Patterson v. Montagne et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PATRIC GARY PATTERSON,
Plaintiff,
v. CASE NO. 26-3096-JWL
JEFF MONTAGNE, et al.,
Defendants.
MEMORANDUM AND ORDER
TO SHOW CAUSE
Plaintiff Patric Gary Patterson is hereby required to show good cause, in writing to the
undersigned, why this matter 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 case under 42 U.S.C. § 1983. Plaintiff is in custody
at the McPherson County Jail in McPherson, Kansas (“MCJ”). Plaintiff has been granted leave to
proceed in forma pauperis.
As Count I, Plaintiff alleges that he has been denied adequate mental health care at the
MCJ. (Doc. 1, at 3.) He alleges that there is a nurse who only works two days a week, and she
“just prescribes random meds.” Id. Plaintiff states that he attempted to kill himself with pills. Id.
He asked to be transferred to Larned Correctional Mental Health Facility but was told it is his
attorney’s responsibility. Id.
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As Count II, Plaintiff alleges that there is a “hostile environment” at the MCJ. He states
that Melissa Schamp called him a “fucking retard” and told him he has no rights. Id. at 2. He
further states that Captain Blevins sent Officer Leiker to antagonize him and “poke at [him]”
several times, then locked Plaintiff down when he responded. Id. at 3.
As Count III, Plaintiff alleges that he was denied the right to call his attorney two days in
a row. Id. at 4.
Plaintiff names Sheriff Jeff Montagne and Captain Arlo Blevins as defendants. For relief,
Plaintiff seeks $10,000 for his mental anguish and the firing of Melissa Schamp, Caden Burris,
Jason Leiker, and Defendant Blevins. Id. at 5.
II. Statutory Screening of Prisoner Complaints
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).
“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)
(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). In addition, the court accepts
all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th
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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.
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
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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
A. Personal Participation
Plaintiff must show how each named defendant personally participated in the deprivation
of his constitutional rights. Plaintiff cannot rely on the supervisory status of a defendant. 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
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
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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.
Plaintiff fails to describe any actions taken by Defendant Montagne that allegedly violated
his constitutional rights and includes only a brief mention of Defendant Blevins. Therefore,
Plaintiff’s claims against these defendants are subject to dismissal. In addition, Plaintiff mentions
several other LCJ officials who are not listed as defendants. If he chooses to submit an amended
complaint, he may wish to add them as defendants.
B. Counts I and II - Eighth Amendment
A prison official violates the Eighth Amendment when two requirements are met.1 Farmer
v. Brennan, 511 U.S. 825, 834 (1994). “First, the deprivation alleged must be, objectively,
‘sufficiently serious.’” Id. 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.” Id.;
Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir. 2005).
The Eighth Amendment requires prison and jail officials to provide humane conditions of
confinement guided by “contemporary standards of decency.” Estelle v. Gamble, 429 U.S. 97,
103 (1976). The Supreme Court has acknowledged that the Constitution “‘does not mandate
comfortable prisons,’ and only those deprivations denying ‘the minimal civilized measure of life’s
necessities’ are sufficiently grave to form the basis of an Eighth Amendment violation.” Wilson
v. Seiter, 501 U.S. 294, 298 (1991) (internal citations omitted). Indeed, prison conditions may be
1 It appears that Plaintiff may be a pretrial detainee. The Tenth Circuit has held that a pretrial detainee’s claims
regarding conditions of confinement are governed by the Due Process Clause, and that “the Eighth Amendment
standard provides the benchmark for such claims.” Routt v. Howard, 764 F. App’x 762, 770 (10th Cir. 2019)
(unpublished) (quoting Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998)); see also Hooks v. Atoki, 983 F.3d 1193,
1203–04 (10th Cir. 2020) (declining to extend Kingsley’s exclusively objective standard for pretrial detainees’
excessive force claims to Fourteenth Amendment deliberate indifference claims).
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“restrictive and even harsh.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). “Under the Eighth
Amendment, (prison) officials must provide humane conditions of confinement by ensuring
inmates receive the basic necessities of adequate food, clothing, shelter, and medical care and by
taking reasonable measures to guarantee the inmates’ safety.” McBride v. Deer, 240 F.3d 1287,
1291 (10th Cir. 2001) (citation omitted).
The second requirement for an Eighth Amendment violation “follows from the principle
that ‘only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.’”
Farmer, 511 U.S. at 834. Prison officials must have a “sufficiently culpable state of mind,” and
in prison-conditions cases that state of mind is “deliberate indifference” to inmate health or safety.
Id. “[T]he official 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.” Id. at 837. “The
Eighth Amendment does not outlaw cruel and unusual ‘conditions’; it outlaws cruel and unusual
‘punishments.’” Id. It is not enough to establish that the official should have known of the risk of
harm. Id.
Because the sufficiency of a conditions-of-confinement claim depends upon “the particular
facts of each situation; the ‘circumstances, nature, and duration’ of the challenged conditions must
be carefully considered.” Despain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001) (quoting Johnson
v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000)). “While no single factor controls . . . the length of
exposure to the conditions is often of prime importance.” Id. As the severity of the conditions to
which an inmate is exposed increases, the length of exposure required to make out a constitutional
violation decreases. Accordingly, “minor deprivations suffered for short periods would not rise to
an Eighth Amendment violation, while ‘substantial deprivations. . .’ may meet the standard despite
a shorter duration.” Id. (citations omitted).
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While a prison official's deliberate indifference to a serious medical need violates a
prisoner's or pretrial detainee's constitutional rights, Plaintiff's bare and broad allegation that he
needed more or different mental health care and attempted to kill himself fails to state a cognizable
constitutional claim. Plaintiff does not describe or document the extent of his mental health needs,
nor does he detail his attempts to seek care and his suicide attempt. Accordingly, Plaintiff's
allegations fail to provide a factual basis for objectively finding he suffered from an obvious
medical condition that necessarily required greater medical attention, or for subjectively finding
that any defendant was deliberately indifferent to a risk of substantial harm to Plaintiff if additional
or different medical attention was not provided. See Perkins v. Kansas Dept. of Corrections, 165
F.3d 803, 809 (10th Cir. 1999) (deliberate indifference standard has two components that must be
demonstrated; stating standards for showing both a “serious medical need” and “deliberate
indifference”) (citing Wilson v. Seiter, 501 U.S. 294, 298–99 (1991)).
The Court thus grants Plaintiff an opportunity to file an amended complaint to present a
plausible claim that could satisfy these two requirements to avoid summary dismissal of Count I
as stating no claim for relief under 42 U.S.C. § 1983.
Plaintiff also alleges in Count II that staff members at the LCJ called him names and
antagonized him. No matter how inappropriate, verbal harassment and threats do not generally
state a constitutional claim. See McBride v. Deer, 240 F.3d 1287, 1291 n.3 (10th Cir. 2001)
(“[A]cts or omissions resulting in an inmate being subjected to nothing more than threats and
verbal taunts do not violate the Eighth Amendment.”); Northington v. Jackson, 973 F.2d 1518,
1524 (10th Cir. 1992) (“necessarily excluded from the cruel and unusual punishment inquiry” are
“verbal threats and harassment”). The Tenth Circuit has found that “[m]ere verbal threats or
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harassment do not rise to the level of a constitutional violation unless they create ‘terror of instant
and unexpected death.’” Alvarez v. Gonzales, 155 F. App’x 393, 396 (10th Cir. 2005)
(unpublished) (quoting Northington v. Jackson, 973 F.2d 1518, 1524 (10th Cir. 1992)).
Plaintiff should show good cause why his Eighth Amendment claims should not be
dismissed for failure to state a claim.
C. Count III – Right to Counsel
The Sixth Amendment guarantees an accused the right to counsel “in order to secure the
fundamental right to a fair trial guaranteed by the Due Process Clause of the Fourteenth
Amendment.” Shillinger v. Haworth, 70 F.3d 1132, 1141 (10th Cir. 1995) (citing Strickland v.
Washington, 466 U.S. 668, 684–85 (1984)). “When the government deliberately interferes with
the confidential relationship between a criminal defendant and defense counsel, that interference
violates the Sixth Amendment right to counsel if it substantially prejudices the criminal
defendant.” Williams v. Woodford, 384 F.3d 567, 584–85 (9th Cir. 2002) (citing Weatherford v.
Bursey, 429 U.S. 545, 557–58 (1977)); see also Stanley v. Vining, 602 F.3d 767, 770 (6th Cir.
2010) (“[i]n order to state a § 1983 cognizable claim for deprivation of right to counsel, there must
be some allegation indicating an interference with the prisoner's relationship with counsel”).
Plaintiff alleges that he was denied access to a telephone to call his attorney on two
occasions. Plaintiff must allege sufficient facts to state a plausible claim that he suffered prejudice
as a result of such conduct. Prejudice is not shown unless the alleged interference created “at least
a realistic possibility of injury to [the criminal defendant] or benefit to the State.” Weatherford,
429 U.S. at 558. Because Plaintiff has not alleged any prejudice resulting from the denied phone
calls, his claim in Count III is subject to dismissal.
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D. Requested Relief
1. Compensatory Damages
Plaintiff’s request for compensatory damages is barred by 42 U.S.C. § 1997e(e), because
Plaintiff has failed to allege a physical injury. Section 1997e(e) provides that “[n]o Federal civil
action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for
mental or emotional injury suffered while in custody without a prior showing of physical injury or
the commission of a sexual act (as defined in section 2246 of Title 18).” 42 U.S.C. § 1997e(e).
“The plain language of the statute does not permit alteration of its clear damages
restrictions on the basis of the underlying rights being asserted.” Searles v. Van Bebber, 251 F.3d
869, 876 (10th Cir. 2001). “The statute limits the remedies available, regardless of the rights
asserted, if the only injuries are mental or emotional.” Id. (citing Robinson v. Page, 170 F.3d 747,
748 (7th Cir.1999)).
2. Firing of Defendants
Plaintiff asks that Schamp, Burris, Leiker, and Blevins be “relieved of their duties.” (Doc.
1, at 6.) The Court is without authority to grant such relief. See Nicholas v. Hunter, 228 F. App’x
139, 141 (3rd Cir. 2007) (“The remaining relief requested is not available as the District Court
lacks authority to order a federal investigation and prosecution of the defendants or the termination
of their employment.”); Goulette v. Warren, No. 3:06CV235-1-MU, 2006 WL 1582386, at n.1
(W.D. N.C. June 1, 2006) (“The Court notes that even if Plaintiff’s claims prevailed in this case,
this Court would not, based upon this law suit, have the authority to order the termination of the
Defendant’s employment or to grant Plaintiff an immediate, early release from jail.”); Dockery v.
Ferry, No. 08-277, 2008 WL 1995061, at *2 (W.D. Pa. May 7, 2008) (finding that the court cannot
issue an order which would direct a local government to terminate a police officer’s employment)
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(citing In re Jones, 28 F. App’x 133, 134 (3rd Cir. 2002) (“Jones is not entitled to relief . . . [S]he
asks this Court to prohibit the State of Delaware from filing charges against her. The federal
courts, however, have no general power in mandamus action to compel action, or in this case
inaction, by state officials.”)); Martin v. LeBlanc, No. 14-2743, 2014 WL 6674289, at n.1 (W.D.
La. Nov. 24, 2014) (finding that where plaintiff requested an investigation, the termination of the
defendants’ employment and the closure of the prison, “[s]uch relief is not available in this
action”); Merrida v. California Dep’t of Corr., No. 1:06-CV-00502 OWW LJO P, 2006 WL
2926740, at n.1 (E.D. Cal. Oct. 11, 2006) (finding that where plaintiff seeks the termination of
defendant’s employment, “the court cannot award this form of relief to plaintiff”) (citing 18 U.S.C.
§ 3626(a)(1)(A)).
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 (26-3096-JWL) at the top of the first page of
the amended complaint and must name every defendant in the caption of the amended complaint.
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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
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 is granted until June
5, 2026, 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 June 5, 2026, 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 May 6, 2026, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE
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