992 F.2d 286
Scott William SWOBODA,
Plaintiff-Appellant,
v.
Jerry K. DUBACH; Steven J. Davies; Raymond Roberts; Dana Foley;
Fred Cluck; Raymond Gaul; Tom Keyes; Roberta A. Dubach; Edna Fay Reder; Pam
Remmers; Rhonda (Dubach) Miller; Joi Trant; Tina McNemee; Mary Turner; Lisa
Baurman; Jodi Cook; James Rush; Robert Root; Robert Meyers; Doniphan County,
Kansas Board of Commissioners, Defendants-Appellees.
No. 92-3156.
United States Court of
Appeals,
Tenth Circuit.
May 4, 1993.
Inmate,
proceeding pro se, brought civil rights action against sheriff and other
officials, alleging violation of various constitutional rights in connection
with his arrest and subsequent confinement in county jail. The United States
District Court for the District of Kansas, Dale E. Saffels, J., dismissed.
Inmate appealed. The Court of Appeals, David L. Russell, District Judge,
sitting by designation, held that: (1) inmate's notice of appeal was timely
where it was given to prison authorities on day it was due in court; (2) inmate's
pro se claims regarding conditions at county jail failed to state claim either
because allegations were conclusory or because inmate lacked standing to bring
them, but (3) arrestee's allegations that sheriff assaulted, beat and
disfigured him during arrest were sufficient, liberally construed, to state
excessive force claim under § 1983
Affirmed
in part, reversed in part and remanded; motion to proceed without prepayment of
costs or fees granted; outstanding motions denied.
1. Federal Courts
667
Exception
to rule that pro se prisoner's notice of appeal is "filed" with court
when prisoner gives it to prison authorities for mailing in case of prisoner
placing notice of appeal in regular, as opposed to legal, prison mail system
did not apply where there was only one mail system.
2. Federal Courts
668
Pro
se inmate's notice of appeal was timely where it was given to prison
authorities on day it was due in court; court would not second-guess whether
inmate, if not incarcerated, would have mailed notice of appeal or made other
efforts to ensure that it was filed timely.
3. Civil Rights
235(7)
Inmate's
pleading in civil rights action would be interpreted liberally, as he filed
complaint pro se and continued pro se on appeal.
4. Civil Rights
202, 235(7)
Inmate's
pro se claims regarding conditions at county jail failed to state claim either
because allegations were conclusory or because inmate lacked standing to bring
them; inmate stated no specific facts connecting allegedly unconstitutional
conditions with his own experiences or indicating how conditions caused him
injury, and he lacked standing to bring claims on behalf on others.
5. Federal Courts
612
Court
of Appeals would not address issue of whether pro se inmate had been de-
287
nied
access to legal resources at correctional facility, particularly as neither
facility nor any of its employees were parties to suit, and district court had
not considered allegation.
6. Constitutional Law
84.5(14)
Prisons
4(14)
Sole
specific fact alleged by pro se inmate in connection with his own exercise of
religious freedom, that defendants refused to provide minister of his faith,
could not alone support claim that inmate's right to freedom of religion was
denied, so as to state claim under § 1983. U.S.C.A. Const.Amend. 1; 42 U.S.C.A.
§ 1983.
7. Civil Rights
135
Pro
se inmate's claim that defendants violated various state laws during his
incarceration at county jail did not present claim of constitutional dimension
supporting cause of action under § 1983. 42 U.S.C.A. § 1983.
8. Civil Rights
235(7)
Pro
se inmate's § 1983 complaint claiming that defendants failed to inspect or
report his complaints of conditions at county jail failed for lack of
causation, as he did not state that lack of inspection caused or contributed to
any injury or violation of his constitutional rights. 42 U.S.C.A. § 1983.
9. Conspiracy
18
Pro
se inmate's civil rights claims of conspiracy failed absent allegation of
specific facts in support.
10. Civil Rights
135
Pro
se inmate's allegations that arresting officer and other threatened to kill him
and continued to do so failed by themselves to state constitutional claim
cognizable under § 1983. 42 U.S.C.A. § 1983.
11. Civil Rights
235(6)
Arrestee's
pro se allegations that sheriff assaulted, beat and disfigured him during
arrest were sufficient, liberally construed, to state excessive force claim
under § 1983, despite sheriffs version of facts conveyed through affidavits and
amended answer. U.S.C.A. Const.Amend. 4; 42 U.S.C.A. § 1983; Fed.Rules
Civ.Proc.Rule 12(b)(6), 28 U.S.C.A.
12. Federal Civil Procedure
1832
In
determining whether plaintiff has stated claim, district court may not look to
Martinez report, or any other pleading outside complaint itself, to refute
facts specifically plead by plaintiff, or to resolve factual disputes.
Fed.Rules Civ.Proc.Rule 12(b)(6). 28 U.S.C.A.
13. Arrest
68(2)
Excessive force during arrest
violates person's Fourth Amendment right against unreasonable searches and
seizures. U.S.C.A. Const.Amend. 4.
14. Federal Courts
762
Court
of Appeals can affirm for reasons other than those relied on by district court,
as long as those reasons find support in record.
Scott
William Swoboda, pro se.
Donald
Patterson, Fisher, Patterson, Sayler & Smith, Topeka, KS, for
defendants-appellees Jerry K. Dubach, Edna Fay Reder, Pam Remmers, Roberta A.
Dubach, Rhonda (Dubach) Miller, Joi Trant, Tina McNemee, Mary Turner, Lisa
Baurman, Jodi Cook, James Rush, Robert Root, and Doniphan County, KS Bd. of
Com'rs, Dana Foley, Fred Cluck, and Raymond Gaul.
Robert T. Stephan, Atty. Gen., and Terry D. Hamblin, Asst.
Atty. Gen., Office of Atty. Gen., Topeka, KS, for defendants-appellees Steven
J. Davies, Raymond Roberts, Tom Keyes, and Robert Meyers.
Before
SEYMOUR and ANDERSON, Circuit Judges, and RUSSELL,* District Judge.
DAVID
L. RUSSELL, District Judge.
After
examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9.
* Honorable David L.
Russell, District Judge, United States District Court for the Western District
of Oklahoma, sitting by designation.
288
The
case is therefore ordered submitted without oral argument.
Plaintiff-appellant
Scott William Swoboda, proceeding pro se, brought this civil rights action
pursuant to 42 U.S.C. § 1983, alleging violation of various constitutional
rights in connection with his arrest and subsequent confinement in the Doniphan
County, Kansas jail. In the underlying state criminal case, Swoboda pled guilty
to the felony offense of terroristic threat and to several misdemeanors,
including obstructing official duty, disorderly conduct, and two charges of
battery against a law enforcement officer. These offenses were based on
Swoboda's conduct during his arrest and subsequent booking.
In
his civil rights complaint against defendants, Swoboda alleged that 1)
defendant Dubach used excessive force in his arrest of Swoboda; 2) defendant
Dubach, in concert with others, has and continues to threaten to kill Swoboda;
3) defendants subjected Swoboda to numerous unconstitutional conditions during
his confinement in Doniphan County jail; 4) defendants failed to inspect or
report on the allegedly unconstitutional conditions at Doniphan County jail; 5)
defendants Foley, Cluck, and Gaul, as County Commissioners of Doniphan County,
failed to supervise and train the other county defendants, resulting in a
violation of Swoboda's constitutional rights, and failed to protect Swoboda
from Defendant Dubach; 6) defendants conspired and acted to intimidate Swoboda
and to violate his constitutional rights; and 7) defendants violated state law
in connection with Swoboda's confinement.1
Swoboda also alleged various state law claims. He sought declaratory and
injunctive relief, and damages.2
The district court ordered a review of the complaint and
written report pursuant to Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978)
(the Martinez report). The Martinez report was filed and Swoboda filed his
objections. Defendants filed motions to dismiss or, in the alternative, for
summary judgment, and Swoboda responded. The district court, in an order dated
March 30, 1992, dismissed the case pursuant to Fed.R.Civ.P. 12(b)(6), concluding
that Swoboda's allegations failed to state a cause of action under § 1983. 788
F.Supp. 519. Swoboda filed a notice of appeal. The district court denied his
application to proceed without prepayment of costsor fees; he reurges that
motion before this court.
This
court noted a possible jurisdictional defect because Swoboda's notice of appeal
was received one day after the thirty-day appeal period following the filing of
the district court's judgment. We asked the parties to brief the issue in light
of this court's opinion in United States v. Leonard 937 F.2d 494 (10th
Cir.1991), distinguishing Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101
L.Ed.2d 245 (1988). In Houston, the Supreme Court held that a pro se prisoner's
notice of appeal was filed with the court when the prisoner gave it to prison
authorities for mailing. 487 U.S. at 276, 108 S.Ct. at 2385. This court
declined to apply Haustun where a prisoner placed his notice of appeal in the
regular, as opposed to the legal, prison mail system. Leonard, 937 F.2d at 495.
[1, 2] Here,
defendants concede that "there was only [one mail] system and that was the
system used." County Defendant' Jurisdictional Brief at 7. Therefore, the
Leonard exception to Houston does not apply. Nonetheless, Defendants contend
that Houston should not apply here either because the prison mail records
indicate that Swoboda gave his notice of appeal to prison authorities on the
day it was due in court. Defendants state: "No delay on the part of prison
authorities here constituted the cause of a failure of petitioner to get his
notice of appeal to the Clerk of the District Court within the time limit that
defines the jurisdiction of this court." Id. at 8. Essentially they argue
that the reasoning of Houston, that incarceration should not adversely affect a
pro se prisoner's ability to get his notice of appeal to a court on time, 487
U.S. at 270-72, 108 S.Ct. at 2382-83, does not apply here.
1. Swoboda moved to
dismiss the action against Defendant Reder.
2. The district court dismissed
Swoboda's claums for injunctive relief as moot. We agree, and Swoboda does not
challenge that ruling or appeal.
289
See
also Leonard, 937 F.2d at 495 ("With the advantage of the special filing
requirements established in Houston, [] a pro se prisoner arguably is in a
better position than non-incarcerated individuals with respect to the filing
requirements of Rule 4.").
We
hold that Swoboda's notice of appeal was timely. We decline to second-guess
whether Swoboda, if not incarcerated, would have mailed his notice of appeal or
made other efforts to insure that it was filed timely. We follow the Supreme
Court's clear and straightforward ruling in Houston, that a pro se prisoner's
notice of appeal is filed with the court "at the time petitioner delivered
it to the prison authorities." 487 U.S. at 276, 108 S.Ct. at 2385; see
Hamm v. Moore, 984 F.2d 890, 892 (8th Cir.1992) (finding jurisdiction where
notice of appeal in § 1983 suit given to prison officials on due date); see
also Houston, 487 U.S. at 275, 108 S.Ct. at 2385 (characterizing holding as
"bright-line rule"); Leonard, 937 F.2d at 495 (same). Additionally,
we grant Swoboda's motion to proceed without prepayment of costs or fees.
[3]
Moving to the merits of the appeal, [w]e review de novo a district court's
ruling on a motion to dismiss for failure to state a claim upon which relief
can be granted. Allegations in the plaintiffs complaint are presumed true. The
complaint will not be dismissed unless it appears that the plaintiff cannot
prove facts entitling him to relief.
Miller
v. Glanz, 948 F.2d 1562, 1565 (10th Cir.1991) (citations omitted).
Additionally, because Swoboda filed his complaint pro se, and continues pro se
on appeal, we interpret his pleadings liberally, as required by Haines v.
Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972). See
Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir.1992).
Applying
these standards, we hold that many of Swoboda's allegations fail to state a
complaint cognizable in federal court under § 1983, and we affirm the district
court's order as to those claims. However, the district court went beyond the
applicable legal standards in dismissing Swoboda's excessive force claim. For
the reasons stated below, we reverse on that claim, and remand for further
proceedings.
[4, 5] We agree with
the district court that the claims regarding conditions at Doniphan County jail
must fail. Swoboda's complaint contains a myriad of allegations, which can be
summarized into the following claims: a) conditions, restrictions, and
constraints placed on pretrial detainees amounted to punishment, b) pretrial
detainees were limited in their preparation of a legal defense by their
inability to post bail, c) oppressive jail conditions limited inmates' ability
to prepare or assist in their legal defense, d) restrictions placed on inmates'
communications and access to law books amounted to a denial of access to the
courts and counsel, e) conditions at the jail constituted cruel and unusual
punishment, f) inmates received inadequate medical care, g) lack of access to
exercise and recreation, h) lack of access to reading materials, i) inadequate
diet at the jail, j) the jail's housing conditions, heating, ventilation and
cooling, fire alarm, plumbing, and lighting systems, were inadequate and posed
health threats to inmates, k) failure to provide regular bathing, cleaning, and
laundry services, l) denial of the right to vote, m) denial of the right to
exercise religious freedom, n) failure to train and staff the jail to insure
inmates' safety, and o) failure to protect inmates' privacy.3
The majority of these claims fail either because Swoboda's
allegations are conclusory or because he lacks standing to bring them. Many of
Swoboda's contentions about the conditions at Doniphan County jail are simply
general observations or complaints or behalf of other prisoners. He stated no
specific facts connecting the allegedly unconstitutional conditions with his
own experiences at Doniphan, or indicating how the conditions caused him
injury. Without such facts, these claims are little more than conclusory
allegations, which are insufficient to state a claim
3. In his reply brief on
appeal, Swoboda contends that he has been denied access to legal resources at
El Dorado Correctional Facility. We decline to address this issue. Neither El
Dorado nor any of its employees are parties to this lawsuit, and the district
court obviously has not considered this allegation. See Gillihan v. Shillinger,
872 F.2d 935, 938 (10th Cir.1989).
290
for
relief. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). Additionally,
Swoboda lacks standing to bring claims on behalf of others. See Reynoldson v.
Shillinger, 907 F.2d 124, 125 (10th Cir.1990).
[6, 7] As to the
remaining claims regarding conditions, where Swoboda did allege more specific
facts, none of them rise to the level of a constitutional deprivation such that
they state a claim under 42 U.S.C. § 1983. See Shaw v. Neece, 727 F.2d 947, 949
(10th Cir.), cert. denied, 466 U.S. 976, 104 S.Ct. 2358, 80 L.Ed.2d 830 (1984).
For example, Swoboda alleged that defendants violated his right to freedom of
religion. However, the only specific fact he alleged in connection with his own
exercise of religious freedom was that defendants refused to provide a minister
of his faith. This allegation alone cannot support the denial of Swoboda's
right to freedom of religion. See Dunn v. White, 880 F.2d 1188, 1197 (10th
Cir.1989), cert. denied, 493 U.S. 1059, 110 S.Ct. 871, 107 L.Ed.2d 954 (1990);
see also Cruz v. Beto, 405 U.S. 319, 322 n. 2, 92 S.Ct. 1079, 1082 n. 2, 31
L.Ed.2d 263 (1972) (noting that a prison chaplain, priest, or minister need not
be provided for every faith). Because Swoboda failed to state cognizable claims
regarding the conditions at Doniphan, his claims that defendants Foley, Cluck,
and Gaul failed to supervise and train and failed to protect Swoboda from those
conditions also fail. Additionally, Swoboda failed to make specific allegations
showing how these defendants' alleged failures affected him during his stay at
Doniphan. Similarly, Swoboda's claim that defendants violated various state
laws during his incarceration at Doniphan County jail does not present a claim
of constitutional dimension such that it supports a cause of action under §
1983. See Johnson v. Clinton, 763 F.2d 326, 327 (8th Cir.1985).
[8-10] Swoboda's
complaint contends that defendants failed to inspect or report his complaints
of the conditions at Doniphan County jail. However, he does not state how this
lack of inspection caused or contributed to any injury or violation of his
constitutional rights. Therefore, this claim fails for lack of causation. See
Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir.1991). Similarly, Swoboda's
claims of conspiracy fail because he did not allege specific facts in support
of these allegations. See Ruark v. Solano, 928 F.2d 947, 950 (10th Cir.1991);
Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir.1989). Finally, Swoboda's
allegations that Defendant Dubach and others threatened to kill him and
continue to do so fail by themselves to state a constitutional claim cognizable
under § 1983. See Hulsey v. Texas, 929 F.2d 168, 172 (5th Cir.1991) (stating
mere threat insufficient to demonstrate significant injury needed to sustain
excessive force claim).
[11] In addition to
dismissing the above claims, the district court also rejected Swoboda's
allegations that Defendant Duhach, at that time the sheriff of Doniphan County,
"assaulted, beat and disfigured" him during his arrest. Complaint at
2. The court's order states:
The court finds no merit to plaintiffs claim that
plaintiff, when arrested, was assaulted by the Sheriff and that excessive force
was used .... Given the affidavits provided by others present during the
arrest, and given the Sheriffs amended answer filed in that case, this court
accepts the Sheriffs explanation ... that the plaintiff was the individual
under the influence of alcohol or drugs when the arrest was made.
District
Court Order at 3.
[12] "The
court's function on a Rule 12(b)(6) motion is not to weigh potential evidence
that the parties might present at trial, but to assess whether the plaintiffs complaint alone is
legally sufficient to state a claim for which relief may be granted."
Miller, 948 F.2d at 1565 (emphasis added). In 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
pled by a plaintiff, or to resolve factual disputes. See Reed v. Dunham, 893
F.2d 285, 287 n. 2 (10th Cir.1990); Sampley v. Ruettgers, 704 F.2d 491, 493 n.
3 (10th Cir.1983).
[13] The court also
concluded, without explanation, that Swoboda's excessive force claim was not of
constitutional dimension. District Court Order at 3-4. Excessive force
291
during arrest violates a
person's Fourth Amendment right against unreasonable searches and seizure.
See Graham v. Connor, 490 U.S. 386, 394-95, 109 S.Ct. 1865, 1870-71, 104
L.Ed.2d 443 (1989); Austin v. Hamilton, 945 F.2d 1155, 1160 (10th Cir. 1991).
Our review of Swoboda's complaint indicates that he has alleged sufficient and
specific facts in support of his claim of excessive force. That claim is of constitutional dimension, and
properly brought under § 1983. Defendants' version of the facts
cannot be used to reject the claim at this juncture in the proceedings. We
express no opinion as to the merit or eventual disposition of Swoboda's
excessive force claim. We hold simply that his complaint, interpreted liberally,
states a claim for relief on that ground.
[14] Defendants
argue on appeal that this court can affirm for reasons other than those relied
on by the district court, as long as those reasons find support in the record.
We agree. See Bath v. National Assnn of Intercollegiate Athletics, 843 F.2d
1315, 1317 (10th Cir.1988). Defendants also contend that Swoboda received
notice and an opportunity to respond to their motions to dismiss or,
alternatively, for summary judgment. Cf Ketchum v. Cruz, 961 F.2d 916, 919
(10th Cir.1992) (plaintiff must receive notice and opportunity to submit
evidence where court converts motion to dismiss into motion for summary
judgment). Essentially, defendants seek a summary judgment ruling from this
court. We recognize that the parties moved for summary judgment in the
alternative, and that Swoboda apparently received notice of the motion and
responded. Nonetheless, we remand Swoboda's surviving claim to the district
court for its initial consideration of the remaining arguments in support of
defendants' various motions to dismiss,4
defendants' various arguments in support of summary judgment, including
qualified immunity, and what appear to be contested issues of fact surrounding
the excessive force claim. Additionally, the district court should reexamine
Swoboda's state law claims, and his motions for appointment of counsel. See
Miller, 948 F.2d at 1567-68, 1572.5
The judgment of the United States District Court for the
District of Kansas is AFFIRMED in part, REVERSED in part, and REMANDED for further
proceedings consistent with this order. Swoboda's motion to proceed without
prepayment of costs or fees is GRANTED; all outstanding motions are DENIED. The
mandate shall issue forthwith.
4. For example, certain
defendants moved to dismiss Swoboda's claims against them, contending that no
factual allegations connect them to Swoboda's complaints. We recognize that, in
affirming the district court's ruling on the majority of Swoboda's claims,
numerous other defendants will be able to assert this same defense to the
remaining claim.
5. The district court
dismissed these claims, concluding that, following its dismissal of Swoboda’s §
1983 claims, the court lacked an independent basis for federal jurisdiction
and, therefore, a basis to exercise pendent jurisdiction.