FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 7, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JEFFREY L. MCLEMORE,
Plaintiff - Appellant,
v.
No. 17-3129
BRENDA DARR; GARY FAY; AMBER (D.C. No. 5:15-CV-03202-JAR-DJW)
BLACK, (D. Kan.)
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
_________________________________
Plaintiff Jeffrey L. McLemore, a former inmate of the Saline County Jail (SCJ) in
Kansas, appeals the judgment entered against him by the United States District Court for
the District of Kansas on his claims against various jail personnel regarding his treatment
at the jail. He also appeals the denial of his motion to amend his complaint. We affirm.
Plaintiff’s appeal relates only to claims arising out of an attack on him by fellow
SCJ inmate David Summers on May 29, 2015. Because of a prior fight between the two
in April, a housing restriction limited their contact. On May 29, Plaintiff was moved to a
cell in Pod 2300, a maximum-security unit housing 12 inmates in individual cells.
*
This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Summers was housed in an adjacent cell; and, according to Plaintiff’s complaint, on the
day of the move SCJ staffer Amber Black heard Summers threaten Plaintiff and Plaintiff
told Black several times that he feared Summers.
The move did not violate the housing restrictions, however, because officers at
Pod 2300 are not supposed to let more than one Pod inmate out of his cell at any one
time. For example, when medications are distributed to Pod 2300 inmates, an SCJ officer
remotely unlocks the cell door for one inmate at a time so that he can get his medicine.
The officer who opens the cell monitors the inmate’s interaction with the SCJ nurse, then
returns to his desk, while the prisoner returns to his cell and closes his cell door. Once
the inmate’s cell door is closed (as indicated by a light on the desk), the officer unlocks
the next inmate’s door.
Summers’s attack on Plaintiff occurred during such medication distribution.
When Plaintiff left his cell to get his medication, the cell door locked behind him. As a
result, when he returned to his cell, the desk lights indicated that all the cell doors were
locked even though he was not secure in his cell. Staff member Gary Fay, who was
overseeing medicine distribution, unlocked the door to Summers’s cell. Summers then
attacked Plaintiff.
The Eighth Amendment may impose duties on prison officials to protect prisoners
from violence and to provide them medical care. “To establish a cognizable Eighth
Amendment claim for failure to protect an inmate from harm by other inmates, the
plaintiff must show that he is incarcerated under conditions posing a substantial risk of
serious harm . . . and that the prison official was deliberately indifferent to his safety
2
. . . .” Smith v. Cummings, 445 F.3d 1254, 1258 (10th Cir. 2006) (brackets and internal
quotation marks omitted). In this context, deliberate indifference means recklessness.
See id. Similarly, a claim for denial of medical care requires a “sufficiently serious”
medical need and deliberate indifference to that need. Estate of Booker v. Gomez, 745
F.3d 405, 430 (10th Cir. 2014) (internal quotation marks omitted). We address in turn
the rulings challenged by Plaintiff on appeal.
Plaintiff first contends that the district court improperly dismissed his supervisory-
liability claims against Brian Shea (a former captain at the Saline County Sheriff’s Office
(SCSO)), Brent Melander (a captain at SCJ), and Sheriff Glen Kochanowski. We review
de novo grants of dismissal based on a failure to state a claim. See Carney v. Okla. Dep’t
of Pub. Safety, 875 F.3d 1347, 1352 (10th Cir. 2017). To state a § 1983 claim against a
supervisor of one who allegedly violated a plaintiff’s constitutional rights, the plaintiff
“must show an affirmative link between [the supervisor] and [a] constitutional violation”;
this requires proof of “(1) personal involvement; (2) causation; and (3) [the requisite
culpable] state of mind.” Keith v. Koerner, 843 F.3d 833, 838 (10th Cir. 2016) (internal
quotation marks omitted). Plaintiff’s complaint does not satisfy these requirements. We
agree with the district court’s conclusion that “[P]laintiff does not allege personal
involvement or participation by defendants Shea, Melander and Kochanowski. He does
not allege that they oversaw, directed or controlled the alleged misconduct. He does not
allege that these defendants created or implemented a policy that caused the alleged
wrongful acts. Also, plaintiff does not allege that [they] acted or failed to act with a
culpable state of mind . . . .” Order at 11, McLemore v. Shea, Case No. 15-3202-SAC-
3
DJW (D. Kan. Feb. 23, 2016) (February 2016 Order). Dismissal of these claims was not
error.
Plaintiff’s second contention on appeal is that the district court erred in granting
summary judgment to Black, Fay, and Brenda Darr (an SCJ staff member who knew of
the prior fight between Plaintiff and Summers) on his claim under 42 U.S.C. § 1983 that
they had acted with deliberate indifference to the risk of housing him near Summers.
(The summary judgment was based largely on a Martinez report prepared by the
defendants. See Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir. 1978) (approving
district-court procedure of requiring prison officials named in civil-rights lawsuits to
investigate and report to court on relevant facts at outset of case).) First, relying on Kan.
St. Ann. § 75-6104, which is part of the Kansas Tort Claims Act, he claims that the
burden was on the defendants to establish their immunity from suit. But this state statute
has no bearing on Plaintiff’s claim under the federal civil-rights statute.
Plaintiff then argues that summary judgment was improper because of factual
disputes on two issues: (1) whether there were safer housing options for him than being
placed near Summers; and (2) whether Black, Darr, or Fay reasonably should have been
aware, given past fights in Pod 2300, that a substantial risk of serious harm to Plaintiff
existed as medicines were distributed on May 29, 2015. Because Plaintiff did not raise
the first issue below, he cannot press it now. See Carney, 875 F.3d at 1351. And in any
event, the Constitution does not require prisons to employ the safest possible methods.
On the second issue Plaintiff points to evidence suggesting that another SCJ inmate got
into a fight in Pod 2300 in June 2015, and to a declaration purportedly from that inmate
4
discussing that fight and stating that he was aware of “numerous fights.” But even if
there had been prior fights in Pod 2300, Plaintiff has provided no evidence that Fay’s
opening Summers’s cell door before Plaintiff got back in his cell was anything but
accidental. Such accidental conduct does not show deliberate indifference.
Plaintiff’s third contention is that the district court improperly dismissed his
denial-of-medical-treatment claim against David Wallace (a corporal at SCJ) and Beth
Komareck (an SCJ nurse). The district court did not actually dismiss the claim; what it
did was deny a motion to amend the complaint to add the claim. The court said that the
amendment would be futile. We review de novo a denial of a motion to amend on that
ground. See Barnes v. Harris, 783 F.3d 1185, 1197 (10th Cir. 2015).
The allegations purporting to support this claim are as follows: After the fight
with Summers, Plaintiff was tending his wounds—including setting his own broken
nose—when he encountered Wallace. Plaintiff told Wallace that he needed medical
treatment for his nose. Wallace told Plaintiff that he (Wallace) would inform Komareck
of Plaintiff’s request. Plaintiff saw Komareck less than an hour later and told her that he
needed help for his broken nose. Komareck responded that there was little she could do
for his nose if he had already set it. Plaintiff received no further treatment for his
injuries, which included “scratches, black eyes, bruises on [his] head and a contusion
behind [his] ear.” May 2016 Compl. at 6.
These allegations do not sustain a denial-of-treatment claim. Plaintiff fails to
explain what more Wallace should have done. He said he would tell Komareck that
Plaintiff wanted to see her, and she saw him within an hour. Also, Plaintiff does not
5
allege any harm from the delay or explain how Wallace’s response demonstrates
deliberate indifference. Likewise for Komareck, Plaintiff does not explain how
Komareck deprived him of treatment for a “sufficiently serious medical need.” Gee v.
Pacheco, 627 F.3d 1178, 1192 (10th Cir. 2010). After hearing that Plaintiff had set his
own broken nose, Komareck allegedly told him that there was nothing more she could do
for him. Plaintiff did not allege what more Komareck could have done or how he was
injured by the failure to do those things. Nor does he explain how Komareck’s response
evinced deliberate indifference to his medical condition. See id.
We AFFIRM the judgment of the district court, GRANT Plaintiff’s motion for
leave to proceed without prepayment of costs and fees, and DENY his motion to file a
supplemental brief concerning evidence irrelevant to the May 2015 incident.
Entered for the Court
Harris L Hartz
Circuit Judge
6
McLemore v. Saline County Sheriff's Office
Combined Opinion