Holloman v. Schnurr

• Decision Date: 26 May 2016
• Docket Number: Case No. 15-3067-JTM
• Parties: EDWARD E. HOLLOMAN, Plaintiff, v. DAN SCHNURR, ET AL., Defendants.
• Court: U.S. District Court — District of Kansas

EDWARD E. HOLLOMAN, Plaintiff, v. DAN SCHNURR, ET AL., Defendants.

Case No. 15-3067-JTM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

May 26, 2016

MEMORANDUM AND OMNIBUS ORDER

Plaintiff Edward E. Holloman, an inmate confined at El Dorado Correctional Facility (EDCF) in El Dorado, Kansas, filed this pro se civil rights complaint against EDCF staff for depriving him of water for sixteen hours. Because Holloman is a prisoner, federal statute requires the court to screen his complaint and to dismiss it or any portion thereof that is frivolous, fails to state a claim upon which relief may be granted, or seeks relief from a defendant immune from such relief. 28 U.S.C. § 1915(A)(a) and (b); 28 U.S.C. § 1915(e)(2)(B). Before screening the complaint, the court will first consider Holloman's Application to Proceed Without Prepayment of Fees. (Dkt. 2).

I. Application to Proceed Without Prepayment of Fees

The fee for filing a civil action in federal court is $400.00, which consists of the statutory fee of $350.00 under 28 U.S.C. § 1914(a) plus an administrative fee of $50.00. For one granted leave to proceed without prepayment of fees, the fee is $350.00. After reviewing Holloman's application, the court grants it. This, however, does not mean that Holloman is relieved of the obligation to pay the full fee of $ 350.00 for filing a civil action. 28 U.S.C. § 1915(b)(1). Instead, this merely entitles him to pay the filing fee in installment payments deducted automatically from his inmate trust fund account as authorized by 28 U.S.C. § 1915(b)(2).

Holloman, however, must pay an initial partial filing fee. Section 1915(b)(1) requires the court to assess an initial partial filing fee of twenty percent of the greater of the average monthly deposits or average monthly balance in the prisoner's account for the six months immediately preceding the date of filing of a civil action. As required, Holloman attached an "Inmate Account Statement" in support of his application. Upon examining his inmate account, the courts finds Holloman's average monthly deposit during the relevant period was $8.55, and the average monthly balance was $290.69. The court therefore assesses an initial partial filing fee of $58.00, twenty percent of the average monthly balance, rounded to the lower half dollar.

II. Screening

A. Legal Standard

"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, 48-49 (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). However, 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). 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). The complaint must offer "more than labels and conclusions, and aformulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court accepts all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006). Still, "when the allegations in a complaint, however true, could not raise a claim of entitlement to relief," dismissal is appropriate. Twombly, 550 U.S. at 558. To avoid dismissal, the complaint's "factual allegations must be enough to raise a right to relief above the speculative level" and there must be "enough facts 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, at Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th Cir. 2007).

In order to state a claim of cruel and unusual punishment based on the conditions of confinement, the plaintiff has to establish "deliberate indifference." Wilson v. Seiter, 501 U.S. 294, 296-97 (1991); Estelle v. Gamble, 429 U.S. 97, 103 (1976). Deliberate indifference includes both an objective and subjective component. Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir. 2005). To satisfy the objective component, a prisoner must allege facts showing he or she is "incarcerated under conditions posing a substantial risk of serious harm." Farmer v. Brennan, 511 U.S. 825, 834 (1994); Martinez, 430 F.3d at 1304. With regard to the subjective component, the plaintiff must allege that the defendant acted with a culpable state of mind. Farmer, 511 U.S. at 834, 837 ("[A] prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.");Despain v. Uphoff, 264 F.3d 965, 975 (10th Cir. 2001) (Deliberate indifference "requires both knowledge and disregard of possible risks."). It is not enough to allege that the official should have known of the risk of harm. Farmer, 511 U.S. at 837-38.

B. Allegations and Claims

Holloman's allegations and exhibits attached to his complaint indicate the following facts for this lawsuit. On August 29, 2014, at approximately 2:50 p.m., Holloman was placed on crisis level and put in Cell 128 H-pod. Complaint at 14.¹ He was on a hunger strike and suicide watch. Because he was upset, he put water under his door. As a result, EDCF staff turned off his water at approximately 3:00 p.m.

At approximately 5:50 p.m., Lt. Brown stopped by and told Holloman that his water would be turned on if he would not flood his cell. Holloman replied, "I'm cool. I don't want it on." Id.

At approximately 6:40 p.m., Captain Trimal stopped by Holloman's cell and posted a water restriction notice on Holloman's cell door. Captain Trimal told Holloman that his water would be turned back on at 11 o'clock, to which Holloman said, "I don't want it on." Id.

Segregation officer (SO) Spear worked the 6 to 10 shift on August 29, 2014. Id. at 4. He never offered Holloman water or read the notice. Id. at 6. Holloman claims that no one read the notice or offered him any water until 6:20 a.m. the next morning. Id. at 14.

At approximately 5:10 a.m. on August 30, 2014, Holloman asked SO Seiser when he would get some water. Id. Seiser replied that he did not know if Holloman was supposed to get any water. Holloman then asked Seiser about the water restriction notice on his door. At this time, Master Sgt. Hunt stopped by and Holloman asked Hunt if he knew about the waterrestriction. Hunt said "he didn't know." Id. Hunt told Holloman that he should have asked for water and Holloman replied, "I'm on suicide watch/hunger strike and I don't got to ask - you must provide it to me. My water off (sic)." Id. Hunt or Seiser left to check the computer regarding the water restriction procedures. Seiser also called the lieutenant, who told him that water should have been offered to Holloman every four hours. Seiser admitted he erred and offered Holloman water at this time. Id. at 15.

At 6:20 a.m., Holloman told Captain Castro about the water deprivation incident.² Captain Castro said he would email his superiors. He also ordered the officers who work the 6 to 2 shift to offer Holloman water every hour until his water was turned back on and to allow Holloman to flush his stool. Id.

At 2:00 p.m., Holloman spoke to Master Sgt. Sullivan about what happened and told him he wanted to see Lt. Brown. Id. Spears walked by and said he offered Holloman water twice. Holloman called Spears a liar and said Lt. Brown will clear this up. When Lt. Brown showed up, he admitted that he forgot to pass the water restriction notice to the other officers and apologized that this happened to Holloman. Id. at 6, 15.

At approximately 10:40 on August 30, 2014, after Holloman told him that he would file a a cruel and unusual claim, Master Sgt. Hunt "snapped and bang[ed] [Holloman's] door" and yelled "I'm going to get you and I'll have all other shift . . . do it as well. . . ," in front of everyone in H-pod. Id. at 16.

As to defendant Graves, Holloman alleged that "[she] received narratives on this issue. She had asked me what was I wanting to settle this. However, I was on suicide watch and had to wait til I get off to talk. She will testify to this." Id. at 6.

Holloman asserts three Eighth Amendment violations. Count I alleges that Master Sgt. Hunt never offered Holloman water and threatened him. Count 2 alleges that Lt. Brown "forgot to pass the order on to [the] other officers." Count 3 alleges that Spear, who worked the 6 to 10 shift on August 29, 2014, never gave Holloman water or allowed him to flush his stool. Holloman seeks $2 million for mental and physical cruelty, $3,000 for the verbal threat, and Hunt's job. Id. at 5, 16.

C. Discussion

The court finds the complaint fails to state a claim which entitles Holloman to § 1983 relief for the following reasons. As to Holloman's claim of deprivation of water for sixteen straight hours, it is deficient in five ways. First, the deprivation period covered one meal and Holloman admits he was offered tea with his supper. Id. at 7. Courts have held there is no § 1983 claim if a prisoner was offered beverages at meal times. Tesch v. County of Green Lake, 157 F.3d 465,...