Aich v. Reno County Correctional Facility et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JESSE JOSEPH AICH,
Plaintiff,
v. 	CASE NO. 25-3235-JWL
RENO COUNTY CORRECTIONAL
FACILITY, et al.,
Defendants.
MEMORANDUM AND ORDER TO SHOW CAUSE
Plaintiff Jesse Joseph Aich is hereby required to show good cause, in writing to the
undersigned, why this action should not be dismissed due to the deficiencies in Plaintiff’s
Complaint that are discussed herein. 	Plaintiff is also given the opportunity to file an amended
complaint to cure the deficiencies.
I. Nature of the Matter before the Court
Plaintiff brings this pro se civil rights action under 42 U.S.C. § 1983. The Court granted
Plaintiff leave to proceed in forma pauperis. Plaintiff is in custody at the Reno County Correctional
Facility in Hutchinson, Kansas (“RCCF”).
Plaintiff names as Defendants the RCCF and Turnkey. Plaintiff alleges that Turnkey is a
conduit of the jail and a “third party vendor by proxy.” (Doc. 1, at 2.) Plaintiff alleges that the
RCCF allowed Defendant Turnkey to put kiosks in the jail. Plaintiff alleges that while he can say
whatever he wants on the phone or in messages to staff, his personal messages are censored in
violation of his First Amendment right to freedom of speech. Id. Plaintiff alleges that Turnkey
has no power or authority to act independently of the RCCF. Id.
Plaintiff alleges that when he attempted to ask his aunt if she was well and how her
grandkids were doing, his correspondence was denied due to forbidden content. Id. at 3. Plaintiff
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alleges that he also attempted to send a text about the history of the war, and it was not sent due to
forbidden content. 	Id. 	Plaintiff seeks to be able to “communicate with [his] Family and loved
ones without being censored per [his] right to freedom of speech.” Id. at 5.
II. Statutory Screening
The Court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are
legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that
seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)–
(2).
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). 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, “when 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).
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). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to
relief’ requires “more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action.” 	Twombly, 550 U.S. at 555 (citations omitted). 	The complaint’s “factual
allegations must be enough to raise a right to relief above the speculative level” and “to state a
claim to relief that is plausible on its face.” Id. at 555, 570.
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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, 492 F.3d 1158, 1163
(10th Cir. 2007). 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) (citation omitted).
The Tenth Circuit has pointed out that the Supreme Court’s decisions in Twombly and
Erickson gave rise to a new standard of review for § 1915(e)(2)(B)(ii) dismissals. 	See Kay v.
Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (citations omitted); see also Smith v. United States,
561 F.3d 1090, 1098 (10th Cir. 2009). As a result, courts “look to the specific allegations in the
complaint to determine whether they plausibly support a legal claim for relief.” Kay, 500 F.3d at
1218 (citation omitted). Under this new standard, “a plaintiff must ‘nudge his claims across the
line from conceivable to plausible.’” Smith, 561 F.3d at 1098 (citation omitted). “Plausible” in
this context does not mean “likely to be true,” but rather refers “to the scope of the allegations in
a complaint: if they are so general that they encompass a wide swath of conduct, much of it
innocent,” then the plaintiff has not “nudged [his] claims across the line from conceivable to
plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S.
Ct. at 1974).
III. DISCUSSION
1. First Amendment Claim
Plaintiff believes that he should be able to communicate freely with family and loved ones
without any censorship. 	Correspondence between a prisoner and an outsider implicates the
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guarantee of freedom of speech under the First Amendment and a qualified liberty interest under
the Fourteenth Amendment.” Treff v. Galetka, 74 F.3d 191, 194 (10th Cir. 1996) ((citing Procunier
v. Martinez, 416 U.S. 396, 408, 418 (1974), overruled in part by Thornburgh v. Abbott, 490 U.S.
401, 413-14 (1989)); see also Gee v. Pacheco, 627 F.3d 1178, 1188 (10th Cir. 2010) (“The
Supreme Court has recognized that ‘[a]ccess is essential . . . to families and friends of prisoners
who seek to sustain relationships with them.’ ”) (quoting Thornburgh, 490 U.S. at 407).
These constitutional rights may, however, be subject to limitations when those limitations
relate to legitimate penological interests unrelated to the suppression of expression. 	Bell v.
Wolfish, 441 U.S. 520, 546 (1979) (“maintaining institutional security and preserving internal
order and discipline are essential goals that may require limitation or retraction of the retained
constitutional rights of both convicted prisoners and pretrial detainees”). 	The United States
Supreme Court:
also has recognized, however, that “courts are ill equipped to deal
with the increasingly urgent problems of prison administration and
reform.” [Turner v. Safley, 482 U.S. 78, 84 (1987)] (internal
quotation marks omitted). Accordingly, prisoners’ rights may be
restricted 	in 	ways 	that 	“would 	raise 	grave 	First 	Amendment
concerns outside the prison context.” Thornburgh v. Abbott, 490
U.S. 401, 407 [ ] (1989). In particular, “when a prison regulation
impinges on inmates’ constitutional rights, the regulation is valid if
it is reasonably related to legitimate penological interests.” Turner,
482 U.S. at 89, 107 S. Ct. 2254.
Gee, 627 F.3d at 1187.
Plaintiff has given no information as to what his messages said, other than that he was
inquiring as to his family’s well-being, and about the history of the war. A plaintiff “must include
sufficient facts to indicate the plausibility that the actions of which he complains were not
reasonably related to legitimate penological interests.” 	Id. at 1188. 	“This is not to say that [a
plaintiff’ must identify every potential legitimate interest and plead against it; we do not intend
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that pro se prisoners must plead, exhaustively, in the negative in order to state a claim . . . It is
sufficient that he plead facts from which a plausible inference can be drawn that the action was not
reasonably related to a legitimate penological interest.” Id.
Plaintiff is given the opportunity to submit an amended complaint that pleads sufficient
factual allegations to raise his right to relief above the speculative level.
2. Defendants
A. The RCCF
Plaintiff names the RCCF as a defendant. “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 (1988) (emphasis added). Prison and jail facilities are not proper
defendants because none is a “person” subject to suit for money damages under § 1983. See Will
v. Michigan Dept. of State Police, 491 U.S. 58, 66, 71 (1989); Clark v. Anderson, No. 09-3141-
SAC, 2009 WL 2355501, at *1 (D. Kan. July 29, 2009); see also Aston v. Cunningham, No. 99–
4156, 2000 WL 796086 at *4 n.3 (10th Cir. Jun. 21, 2000) (“a detention facility is not a person or
legally created entity capable of being sued”); Busekros v. Iscon, No. 95-3277-GTV, 1995 WL
462241, at *1 (D. Kan. July 18, 1995) (“[T]he Reno County Jail must be dismissed, as a jail is not
a ‘person’ within the meaning of § 1983.”). 	Plaintiff’s claims against the RCCF are subject to
dismissal.
B. State Actor/Personal Participation
Plaintiff also names Turnkey as a defendant. Plaintiff alleges that he “attempted to inquire”
regarding his aunt and her grandkids, and sent a text about the history of the war. Plaintiff alleges
that his inquiry “was denied due to forbidden content,” and “it” would not let him send his text.
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Plaintiff fails to state who was monitoring his communications by text or who prevented the texts
from being sent. He has not named any individuals from the RCCF or any employees of Turnkey
as defendants.
Plaintiff must show that a defendant was acting under color of state law as required under
§ 1983. 	A plaintiff “must show that the alleged deprivation was committed by a person acting
under color of state law.” West, 487 U.S. at 48 (emphasis added). Courts have considered whether
private companies providing telephone services to inmates should be considered state actors for
purposes of § 1983. See Montgomery v. Securus Technologies, 2020 WL 3343000, at *4 (W.D.
Ky. 2020). 	Many courts “have considered this issue and decided that companies providing
telephone services to inmates are not ‘state actors’ within the meaning of Section 1983.” Id. (citing
Pierce v. Kalamazoo Cty. Jail, No. 1:14-CV-684, 2014 WL 5599693, at *2 (W.D. Mich. Nov. 3,
2014) (“Plaintiff alleges that TelMate contracted with the state to provide phone services to the
county jail, but the provision of telephone services to inmates in a county jail, and then charging
for them pursuant to its contract with the county, does not transform TelMate into a state actor for
purposes of § 1983.” (citation omitted)); Iswed v. Caruso, No. 1:08-CV-1118, 2009 WL 4251076,
at *3 (W.D. Mich. Nov. 24, 2009) (“Plaintiff fails to allege any basis for the court to conclude that
Embarq’s provision of telephone services to the prison are fairly attributable to the state. As a
consequence, Embarq will be dismissed because it is not a state actor.”); Evans v. Skolnik,
No. 3:08-CV-00353-RCJ-VPC, 2009 WL 3763041, at *4 (D. Nev. Nov. 5, 2009), aff’d, 637 F.
App’x 285 (9th Cir. 2015) (holding that “defendants’ alleged actions of maintaining and operating
the [Nevada State Prison] telephone system [are not] fairly attributable to the state so as to subject
these private party defendants to the constraints of federal suit under § 1983.”); Breland v. Evercom
Sys., Inc., No. 7:09-CV-60-HL, 2009 WL 1490488, at *1 (M.D. Ga. May 27, 2009) (“Plaintiff
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does not allege that Evercom’s relationship with the Colquitt County Jail goes any farther than the
provision of telephone service. Thus, plaintiff’s complaint fails to satisfy the under ‘color of state
law’ element.”); but see Washington v. Reliance Tel. Sys., No. 1:19-CV-124, 2019 WL 5580954,
at *3 (D.N.D. Oct. 29, 2019) (declining to conclude that a telephone services provider was not a
state actor when “the focus of [plaintiff’s] claim is largely on the alleged monitoring of telephone
calls with counsel.” (citation omitted)); Walen v. Embarq Payphone Servs. Inc., No. 06-14201,
2009 WL 3012351, at *3 (E.D. Mich. Sept. 17, 2009) (holding that Embarq Payphone Services
Inc. was a state actor because it was a joint participant with the state when monitoring and
recording prisoner communications, and Embarq “provided the system that determined which
communications were monitored.”)).
Plaintiff has not alleged that his communications were with an attorney or otherwise
privileged. Plaintiff alleges that Turnkey put the kiosks in the jail and has no power or authority
to act independently of the RCCF. 	He does not indicate whether Turnkey actually does the
monitoring or censoring of his communications, or if it merely supplies the telephone service or
kiosk equipment. See Bomer v. Access Catalog Co., 75 F. App’x 382, 383 (6th Cir. 2003) (holding
that vendor that provided televisions and cassette players was not a state actor); Roberts v. Jack L.
Marcus Co., 2021 WL 2828379, at *1 (E.D. Wisc. 2021) (“Selling electronics to prisoners is not
‘a traditional, public function,’ so the mere fact that the vendor may have a contract with the
institution is insufficient to transform it into a state actor.”).
Plaintiff has failed to specify who is monitoring or censoring his communications. 	An
essential element of a civil rights claim against an individual is that person’s direct personal
participation in the acts or inactions upon which the complaint is based. Kentucky v. Graham, 473
U.S. 159, 165–66 (1985); Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011) (“But § 1983
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imposes 	liability 	for 	a 	defendant’s 	own 	actions—personal 	participation 	in 	the 	specific
constitutional violation complained of is essential.”) (citing Foote v. Spiegel, 118 F.3d 1416, 1423–
24 (10th Cir. 1997) (“Individual liability under § 1983 must be based on personal involvement in
the alleged constitutional violation.”) (citation omitted)); Trujillo v. Williams, 465 F.3d 1210, 1228
(10th Cir. 2006) (“In order for liability to arise under § 1983, a defendant’s direct personal
responsibility for the claimed deprivation . . . must be established.”) (emphasis added) (citation
omitted)). Conclusory allegations of involvement are not sufficient. See Ashcroft v. Iqbal, 556
U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff
must plead that each Government-official defendant, through the official’s own individual actions,
has violated the Constitution.”). 	As a result, a plaintiff is required to name each defendant not
only in the caption of the complaint, but again in the body of the complaint and to include in the
body a description of the acts taken by each defendant that violated plaintiff’s federal constitutional
rights.
Mere supervisory status is insufficient to create personal liability. Duffield v. Jackson, 545
F.3d 1234, 1239 (10th Cir. 2008) (supervisor status is not sufficient to create § 1983 liability). An
official’s liability may not be predicated solely upon a theory of respondeat superior. 	Rizzo v.
Goode, 423 U.S. 362, 371 (1976); Gagan v. Norton, 35 F.3d 1473, 1476 FN4 (10th Cir. 1994),
cert. denied, 513 U.S. 1183 (1995). A plaintiff alleging supervisory liability 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,
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including the state of mind required to establish a violation of that provision.” Id. at 1204 (citing
Iqbal, 129 S. Ct. at 1949).
In the Tenth Circuit, “to hold a corporation liable under § 1983 for employee misconduct,
a plaintiff must demonstrate the existence of the same sort of custom or policy that permits
imposition of liability against municipalities under Monell v. Department of Social Services, 436
U.S. 658, 694 . . . (1978).” 	Wishneski v. Andrade, 572 F. App’x 563, 567 (10th Cir. 2014)
(unpublished) (citations omitted). 	A corporation may not be held liable based upon respondeat
superior because “vicarious liability is inapplicable to . . . § 1983 suits.” Rascón v. Douglas, 718
F. App’x 587, 589–90 (10th Cir. 2017) (unpublished) (quoting Iqbal, 556 U.S. at 676); see also
Spurlock v. Townes, 661 F. App’x 536, 545 (10th Cir. 2016) (unpublished); Green v. Denning, 465
F. App’x 804, 806 (10th Cir. 2012) (unpublished) (“An entity ‘cannot be held liable solely because
it employs a tortfeasor—or, in other words, [it] cannot be held liable under § 1983 on a respondeat
superior theory.’”) (citation omitted); Williams v. Correct Care Sols., No. 19-3075-SAC, 2019 WL
2005920, at *2 (D. Kan. May 7, 2019); Jefferson v. Aramark Corr. Servs., Case No. 17-3161-SAC,
2017 WL 6557419, at *2 (D. Kan. Dec. 22, 2017); Livingston v. Correct Care Sols., Case No. 07-
3256-SAC, 2008 WL 1808340, at *1–2 (D. Kan. Apr. 17, 2008) (stating that “[a] policy is a formal
statement by the private corporation” and “[a] custom is a persistent, well-settled practice of
unconstitutional misconduct by employees that is known and approved by the corporation.”).
3. Request for Relief
Plaintiff asks the Court to allow him to communicate with his family and loved ones
“without being censored per [his] right to freedom of speech.” (Doc. 1, at 5.) 	Prospective relief
with respect to prison conditions “shall extend no further than necessary to correct the violation of
the Federal right of a particular plaintiff” and “[t]he court shall not grant or approve any
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prospective relief unless the court finds that such relief is narrowly drawn, extends no further than
necessary to correct the violation of the Federal right, and is the least intrusive means necessary to
correct the violation of the Federal right.” 	18 U.S.C. § 3626(a)(1). 	“The court shall give
substantial weight to any adverse impact on public safety or the operation of a criminal justice
system caused by the relief.” Id. A federal court considering a request for preliminary injunctive
relief affecting the conditions of a prisoner’s confinement must give “substantial weight to any
adverse impact on public safety” and on prison operation. Id. at § 3626(a)(2). An order allowing
Plaintiff to communicate without any oversight is just the type of relief § 3626(a)(2) cautions
against.
4. Objection to Initial Partial Filing Fee
Plaintiff has filed an Objection to Document Number 3 (Doc. 4), objecting to the Court’s
assessment of an initial partial filing fee. Plaintiff states that because he is incarcerated, it should
go without saying that he is indigent. (Doc. 4, at 1.) Plaintiff argues that the Court granted him
leave to proceed in forma pauperis, so the Court must believe that he has no income. Id.
The Court granted Plaintiff leave to proceed in forma pauperis, which means that Plaintiff
was not required to prepay the entire filing fee. He still must make installment payments according
to statute until his filing fee is paid in full. See 28 U.S.C. § 1915(b)(1) and (2). The statute also
provides for the assessment of an initial partial filing fee. The Court must assess an initial partial
filing fee of 20 percent of the greater of—“(A) the average monthly deposits to the prisoner’s
account; or (B) the average monthly balance in the prisoner’s account for the 6-month period
immediately preceding the filing of the complaint or notice of appeal.” Id. at (b)(1). Whether a
person is in custody or whether or not they have income from a job, is not determinative. 	All
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deposits on the prisoner’s account are considered. 	However, the Court will consider Plaintiff’s
objection as a motion to waive the initial partial filing fee and will grant the motion.
IV. Response and/or Amended Complaint Required
Plaintiff is required to show good cause why Plaintiff’s claims should not be dismissed for
the reasons stated herein. 	Plaintiff is also given the opportunity to file a complete and proper
amended complaint upon court-approved forms that cures all the deficiencies discussed herein. To
add claims, significant factual allegations, or change defendants, a plaintiff must submit a complete
amended complaint. See Fed. R. Civ. P. 15. An amended complaint is not simply an addendum
to the original complaint, and instead completely supersedes it. 	Therefore, any claims or
allegations not included in the amended complaint are no longer before the court. It follows that
a plaintiff may not simply refer to an earlier pleading, and the amended complaint must contain all
allegations and claims that a plaintiff intends to pursue in the action, including those to be retained
from the original complaint.
Plaintiff must write the number of this case (25-3235-JWL) at the top of the first page of
the amended complaint and must name every defendant in the caption of the amended complaint.
See Fed. R. Civ. P. 10(a). Plaintiff should also refer to each defendant again in the body of the
amended complaint, where Plaintiff must allege facts describing the unconstitutional acts taken by
each defendant including dates, locations, and circumstances. 	Plaintiff must allege sufficient
additional facts to show a federal constitutional violation. Plaintiff is given time to file a complete
and proper amended complaint in which Plaintiff (1) raises only properly joined claims and
defendants; (2) alleges sufficient facts to state a claim for a federal constitutional violation and
show a cause of action in federal court; and (3) alleges sufficient facts to show personal
participation by each named defendant. If Plaintiff does not file an amended complaint within the
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prescribed time that cures all the deficiencies discussed herein, Plaintiff’s claims may be dismissed
without further notice.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Objection (Doc. 4)
is granted to the extent that the Court will waive Plaintiff’s initial partial filing fee.
IT IS FURTHER ORDERED that Plaintiff is granted until December 19, 2025, in which
to show good cause, in writing to the undersigned, why Plaintiff’s Complaint should not be
dismissed for the reasons stated herein.
IT IS FURTHER ORDERED that Plaintiff is also granted until December 19, 2025, in
which to file a complete and proper amended complaint to cure all the deficiencies discussed
herein.
The Clerk is directed to send § 1983 forms and instructions to Plaintiff.
IT IS SO ORDERED.
Dated November 19, 2025, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE
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