Woodward (ID 200025235) v. Zmuda et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DAVID L. WOODWARD,
Plaintiff,
v. 	CASE NO. 25-3110-JWL
JEFF ZMUDA, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff and Kansas prisoner David L. Woodward brings this pro se civil rights action
under 42 U.S.C. § 1983. Plaintiff is in custody at the Lansing Correctional Facility (LCF) in
Lansing, Kansas and he has paid the required filing fee. This matter comes now before the Court
on Plaintiff’s response (Doc. 28) to the Court’s memorandum and order to show cause (“MOSC”)
issued on October 23, 2025. (Doc. 27.) For the reasons set forth below, the Court will dismiss
Defendant Zmuda from this matter and will dismiss Count III. Plaintiff will be granted time in
which to file a supplement to Counts I and II of his complaint that complies with Federal Rule of
Civil Procedure 15(d).
In addition, Plaintiff will be granted time in which he may move to file a second amended
complaint. If Plaintiff files a motion for leave to file a second amended complaint, the Court will
review the proposed second amended complaint and will issue further orders as necessary. If
Plaintiff does not file a proper motion for leave to file a second amended complaint on or before
the deadline set in this order, this Court will order service on the remaining Defendants of the
currently operative amended complaint.
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I. 	Screening Standards
Because Plaintiff is a prisoner, the Court is required by statute to screen his pleadings, such
as the amended complaint, and to dismiss it or any portion of it that is frivolous, fails to state a
claim on which relief may be granted, or seeks relief from a defendant immune from such relief.
28 U.S.C. § 1915A(a) and (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, 48-49 (1988) (citations omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir.
1992). The 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 (10th Cir. 2006). On the other hand, 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).
“[W]hen 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).
Furthermore, 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 Court must determine whether Plaintiff has “nudge[d] his claims across the
line from conceivable to plausible.” See Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.
2009) (quotation marks and citation omitted). “Plausible” in this context refers “to the scope of the
allegations in a complaint: if they are so general that they encompass a wide swath of conduct,
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much of it innocent,” then the plaintiff has not met his or her burden. Robbins v. Okla., 519 F.3d
1242, 1247 (10th Cir. 2008) (citing Twombly, at 550 U.S. at 570).
II. The Operative Amended Complaint (Doc. 8.)
The controlling, or operative, pleading in this matter is the amended complaint filed on
July 17, 2025. (Doc. 8.) Therein, Plaintiff names as Defendants Kansas Secretary of Corrections
Jeff Zmuda; former LCF Warden Jesse Howes; LCF mail clerk J. Crouse; KDOC CM II Darcie
Holthaus; and LCF ISA Leslie West. Id. at 1-3. As the factual background for this action, Plaintiff
alleges that on April 1, 2025, delivery of all magazines—including religious materials—to Plaintiff
stopped. Id. at 2. Plaintiff further alleges that his incoming and outgoing mail is being censored
and he “is being deprived of story writing.” Id.
In Count I of the amended complaint, Plaintiff asserts the violation of the First Amendment
rights to access information and to exercise his religion. Id. at 4. As supporting facts for Count I,
Plaintiff alleges that after LCF ceased delivering magazines to him on April 1, 2025, he asked an
LCF Unit Team Supervisor why he was no longer receiving his magazines. Id. She replied that
Defendant Howes, who was the LCF warden at the time, and Defendant Holthaus had permanently
suspended delivery of all publications to Plaintiff. Id. On May 3, 2025, Plaintiff began receiving
mail censorship notices for publications that came to him. Id. at 5.
The notices, which were issued by Defendant Crouse, stated that the publications were a
threat to either public officials or the general public and/or that Plaintiff was engaging in
unauthorized correspondence with persons under 18 years old. Id. Later notices stated that delivery
was denied because the publications contained pictures or images of persons under 18 years old.
Id. Plaintiff protested the censorship by mail to Defendant Zmuda, but his protests were denied
and the delivery of publications has not resumed. Id. at 5.
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In Count II, Plaintiff asserts the violation of his right to correspond by mail with individuals
outside of LCF, as guaranteed by the First and Fourteenth Amendments. Id. at 4. As supporting
facts for Count II, Plaintiff alleges that on May 23, 2025, two letters addressed to his son, Corey
Woodward, were censored and not processed into outgoing mail to be delivered to Corey
Woodward. Id. at 4, 6. Plaintiff assumes that Defendant Crouse opened the letters. Id. at 4. Plaintiff
further alleges that up to six additional letters he placed into outgoing mail have been intercepted
and not mailed, whereas prior to May 23, 2025, his outgoing letters were mailed without difficulty.
Id. at 4-5. Plaintiff believes that all of his outgoing mail is “being stopped”; he bases this belief in
part on the continuing efforts of publishers to mail material to him despite Plaintiff’s mailings to
those publishers stating that LCF was refusing to deliver the material to Plaintiff. Id. at 5.
In Count III, Plaintiff asserts the violation of his First Amendment right to free speech. Id.
at 7. As supporting facts for Count III, Plaintiff points to the two letters to Corey Woodward that
were opened on May 23, 2025 by Defendant Crouse. Id. The letters included “partial stories.” Id.
Plaintiff alleges that he has not received the required notice of censorship that states the reason his
mail is being censored. Id. at 6. He also alleges that he received a disciplinary report based on the
content of the stories in his letters to Corey Woodward and he believes that any future stories he
writes will be subject to censorship and seizure and may result in punishment of Plaintiff. Id.
Plaintiff asserts that Defendant West is the individual seizing the letters. Id. Thus, Plaintiff asserts,
he essentially “is prohibited from writing fictional stories of his choice.” Id.
As relief in this matter, Plaintiff seeks an order directing LCF to resume delivery to him of
all publications, magazines, and religious materials; enjoining LCF from preventing Plaintiff’s
outgoing mail from reaching the postal service; and directing LCF to allow Plaintiff to exercise
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his constitutional rights to free speech and freedom of expression without sanctions or punishment.
Id. at 8.
III. The Martinez Report (Doc. 12) and the October 23, 2025 MOSC (Doc. 27)
On July 18, 2025, the Court entered a memorandum and order (“M&O”) directing Kansas
Department of Corrections (KDOC) officials to prepare and submit a Martinez report. (Doc. 10.)
The M&O provided: “Upon the filing of that Report, the Court will screen Plaintiff’s amended
complaint and will issue further orders as appropriate.” Id. at 2. The Martinez report (Doc. 12) was
filed on September 18, 2025, and submission to the Court of the exhibits to the Martinez Report
was completed on October 9, 2025. (See Docs. 22 and 23.)
The Court reviewed the Martinez Report and the exhibits thereto and, on October 23, 2025,
issued a memorandum and order to show cause (“MOSC”) explaining that “Defendant Zmuda is
subject to dismissal from this action because even liberally construed, the operative amended
complaint does not allege the type of direct personal participation by Defendant Zmuda required
to state a plausible claim for relief against him.” (Doc. 27, p. 6.) After setting forth the controlling
law, the MOSC stated:
The only allegations regarding Defendant Zmuda in the operative amended
complaint are that he is the Kansas Secretary of Corrections, he “deprived plaintiff
of publications by censorship of same in violation of the [First] Amendment,” and
that Plaintiff “mailed protests for this censorship” to Defendant Zmuda, all of which
were denied. 	(Doc. 8, p. 1, 5.) An allegation that an official denied or failed to
respond to a grievance is not enough to show the personal participation required for
a plausible claim under § 1983. See Gallagher v. Shelton, 587 F.3d 1063, 1069
(10th Cir. 2009). The Court previously has applied this rationale to censorship
protests. See Meredith v. Roberts, 2012 WL 1380330, *1, 3-4 (D. Kan. April 20,
2012) (unpublished) (holding that complaint alleging secretary of corrections
denied censorship protests did not sufficiently allege the secretary’s direct personal
participation in an alleged constitutional violation).
The Court sees no reason to divert from this well-established path.
Plaintiff’s allegations that he submitted protests to Defendant Zmuda and that
Defendant Zmuda denied those protests are not sufficient, even when liberally
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construed 	and 	taken 	as 	true, 	to 	show 	Defendant 	Zmuda’s 	direct 	personal
participation in the violation of Plaintiff’s First Amendment rights. Therefore,
Plaintiff has failed to state a plausible claim against Defendant Zmuda and
Defendant Zmuda is subject to dismissal from this action.
Id. at 6-7.
The MOSC explained the Court’s conclusion that “Counts I and II, as pled in the operative
amended complaint, survive the statutorily required screening of the amended complaint.” Id. at
7. With respect to Count III, however, the Court concluded that “Count III is subject to dismissal
because it fails to state a plausible claim for relief.” Id. at 8. The M&O set forth in detail the
reasoning behind this finding. Id. at 8-10. The MOSC then directed Plaintiff to show good cause
why Defendant Zmuda and Count III of the amended complaint should not be dismissed. Id. at 10.
Plaintiff timely filed his response (Doc. 28) on November 4, 2025.
IV. Discussion
As a threshold matter, Plaintiff devotes a significant portion of his response to contesting
or otherwise arguing against the Court accepting the facts alleged in the Martinez Report. (See,
Doc. 28, p. 20-30.) Plaintiff is assured that the Court has not improperly used the information in
the Martinez Report or taken it as true when there is evidence to the contrary before the Court.
When the Court orders a Martinez report to assist with the screening process, the Martinez report
“is treated like an affidavit, and the Court is not authorized to accept the factual findings of the
prison investigation when the plaintiff has presented conflicting evidence.” Hall, 935 F.2d at 1111
(citation omitted).
“The purpose of the Martinez report is to ascertain whether there is a factual as well as a
legal basis for the prisoner’s claims.” Gee v. Estes, 829 F.2d 1005, 1007 (10th Cir. 1987). In other
words, “[i]n determining whether a plaintiff has stated a claim, the district court may not look to
the Martinez report, or any other pleading outside the complaint itself, to refute facts specifically
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pled by a plaintiff, or to resolve factual disputes.” Swoboda v. Dubach, 992 F.2d 286, 290 (10th
Cir. 1993). Thus, although the Court may consider the Martinez report to aid it “in fleshing out
possible legal bases of relief” when the Court screens a case under 28 U.S.C. § 1915A(b)(1)-(2),
it has not considered the Martinez report “to resolve material factual issues.” See Northington v.
Jackson, 973 F.2d 1518, 1521 (10th Cir. 1992).
Plaintiff contends in his response that he has stated sufficient involvement by Defendant
Zmuda to state a plausible claim for relief against him. (Doc. 28, p. 1-3.) Plaintiff alleges that
under Buck v. City of Albuquerque, 549 F.3d 1269 (10th Cir. 2008), he need not allege Defendant
Zmuda’s direct participation in a constitutional violation. Id. at 3. Plaintiff’s reliance on Buck is
misplaced.
Buck rejected a police captain’s argument that he could not be found liable under § 1983
for the allegedly unconstitutional arrest of the plaintiffs because he did not personally arrest them.
Buck, 549 F.3d at 1279. The Tenth Circuit noted that when the plaintiffs’ allegations were taken
as true, the captain was “at least on the scene directing, if not even more personally involved in”
the arrest of at least one plaintiff. 549 F.3d at 1279-80. With respect to other plaintiffs, the Tenth
Circuit concluded that the plaintiffs’ factual allegations showed that the captain’s “personal
involvement was the catalyst of the chain of events leading to [the plaintiffs’] arrests,” so the
plaintiffs had shown sufficient personal involvement by the captain. Id. at 1275, 1279-80.
The case now before the Court does not contain alleged facts that support the same
conclusions. Even taking all of Plaintiff’s allegations in the operative amended complaint as true,
he has not shown that Defendant Zmuda was personally involved in the decision to censor
Plaintiff’s mail. Plaintiff merely asserts that he protested the censorship to Defendant Zmuda, who
denied his protests. (Doc. 8, p. 5.) In the response, Plaintiff reinforces this, stating: “Jeff Zmuda
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was listed as a defendant since he has the power to grant the protest of censorship of plaintiff
magazines as is noted on the protest side of the Mail Censorship Notices. Those protests have been
denied for no further reason on the Notices.” (Doc. 28, p. 1.)
As previously explained to Plaintiff, the Tenth Circuit held in Gallagher v. Shelton, 587
F.3d 1063, 1069 (10th Cir. 2009), which it issued after Buck, that an allegation that an official
denied a grievance is not enough to show the personal participation required to state a plausible
claim under § 1983. (See Doc. 27, p. 7.) Buck does not alter the Court’s previous conclusion that
Defendant Zmuda is subject to dismissal from this matter because Plaintiff has failed to sufficiently
allege his direct personal participation in a constitutional violation.
Plaintiff’s citation to Kentucky v. Graham, 473 U.S. 159 (1985), is similarly unpersuasive.
(Doc. 28, p. 3.) As Plaintiff notes, the Graham Court stated: “On the merits, to establish personal
liability in a 42 U.S.C. § 1983 action, it is enough to show that the official, acting under color of
state law, caused the deprivation of a federal right.” Id.; see Graham, 473 U.S. at 166 (emphasis
in original). As the MOSC explained, however, Plaintiff has not plausibly alleged that Defendant
Zmuda caused a constitutional violation. To this end, Plaintiff now argues for the first time that
Defendant Zmuda is a proper defendant in this matter based on his signing and implementing
policies related to censorship. (See Doc. 28, p. 5-10.)
A plaintiff alleging supervisory liability of this type must show “(1) the defendant
promulgated, created, implemented or possessed responsibility for the continued operation of a
policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind
required to establish the alleged constitutional deprivation.” Dodds v. Richardson, 614 F.3d 1185,
1199 (10th Cir. 2010), cert. denied, 563 U.S. 960 (2011). “[T]he factors necessary to establish a
[supervisor's] § 1983 violation depend upon the constitutional provision at issue, including the
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state of mind required to establish a violation of that provision.” Id. at 1204. Plaintiff has not
alleged facts supporting a plausible claim that Defendant Zmuda acted with the required state of
mind to support supervisory liability.
The Court will not individually address the many other legal citations Plaintiff relies upon
in his response to the MOSC. Plaintiff is assured, however, that the Court has carefully considered
the cases and other authority Plaintiff cites in his response to support his arguments regarding the
dismissal of Defendant Zmuda. (See Doc. 28, p. 1-10.) Specifically, the Court finds that Plaintiff
has not pled facts that, when taken as true, plausibly support finding that Defendant Zmuda acted
as a co-conspirator to deprive Plaintiff of a constitutional right. See id. at 4-5. Accordingly, the
Court maintains its prior conclusion that Plaintiff has not stated a plausible claim for relief against
Defendant Zmuda. Thus, Defendant Zmuda will be dismissed from this action.
Plaintiff also addresses in his response the Court’s conclusion that Count III fails to state a
plausible claim for relief. (Doc. 28, p. 10-19.) To the extent that Plaintiff characterizes Defendants’
actions as attempts to police his thoughts, the Court is unmoved. Even liberally construing the facts
pled in the operative amended complaint, there is no plausible claim that Defendants took any
action based on Plaintiff’s thoughts alone. Similarly, to the extent that Plaintiff questions whether
the rights of others have been infringed, see id. at 19, Plaintiff has no standing to raise claims on
behalf of other individuals. The Court has read and carefully considered Plaintiff’s arguments in
his response and, even in light of those arguments, finds that Count III of the operative amended
complaint fails to state a plausible claim on which relief can be granted. Thus, Court III will be
dismissed from this action.
Liberally construing the pro se response, Plaintiff appears to wish to supplement the
amended complaint with additional information regarding events that have occurred since he filed
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the amended complaint. (Doc. 28, p. 6-7.) He also expresses a desire to further amend the amended
complaint to add defendants and claims. Id. at 36. Rule 15 of the Federal Rules of Civil Procedure
governs amended and supplemental pleadings. Subsection (a)(1) of Rule 15 addresses a party’s
entitlement to amend his or her complaint once as a matter of course. See Fed. R. Civ. P. 15(a)(1).
But Plaintiff has already amended his complaint once, so Rule 15(a)(1) does not control.
Rule 15(a)(2) states: 	“In all other cases, a party may amend its pleading only with the
opposing party’s written consent or the court’s leave. The court should freely give leave when
justice so requires.” Local Rule 15.1(a) sets forth the steps that a party must follow if he or she
wishes to amend a pleading that may not be amended as a matter of right, which includes
submitting a motion for leave to amend the pleading and attaching to that motion the proposed
pleading. If Plaintiff wishes to amend the operative amended complaint in order to add Defendants
or claims, he must file a proper motion to file a second amended complaint that complies with the
requirements set forth in the local rules.
Similarly, Rule 15(d) of the Federal Rules of Civil Procedure governs supplemental
pleadings and states:
On motion and reasonable notice, the court may, on just terms, permit a
party to serve a supplemental pleading setting out any transaction, occurrence, or
event that happened after the date of the pleading to be supplemented. The court
may permit supplementation even though the original pleading is defective in
stating a claim or defense. The court may order that the opposing party plead to the
supplemental pleading within a specified time.
Fed. R. Civ. P. 15(d). Thus, to the extent that Plaintiff wishes to supplement his amended
complaint, he must file a motion to do so, also in compliance with Local Rule 15.1, which applies
to any “party filing . . . a motion for leave to file a . . . document that may not be filed as a matter
of right.” See D. Kan. L.R. 15.1.
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The Court will grant Plaintiff time in which to file a motion for leave to file a second
amended complaint and/or a motion for leave to supplement his amended complaint. Plaintiff is
cautioned, however, that any proposed supplement to the amended complaint that he files should
not include claims against Defendant Zmuda or supplements to Count III of the amended
complaint since this order dismisses those claims. Similarly, Plaintiff should not include in any
proposed second amended complaint the claim identified as Count III in the amended complaint,
nor should he name Jeff Zmuda as a Defendant unless the facts alleged in the proposed second
amended complaint justify doing so.
As a reminder, if Plaintiff moves for leave to file a second amended complaint and the
motion is granted, the second amended complaint will not simply supplement the currently
operative amended complaint; instead, the second amended complaint will completely replace the
amended complaint. Therefore, any claims or allegations not included in the second amended
complaint will no longer be before the Court. In other words, Plaintiff may not simply refer in the
second amended complaint to his earlier complaints or the attachments thereto. The second
amended complaint must contain all allegations and claims that Plaintiff intends to pursue in the
action, including those to be retained from the original or amended complaint.
Plaintiff must write the number of this case (25-3110-JWL) at the top of the first page of
the proposed second amended complaint and he must name every defendant in the caption of the
second amended complaint. See Fed. R. Civ. P. 10(a). Plaintiff must also refer to each defendant
again in the body of the second amended complaint, where Plaintiff must allege specific facts
describing the unconstitutional acts taken by each defendant, including dates, locations, and
circumstances. Although Plaintiff may attach additional pages to the form complaint if necessary,
he should not use the form merely to refer the Court to attached pages and he should clearly label
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the additional pages to indicate which portion of the form the additional pages address. Similarly,
if Plaintiff chooses to file a motion for leave to supplement the operative amended complaint, he
must ensure that his proposed supplement clearly indicates the portions of the amended complaint
it is intended to supplement.
IT IS THEREFORE ORDERED BY THE COURT that Defendant Jeff Zmuda is
dismissed from this action without prejudice because the operative amended complaint fails to
state a plausible claim against him.
IT IS FURTHER ORDERED that Count III of this matter is dismissed for failure to state
a claim.
IT IS FURTHER ORDERED that Plaintiff is granted to and including December 10,
2025, in which to file a complete and proper motion for leave to file a second amended complaint
and/or a motion for leave to file a supplement to the amended complaint as stated in this order.
The clerk is directed to provide Plaintiff with the required form for filing a second amended
complaint.
IT IS SO ORDERED.
Dated November 10, 2025, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE
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