998).
The Tenth Circuit has developed a framework for analyzing claims of qualified immunity: once a defendant pleads qualified immunity, the plaintiff bears the burden of (1) coming forward with sufficient facts to show that the defendant's actions violated a federal constitutional or statutory right and (2) demonstrating that the right violated was clearly established at the time of the conduct at issue. "In order to carry [this] burden, the plaintiff must do more than identify in the abstract a clearly established right and allege that the defendant has violated it. Rather, the plaintiff must articulate the clearly established constitutional right and the defendant's conduct which violated the right with specificity. . . ." The court must first determine whether Plaintiff has alleged a deprivation of a constitutional right; only after determining that plaintiff has alleged a deprivation of a constitutional right, does this court ask whether the right allegedly violated was clearly established at the time of the conduct at issue.
Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1255 (10th Cir. 1998) (citing Clanton v. Cooper, 129 F.3d 1147, 1153 (10th Cir. 1997); Albright v. Rodriquiez, 51 F.3d 1531, 1534 (10th Cir. 1995).
Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir. 1995) (citations omitted).
Baptiste, 147 F.3d at 1255 n. 6 (citing County of Sacramento v. Lewis, 523 U.S. 833 (1998)).
State defendants argue that plaintiff has merely identified constitutional rights in the abstract and then conclusorily stated that defendants violated those rights. With regard to some of plaintiff's claims, the Court agrees that plaintiff has failed to allege a deprivation of a constitutional right. The Court will address each of plaintiff's claims in turn.
Retaliation
Plaintiff alleges that Pettis, Meyers, Medill and Suttles retaliated against him for filing grievances by terminating him from KCI. Prison officials may not retaliate against an inmate because of the inmate's exercise of his constitutional rights. This principle applies even where the action taken in retaliation would be otherwise permissible. "As the Supreme Court [has] made clear . . . however, it is not the role of the federal judiciary to scrutinize and interfere with the daily operations of a state prison, and [the Tenth Circuit's] retaliation jurisprudence does not change this role." Accordingly, a plaintiff "must prove that `but for' the retaliatory motive, the incidents to which he refers, including the disciplinary action, would not have taken place." An inmate claiming retaliation must "allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights."
Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990).
Id. at 948.
Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998).
Id.
Id.
Here, plaintiff alleges that immediately after he filed his hostile work environment complaint, he was fired from his KCI job. Although the loss of a prison job would not support an independent cause of action, in this instance plaintiff has pled that "but for" his grievance, he would not have lost the job. Plaintiff notes that his KCI supervisor, Pettis, approved of his work at KCI until he filed the grievance but that shortly after filing a complaint, he was fired from KCI. The close temporal proximity between plaintiff grieving the hostile environment and plaintiff's firing is indicative of unlawful retaliation. Therefore, the Court concludes that Pettis, Meyers, Medill and Suttles are not entitled to qualified immunity and plaintiff's retaliation claim must be dismissed without prejudice.
See Smith, 899 F.2d at 948.
In addition to alleging retaliation in the form of job loss, plaintiff pleads that Medill and Suttles retaliated against him by delaying his request for a fan for over a month; illegally seizing his mail order of books; and making copies of his mail without providing a seizure notice. Plaintiff has not pled that "but for" any retaliatory motive, these actions would not have taken place. In fact, plaintiff has pled no specific facts suggestive of even a connection between the exercise of his constitutional rights and the alleged retaliatory actions. As such, these retaliation claims must be dismissed with prejudice. Conspiracy to deter plaintiff's access to the courts
Plaintiff also suggests that Pettis, Meyers and Medill conspired to deter his access to the courts. The Constitution guarantees prisoners "adequate, effective, and meaningful" access to the courts. Moreover, the right of access guarantees the right to present to a court of law allegations concerning the violation of constitutional rights. Plaintiff's invocation of the judicial process in this lawsuit belies his claim that he was denied access to the court by state defendants' alleged conspiracy. Indeed, the Court notes that plaintiff has not one, but two lawsuits currently pending before it. Additionally, plaintiff has filed a request for temporary retraining order and a request for injunctive relief. In short, plaintiff's suggestion that state defendants have infringed upon his free access to the courts is without merit. Dismissal with prejudice of this claim on qualified immunity grounds is therefore appropriate.
Bounds v. Smith, 430 U.S. 817, 822 (1977).
Smith, 899 F.2d at 947.
Failure to investigate grievances
Plaintiff's claim that Pettis, Medill, Suttles, Cummings and McKune violated his constitutional rights by failing to investigate his grievances must similarly fail. It is settled that an inmate does not have a constitutional entitlement to grievance procedure; nor does the state creation of a grievance procedure create any federal constitutional rights. Hence any alleged violation of the grievance procedure does not amount to a constitutional violation. Because plaintiff has failed to articulate an established constitutional right and the defendant's conduct which violated the right, defendants Pettis, Medill, Suttles, Cummings and McKune are entitled to qualified immunity on plaintiff's claim that they failed to properly investigate his grievances. The Court will dismiss this claim with prejudice.
Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994).
See Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996).
Equal Protection
Plaintiff also brings an equal protection claim against Pettis, stemming from her involvement in the decision to terminate his KCI job, and against McKune and Cummings due to their involvement in the prison grievance process. The threshold requirement of an equal protection claim is a showing that the government discriminated among groups. "Unless a legislative classification either burdens a fundamental right or targets a suspect class, it need only bear a `rational relation to some legitimate end' to satisfy the Equal Protection Clause." Plaintiff does not plead that he is a member of a suspect class, nor that the government discriminated among groups. Nor does he allege in his complaint, or in his response to this motion to dismiss, that he was treated differently from other inmates by Pettis, McKune or Cummings. As such, he has failed to allege a constitutional violation and defendants are entitled to qualified immunity; this claim will be dismissed with prejudice.
Kinnell v. Graves, 265 F.3d 1125, 1128 (10th Cir. 2001).
Id.
Cruel and Unusual Punishment
In addition, plaintiff argues that Sebelius and Neve subjected him to cruel and unusual punishment. The Eighth Amendment prohibits the infliction of "cruel and unusual punishments" on those convicted of crimes. "Punishments incompatible with the evolving standards of decency that mark the progress of a maturing society or involv[ing] the unnecessary and wanton infliction of pain are repugnant to the Eighth Amendment."
Wilson v. Seiter, 501 U.S. 294, 296-97 (1991).
Hudson v. McMillian, 503 U.S. 1, 10 (1992).
To prevail on an Eighth Amendment claim based on conditions of confinement, a prisoner must show that the condition complained of is "sufficiently serious" to implicate constitutional protection, and that prison officials acted with "`deliberate indifference' to inmate health or safety." A condition is sufficiently serious if it poses a substantial risk of serious harm to inmate health or safety. And, deliberate indifference means more than mere negligence; the prisoner must show reckless behavior, in which a person "knows of and disregards an excessive risk to inmate health or safety"; "the person 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."
DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
Farmer, 511 U.S. at 834.
Id. at 837
The Court concludes that plaintiff's Eighth Amendment claims concerning the unsanitary conditions of the dining hall state a cause of action. A prisoner is entitled to "nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it." Even food which meets the standard of nutritional adequacy may violate the constitution when the area where it is prepared is so unsanitary that it threatens inmates' health. Plaintiff has alleged that he was denied nutritionally adequate food, served food that was spoiled and outdated, and that the food was prepared in an area infested with rodents and insects. These allegations support a "sufficiently serious" condition to implicate constitutional protection.
Ramos v. Lamm, 639 F.2d 559, 570-71 (10th Cir. 1980).
Smith v. Harvey County Jail, 889 F. Supp. 426, 430 (D. Kan. 1995)
Plaintiff must also allege that Neve and Sebelius acted with deliberate indifference to his needs. With regard to Neve, plaintiff has satisfied the deliberate indifference requirement. He has alleged that Neve worked in the dining hall and served unsanitary food; these allegations suggest that Neve acted with deliberate indifference to inmate health or safety. By serving outdated or spoiled food in an environment infested with rodents and insects, Neve arguably disregarded a risk of harm of which he was aware. Thus, dismissal of plaintiff's Eighth Amendment claim against defendant Neve must be without prejudice.
Plaintiff appears to be suing Sebelius in her capacity as Governor, rather than as a result of any personal participation in the conditions of the dining hall. He avers that Sebelius "is the leading governing authority over the State of Kansas." Personal participation, however, is an essential allegation in a § 1983 action. A supervisor may not be held liable in a § 1983 action on a theory of respondeat superior. "Instead, to establish supervisory liability, a plaintiff must show that an affirmative link exists between the [constitutional] deprivation and either the supervisor's personal participation, [her] exercise of control or direction, or [her] failure to supervise." Plaintiff has not alleged an affirmative link between the unsanitary conditions in the dining hall and Sebelius' personal participation, her exercise of control or direction or her failure to supervise. Plaintiff has thus not alleged a violation of a constitutional right and this claim must be dismissed with prejudice.
Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976).
Gagan v. Norton, 35 F.3d 1473, 1476 n. 4 (10th Cir. 1994).
Worrell v. Henry, 219 F.3d 1197, 1214 (10th Cir. 2000).
Free Exercise of Religion
Lastly, plaintiff claims that Neve interfered with plaintiff's free exercise of religion by denying plaintiff a kosher diet. A plaintiff is entitled to invoke First Amendment protection if his religious beliefs are sincerely held. Indeed, the Tenth Circuit has held that an individual's genuine and sincere belief in religious dietary practices warrants constitutional protection. Plaintiff alleges that he was denied kosher meals and that such meals are a fundamental tenet of his religion. Thus, the Court concludes that plaintiff has sufficiently alleged a First Amendment claim and this claim shall be dismissed without prejudice.
Frazee v. Illinois Dept. of Employment Sec., 489 U.S. 829, 833 (1989).
LaFevers v. Saffle, 936 F.2d 1117, 1119 (10th Cir. 1991).
C. Sua Sponte Dismissal
State defendants do not mention plaintiff's Title VII hostile work environment claim in their motion to dismiss. Nevertheless, the Court has reviewed the claim and concludes that it should be dismissed pursuant to § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted. Sua sponte dismissal of a pro se complaint for failure to state a claim "is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend." In determining whether dismissal is proper, the court must accept the allegations of the complaint as true and must construe those allegations, and any reasonable inferences that might be drawn from them, in the light most favorable to the plaintiff. Moreover § 1915(e)(2)(B) allows a district court to dismiss a complaint "at any time," and there is no requirement under the statute that the court must first provide notice or an opportunity to respond. Hostile Work Environment
Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002).
Id.
Jones v. Barry, 33 Fed. Appx. 967, 971, 2002 WL 725431 at *2 (10th Cir. April 25, 2002).
Plaintiff alleges that Meyers created a hostile work environment and that Pettis allowed such an environment to continue. Plaintiff invokes Title VII in his complaint, but plaintiff plainly may not bring a Title VII claim. As a prison inmate, plaintiff is not an employee of the Kansas Department of Corrections, and therefore may not bring a hostile environment claim under the rubric of Title VII. Moreover, the hostile environment of which plaintiff complains consists only of Meyers cussing at plaintiff and then later "mugging" him. This complained of conduct does not rise to the level of a constitutional violation. Mere verbal harassment does not state a constitutional violation. Nor is the Court aware of any constitutional violation resulting from a supervisor staring at an employee while at work. Because plaintiff may not bring a Title VII claim, allowing him leave to amend his complaint would be futile, and the Court must dismiss the claim with prejudice pursuant to § 1915(e)(2)(B).
See Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991).
According to urbandictionary.com, "mugging" is a slang term which means to stare at someone, or to stare at someone in a threatening way.
See Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979)
Conclusion
In sum, the Court dismisses plaintiff's claims for: denial of access to the courts; failure to investigate grievances; and denial of equal protection pursuant to Rule 12(b)(c) with prejudice. The Court similarly dismisses plaintiff's Eighth Amendment claim against Sebelius and retaliation claims against Medill and Suttles concerning the delay of plaintiff's request for a fan; the seizure of his mail order of books; and the copying of his mail with prejudice for failure to state a claim. Plaintiff's hostile work environment claim is dismissed sua sponte with prejudice. Dismissal of plaintiff's retaliation claim relating to his KCI employment; Eighth Amendment claim against defendant Neve; and free exercise of religion claim shall be without prejudice. IT IS THEREFORE ORDERED BY THE COURT that state defendants' Motion to Dismiss (Doc. 23) is GRANTED as stated herein. By this Order, state defendant's Motion for Ruling (Doc. 45) is similarly GRANTED.
IT IS SO ORDERED.