Buffalohead (ID 70630) v. Cook et al

1
In the United States District Court
for the District of Kansas
_____________
Case No. 24-cv-03035-TC
_____________
JEROME BUFFALOHEAD,
Plaintiff
v.
KEVIN COOK, ET AL.,
Defendants
_____________
MEMORANDUM AND ORDER
Jerome Buffalohead, proceeding pro se, sued two corrections of-
ficers—Kevin Cook and Scott Kincaid—after other inmates stabbed
him in his prison cell. Doc. 1. The officers moved to dismiss. Doc. 23.
For the following reasons, their motion is granted.
I
A
1. The defendants seek dismissal for failure to state a plausible
claim under Federal Rule of Civil Procedure 12(b)(6). A federal district
court may grant a motion to dismiss for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a
motion to dismiss for failure to state a claim, the complaint need only
contain “a short and plain statement . . . showing that the pleader is
entitled to relief” from each named defendant. Fed. R. Civ. P. 8(a)(2);
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Two “working prin-
ciples” underlie this standard. Kan. Penn Gaming, LLC v. Collins, 656
F.3d 1210, 1214 (10th Cir. 2011); see also Ashcroft v. Iqbal, 556 U.S. 662,
678–79 (2009). First, a court ignores legal conclusions, labels, and any
formulaic recitation of the elements. Penn Gaming, 656 F.3d at 1214.
Second, a court accepts as true all remaining allegations and logical
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inferences and asks whether the claimant has alleged facts that make
his or her claim plausible. Id.
A claim need not be probable to be considered plausible. Iqbal, 556
U.S. at 678. But the facts, viewed in the light most favorable to the
claimant, must move the claim from conceivable to plausible. Id. at
678–80. The “mere metaphysical possibility that some plaintiff could
prove some set of facts in support of the pleaded claims is insufficient;
the complaint must give the court reason to believe that this plaintiff
has a reasonable likelihood of mustering factual support for these
claims.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177
(10th Cir. 2007).
Plausibility is context specific. The requisite showing depends on
the claims alleged, and the inquiry usually starts with determining what
the plaintiff must prove at trial. See Comcast Corp. v. Nat’l Assoc. of African
Am.-Owned Media, 589 U.S. 327, 332 (2020). In other words, the nature
and complexity of the claim(s) define what plaintiffs must plead. Cf.
Robbins v. Oklahoma, 519 F.3d 1242, 1248–49 (10th Cir. 2008) (compar-
ing the factual allegations required to show a plausible personal injury
claim versus a plausible constitutional violation).
2. These rules do not operate in a vacuum. When a plaintiff, such
as Buffalohead, proceeds pro se, a court must construe his or her
pleadings generously. See Smith v. United States, 561 F.3d 1090, 1096
(10th Cir. 2009). That generosity means a court should overlook the
failure to properly cite legal authority, confusion of various legal theo-
ries, and apparent unfamiliarity with pleading requirements. Id. But it
does not permit a court to construct legal theories on the plaintiff’s
behalf or assume facts not plead. See id.; Garrett v. Selby Connor Maddux
& Janer, 425 F.3d 836, 840 (10th Cir. 2005).
And because Buffalohead filed his lawsuit pro se while incarcer-
ated, an additional pleading standard applies. Ordinarily, a motion to
dismiss is decided on the basis of the pleadings alone. See Swoboda v.
Dubach, 992 F.2d 286, 290 (10th Cir. 1993); Routt v. Howry, 835 F. App’x
379, 380 n.2 (10th Cir. 2020). But “[w]hen the pro se plaintiff is a pris-
oner, a court authorized investigation and report by prison officials
(referred to as a Martinez Report) […] may be necessary to develop a
record sufficient to ascertain whether there are any factual or legal ba-
ses for the prisoner’s claims.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th
Cir. 1991) (referring to a report prepared consistent with Martinez v.
Aaron, 570 F.2d 317, 318–19 (10th Cir. 1978)).
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Usage of the information at the motion to dismiss stage depends
on the plaintiff’s allegations. Generally speaking, a district court re-
viewing a 12(b)(6) motion may not use a Martinez Report to refute facts
pled by the plaintiff or otherwise resolve factual disputes. Gee v. Pacheco,
627 F.3d 1178, 1186 (10th Cir. 2010); Winkel v. Hammond, 704 F. App’x
735 (10th Cir. 2017) (reversing a district court for dismissing a de-
tainee’s claim on a 12(b)(6) because it relied on contested facts from
the Martinez Report). But a district court may use uncontroverted facts
from a Martinez Report to dismiss a claim. Gallagher v. Shelton, 587 F.3d
1063, n.7 (10th Cir. 2009). A fact is uncontroverted if the plaintiff fails
to provide information that would contest that particular fact. Nickel-
berry v. Pharaoh, 221 F.3d 1352 (10th Cir. 2000); cf. Hall v. Bellmon, 935
F.2d 1106, 1109 (10th Cir. 1991) (“A bona fide factual dispute exists
even when the plaintiff’s factual allegations that are in conflict with the
Martinez [R]eport are less specific or well-documented than those con-
tained in the report.”).
B
This dispute concerns an attack that the plaintiff, Jerome Buffalo-
head, suffered in his prison cell in July 2022 and the administrative
remedies he subsequently pursued. Generally speaking, Buffalohead
alleges that a corrections officer, Kevin Cook, intentionally unlocked
Buffalohead’s cell door, allowing two inmates to enter and attack him.
Doc. 1 at 2. Buffalohead also alleges that another officer, Scott Kin-
caid, attempted to cover up Cook’s misconduct during Kincaid’s re-
view of Buffalohead’s administrative claims. Id. at 4–5. Buffalohead
pursued two administrative remedies—a personal injury claim and a
prisoner grievance—before filing this lawsuit against Cook and Kin-
caid. Doc. 1-1 at 1, 20–21. The officers moved to dismiss, asserting
that Buffalohead’s attempts at administrative exhaustion were insuffi-
cient. Doc. 23. The following describes both the stabbing incident it-
self and the administrative processes that followed.
1. On the evening of July 15, 2022, Jerome Buffalohead was at-
tacked and stabbed inside his cell at Lansing Correctional Facility. Doc.
1 at 4. According to Buffalohead, the whole cellhouse was on lock-
down at that time. Id. at 4–5. That is because Buffalohead resided in a
high-security pod that is permanently on lockdown, meaning prisoners
housed in Buffalohead’s pod may leave their cells only with approval.
Doc. 10 at 6; Hall v. Bellmon, 935 F.2d 1106, 1112–13 (10th Cir. 1991)
(noting that uncontroverted facts from a Martinez Report may be help-
ful “to identify and clarify the issues [a] plaintiff raises in his complaint”
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or to supplement the plaintiff’s description of prison policies and prac-
tices). Right before the attack, the prisoners in Buffalohead’s pod were
in various stages of returning to their cells—some were already in their
cells, some were in common areas, and some were returning from work
assignments or other obligations. Doc. 10 at 6.
As the prisoners returned from various obligations, Cook was di-
recting them to return to their assigned cells. Doc. 10 at 6. One pris-
oner approached Cook and claimed he lived in the same cell as Buffa-
lohead. Id. The prisoner asked Cook to unlock the cell so he could
gather the items he needed to shower. Id. at 6–7. Cook unlocked Buf-
falohead’s cell and immediately returned to his officer station. Id.; Doc.
10-2 at ¶ 8.
Moments later, two inmates entered Buffalohead’s cell and at-
tacked him. Doc. 1 at 4; Doc. 10 at ¶ 2. They stabbed Buffalohead nine
times, puncturing his lung, neck, and other areas. Doc. 1 at 4. Cook
called a medical emergency, and Buffalohead was transported to a hos-
pital. Id.; Doc. 10 at ¶ 3. The next day, the hospital discharged Buffa-
lohead with recovery instructions. Doc. 10 at ¶ 5. Buffalohead does
not allege lasting physical injuries, but he has reported ongoing mental
and emotional harm, including symptoms associated with post-trau-
matic stress disorder like “flashbacks, insomnia, paranoia, and hyper-
vigilance.” Id. at ¶ 20; Doc. 1 at 5.
2. On August 4, 2022—about three weeks after the attack—Buf-
falohead filed a personal injury claim under article 16 of chapter 44 of
the Kansas Administrative Regulations. Doc. 1-1 at 20; Kan. Admin.
Regs. § 44-16-104a. In that claim, Buffalohead sought $500,000 in
damages, claiming that Cook intentionally unlocked his cell door to
allow the attack to occur. Doc. 1-1 at 20.
Kincaid was assigned to investigate Buffalohead’s claim. Doc. 1-1
at 20, 23. During the investigation, Kincaid reviewed video footage
from the wrong area of the facility and erroneously identified Buffalo-
head as another prisoner. Id. at 23–24. Based on that misidentification,
Kincaid concluded that Buffalohead was not in his cell at the time of
the incident and therefore determined that Buffalohead had fabricated
his allegations against Cook. Id. Kincaid ultimately recommended
denying Buffalohead’s claim because he concluded the allegations
against Cook were false and that Buffalohead had no permanent dam-
age from the attack because his mental health concerns predated the
stabbing incident. Id. at 23. Buffalohead appealed Kincaid’s decision to
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the warden of the facility and then to the Secretary of Corrections. Id.
at 20–21. Both affirmed the denial. Id.
The Secretary of Corrections, however, recognized that Kincaid
erred by misidentifying Buffalohead in the video footage. Doc. 1-1 at
24. Accordingly, the Secretary of Corrections re-reviewed Buffalo-
head’s claim to ensure he was “not intentionally harmed by staff ac-
tions.” Id. Despite acknowledging Kincaid’s error, the Secretary of
Corrections re-affirmed Kincaid’s denial of Buffalohead’s personal in-
jury claim. Id. In particular, the Secretary of Corrections found that at
the time of the incident Cook was trying to gain control of the unit
during the lockdown and did not intend for Buffalohead or any other
prisoner to be harmed. Id. The Secretary of Corrections also noted that
Buffalohead’s claim was untimely, that the amount of damages he
sought exceeded the allowable limit, and that Buffalohead received im-
mediate and adequate medical attention for his injuries. Id.
3. On November 28, 2022, Buffalohead filed a second administra-
tive claim: a prisoner grievance pursuant to article 15 of chapter 44 of
the Kansas Administrative Regulations. Doc. 1-1 at 1. Article 15 gov-
erns grievances concerning prison conditions, employee or inmate ac-
tions, and incidents within the facility. Kan. Admin. Regs. § 44-15-
101a(d)(1)(B). Like his personal injury claim, Buffalohead’s grievance
alleged that Cook intentionally opened his cell door, permitting the at-
tack. Doc. 1-1 at 1.
As required by article 15, Buffalohead first submitted his grievance
to his unit team. Doc. 1-1 at 1. The unit team declined to consider
Buffalohead’s grievance on the merits because Buffalohead did not at-
tach evidence demonstrating that he had attempted to resolve his claim
informally before filing a formal grievance. Id. The team informed Buf-
falohead that such documentation was necessary for his grievance to
proceed. Id. At that time, Buffalohead’s failure to attach evidence of
his attempt at informal resolution was the only reason the unit team
cited for denying his grievance. See id. Although Buffalohead’s Com-
plaint attached a document labeled “Informal Resolution” that was
dated July 23, 2022, id. at 8–9, there is no allegation or assertion in
Buffalohead’s Complaint or the Martinez Report that Buffalohead at-
tached that document to the grievance he submitted to his unit team
in November 2022.
Instead of refiling a properly supported grievance, Buffalohead ap-
pealed the unit team’s decision directly to the Secretary of Corrections.
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Doc. 1-1 at 6–7. The Secretary of Corrections responded by explaining
that the prisoner grievance process under article 15 required Buffalo-
head to appeal to the facility’s warden before seeking review by the
Secretary. Id. at 16–17. The Secretary of Corrections forwarded Buffa-
lohead’s appeal to the warden, and Kincaid was again assigned as the
investigating officer. Id.
Kincaid denied Buffalohead’s grievance for three reasons, some of
which Buffalohead had already been informed. Doc. 1-1 at 13–14.
First, the grievance was untimely because Buffalohead filed it on No-
vember 28, 2022, but the incident happened in July 2022. Id. at 13.
Second, Buffalohead did not attach documentation showing that he
attempted informal resolution before submitting his initial grievance
to his unit team. Id. Third, Buffalohead appealed directly to the Secre-
tary of Corrections without seeking review by the warden of the facility
first. Id. Buffalohead does not allege that he took any further adminis-
trative action after receiving Kincaid’s decision.
4. One year later, Buffalohead filed this civil rights action against
Cook and Kincaid. Doc. 1. Buffalohead alleges that both officers vio-
lated his right to be free from cruel and unusual punishment—Cook
by unlocking his cell door, and Kincaid by attempting to cover up
Cook’s misconduct during the administrative process. Id. at 4–5. Buf-
falohead alleges that Cook and Kincaid’s conduct has caused him on-
going psychological harm and seeks $250,000 in compensatory and pu-
nitive damages. Id. at 7.
Cook and Kincaid moved to dismiss. They argue that Buffalohead
failed to exhaust his administrative remedies before filing this action.
Doc. 23 at 3–11.
II
Buffalohead failed to comply with the administrative procedures
governing inmate grievances in Kansas prisons. That precludes a fed-
eral court from considering the merits of his claim. As a result, the
defendants’ motion to dismiss is granted.
A
Invoking 42 U.S.C. § 1983, Buffalohead alleges that Cook and Kin-
caid failed to protect him from being attacked and stabbed by other
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inmates in his cell.1 Doc. 1 at 2. In the ordinary case, there is no ex-
haustion requirement for Section 1983 claims. Porter v. Nussle, 534 U.S.
516, 523–24 (2002) (citing Patsy v. Bd. of Regents of Fla., 457 U.S. 496,
516 (1982)). But that rule is different when a current or former prisoner
brings a Section 1983 lawsuit alleging constitutional deprivations while
he or she was incarcerated. Id. (citing Wilwording v. Swenson, 404 U.S.
249 (1971) (per curiam)).
Under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), a
prisoner may not bring any claims stemming from prison conditions
before exhausting all administrative remedies available to him or her in
prison. Prison conditions include “general circumstances or particular
episodes” of prison life, including a single encounter with a prison of-
ficial. Porter, 534 U.S. at 532 (applying the exhaustion requirement to
an inmate's Section 1983 excessive force claim against a corrections
1 Buffalohead’s Complaint did not clarify in what capacity he intended to sue
Cook and Kincaid. When a complaint “does not clearly indicate that the de-
fendants are being sued individually and/or in their official capacities, the
determination must be made by reviewing ‘the course of the proceedings.’”
Houston v. Reich, 932 F.2d 883, 885 (10th Cir. 1991) (quoting Kentucky v. Gra-
ham, 473 U.S. 159, 167 n.14 (1985)); Griffith v. El Paso Cnty., Colo., 129 F.4th
790, 821 n.24 (10th Cir. 2025) (examining the plaintiff’s factual allegations to
determine that her claim against a state actor should be construed as an offi-
cial-capacity claim). Although Cook and Kincaid generously construe Buffa-
lohead to assert both types of claims, his Complaint only appears to assert
individual-capacity claims because there are no allegations that would suggest
that Buffalohead considered any entity to be culpable for the deprivations
that he alleges Cook and Kincaid caused, and he fails to allege any policy or
custom that would support liability under Monell. Crowson v. Wash. Cnty., Utah,
983 F.3d 1166, 1173 n.1 (10th Cir. 2020) (quoting Kentucky v. Graham, 473
U.S. 159, 166 (1985)) (noting that an official-capacity suit “is, in all respects
other than name, to be treated as a suit against the entity”’); Quintana v. Santa
Fe Cnty. Bd. of Comm'rs, 973 F.3d 1022, 1033 (10th Cir. 2020) (explaining that
a Monell claim against a local governing body requires the plaintiff to allege
an official policy or custom). And, in any event, the defendants’ employer—
the State of Kansas—or the entity responsible, if Buffalohead had alleged
one, would be entitled to Eleventh Amendment immunity as an arm of the
state. See Williams v. Utah Dep’t of Corr., 928 F.3d 1209, 1211–12 (10th Cir.
2019) (finding the Eleventh Amendment precluded the plaintiffs’ claims for
damages against two officers in their official capacities on behalf of an arm
of the state); accord Jones v. Courtney, 466 F. App’x 696, 699 (10th Cir. 2012)
(noting that the Kansas Department of Corrections is an arm of the State of
Kansas).
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officer). And exhausting administrative remedies means pursuing “[a]ll
‘available’ remedies, ... [e]ven when the prisoner seeks relief not avail-
able in grievance proceedings, notably money damages.” Id. at 524.
Those complaints must be made “in the place, and at the time, the
prison's administrative rules require.” Woodford v. Ngo, 548 U.S. 81, 89
(2006). Proper exhaustion is required, meaning if administrative reme-
dies are no longer available because the prisoner failed to timely file a
grievance or otherwise fail to comply with procedural requirements, he
or she has not met the requirements for exhaustion. Id. at 92–93.
State prisoners in Kansas are required to exhaust the four-step, se-
quential administrative remedy program codified in article 15 of chap-
ter 44 of the Kansas Administrative Regulations before bringing Sec-
tion 1983 claims in federal court. Kan. Admin. Regs. § 44-15-
101a(d)(1). Article 15 applies to complaints about prison policies or
conditions, actions by employees or inmates, and incidents that oc-
curred inside the corrections facility. Id. at § 44-15-101a(d)(1)(A)–(B).
It is designed to “incorporate several levels of problem solving to as-
sure solution at the lowest administrative level possible.” Id. at § 44-
15-101(d). So, to fully exhaust an article 15 grievance, an inmate must
first attempt informal resolution of the matter with the personnel
“who work with the inmate on a direct or daily basis,” then the inmate
must file a formal grievance with his or her unit team before appealing
to the warden, and then appealing to the Secretary of Corrections. Id.
at § 44-15-101(b)–(d).
The personal injury claim process under article 16 is insufficient to
fulfill the Prison Litigation Reform Act’s exhaustion requirement for a
Section 1983 claim. The substance of prison grievances and personal
injury claims may overlap at times, Sperry v. McKune, 384 P.3d 1003,
1013 (Kan. 2016), but courts regularly hold that the two administrative
processes are separate and distinct administrative remedies. See, e.g.,
Brown v. Schnurr, No. 22-3183, 2023 WL 5163987, at *4 (10th Cir. Aug.
11, 2023) (“[T]he dual-track exhaustion processes of Articles 15 and
16 . . . clearly set out separate and distinct exhaustion paths.”). Indeed,
the text of both articles notes that the two administrative processes are
independent from each other. See, e.g., Kan. Admin Regs. § 44-15-
101a(d)(2) (noting that article 15 “shall not be used in any way as a
substitute for, or as part of, the . . . property loss or personal injury
claims procedure [in article 16]”). So, regardless of whether a prisoner
files a personal injury claim, the Prison Litigation Reform Act’s exhaus-
tion mandate requires that an inmate in Kansas exhaust any
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administrative remedies under article 15’s prison grievance process be-
fore filing a Section 1983 lawsuit about alleged constitutional violations
happening in the prison. See Ross v. Blake, 578 U.S. 632, 639–40 (2016)
(noting that the textual mandates of administrative exhaustion pro-
cesses must be strictly followed).
B
Cook and Kincaid seek dismissal, arguing that Buffalohead failed
to exhaust his administrative remedies before filing this action. For two
independent reasons, these defendants’ motion is granted.
First, Buffalohead’s grievance was untimely. Article 15 requires a
prisoner to file a grievance within fifteen days of discovering the event
that gave rise to the complaint. Kan. Admin. Regs. § 44-15-101b. Buf-
falohead discovered Cook’s alleged conduct no later than July 23, 2022,
the first date that Buffalohead described his allegations against Cook
in writing. See Doc. 1-1 at 8–9. That gave Buffalohead until August 12,
2022 to file a grievance. As Kincaid noted as one of the reasons for
denying the grievance, id. at 13–14, Buffalohead did not do so until
November 28, 2022—more than four months after the deadline. Id. at
1. The same is true of Buffalohead’s claims against Kincaid. Buffalo-
head would have discovered Kincaid’s alleged cover-up of Cook’s mis-
conduct on August 23, 2022, when Kincaid concluded that Buffalo-
head had fabricated his allegations against Cook. See id. at 23–24.
Again, Buffalohead waited more than three months after that discov-
ery to submit his article 15 grievance. This is insufficient. Patel v. Flem-
ing, 415 F.3d 1005, 1109–10 (10th Cir. 2005) (finding that a plaintiff
failed to exhaust his administrative remedies because he filed his griev-
ance months after it was due); Jernigan v. Stuchell, 304 F.3d 1030, 1032–
33 (10th Cir. 2002) (affirming dismissal of a complaint where the pris-
oner failed to file a grievance within the fifteen-day time limit).
Second, Buffalohead failed to comply with each of the four steps
required to exhaust his claim under article 15. Even assuming Buffalo-
head attempted informal resolution, he did not attach any proof of that
attempt to his grievance. Doc. 1-1 at 13–14. That is why the unit team
denied his initial grievance submission. Id. And when Buffalohead
challenged the unit team’s response, he sent his appeal directly to the
Secretary of Corrections instead of appealing to the warden of his fa-
cility first. Id. at 6–7. Failing to comply with state-law exhaustion re-
quirements precludes consideration of Buffalohead’s claim. See Thomas
v. Parker, 609 F.3d 1114, 1118–19 (10th Cir. 2010) (affirming the
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district court’s dismissal of a prisoner’s Section 1983 claim because the
prisoner did not properly complete the three requirements of the state-
law grievance process); Jernigan, 304 F.3d at 1032 (finding that an in-
mate who started but did not complete the administrative process to
exhaust his remedies for a Section 1983 claim).
C
Buffalohead’s response does not change this result. Styled as a
“Motion to Stay,” Buffalohead opposes Cook and Kincaid’s motion to
dismiss. Doc. 26. But Buffalohead focuses his arguments on the merits
of his Eighth Amendment claims and does not confront the officers’
arguments regarding administrative exhaustion under the Prison Liti-
gation Reform Act. See id. Buffalohead did not properly exhaust his
constitutional claims, so dismissal is mandatory. Ross, 578 U.S. at 640–
41 (emphasizing the mandatory nature of the exhaustion requirement).
To conclude otherwise would contradict Congress’s decision in the
Prison Litigation Reform Act “to eliminate unwarranted federal-court
interference with the administration of prisons,’ Woodford, 548 U.S. at
93, and ‘to . . . afford[ ] corrections officials time and opportunity to
address complaints internally before allowing the initiation of a federal
case.’” Estrada v. Smart, 107 F.4th 1254, 1267–68 (10th Cir. 2024)
(quoting Porter, 534 U.S. at 525).
III
For the foregoing reasons, Cook and Kincaid’s Motion to Dismiss,
Doc. 23, is GRANTED.
It is so ordered.
Date: December 31, 2025 s/ Toby Crouse
Toby Crouse
United States District Judge
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