Koetting v. Noble County Board of County Commissioners , 12 F. App'x 796 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 30 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
KENNETH R. KOETTING,
Plaintiff-Appellant,
v. No. 00-6146
(D.C. No. 98-CV-1730-M)
NOBLE COUNTY BOARD OF (W.D. Okla.)
COUNTY COMMISSIONERS;
JERRY COOK; NOBLE
COUNTY JAIL,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR , BALDOCK , and LUCERO , Circuit Judges.
Plaintiff Kenneth R. Koetting brought this action under 42 U.S.C. § 1983alleging a variety of types of unconstitutional treatment while he was a prisoner in
the Noble County Jail in Perry, Oklahoma, and seeking damages and declaratory
and injunctive relief. The district court concluded that Koetting’s complaint
*
The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
failed to state a claim on which relief could be granted and dismissed it pursuant
to Fed. R. Civ. P. 12(b)(6). Koetting appeals. We affirm for the reasons stated
below.
Koetting was incarcerated in the Noble County Jail from October 1998 to
May 1999. Most of this time he was a pretrial detainee, but during the last few
days of his confinement at the jail, he was a convicted felon awaiting transfer to
the custody of the Oklahoma Department of Corrections. (He is currently
incarcerated in the Lawton Correctional Facility.) He filed this action pro se
while still a pretrial detainee at the jail. He alleged that defendants failed to
adequately fund, staff and operate the jail and that this resulted in inadequate
access to a law library and legal materials; denial of his First Amendment right to
newspapers and magazines; and an assortment of unconstitutional prison
conditions involving, inter alia, medical care, recreational facilities, visitation
policy, and possible hazardous substances in the jail. He also alleged that
28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (PLRA),
is unconstitutional. Defendants filed a motion to dismiss or, in the alternative,
for summary judgment. Following Koetting’s response, a magistrate judge
considered the parties’ arguments and recommended that the complaint be
dismissed for failure to state a claim. Adopting the magistrate judge’s report and
recommendation, the district court dismissed Koetting’s complaint and assessed
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him a strike pursuant to 28 U.S.C. § 1915(g). The district court also denied his
request for reconsideration filed under Fed. R. Civ. P. 59(e).
We review a dismissal for failure to state a claim de novo. 1
Sutton v. Utah
State Sch. for the Deaf & Blind , 173 F.3d 1226, 1236 (10th Cir. 1999). Because
Koetting is proceeding pro se, the district court and this court must construe his
complaint liberally. Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991).
Nonetheless,
[t]he broad reading of the plaintiff’s complaint does not relieve the
plaintiff of the burden of alleging sufficient facts on which a
recognized legal claim could be based. Not every fact must be
described in specific detail, and the plaintiff whose factual
allegations are close to stating a claim but are missing some
important element that may not have occurred to him, should be
allowed to amend his complaint. Nevertheless, conclusory
allegations without supporting factual averments are insufficient to
state a claim on which relief can be based. This is so because a
pro se plaintiff requires no special legal training to recount the facts
surrounding his alleged injury, and he must provide such facts if the
court is to determine whether he makes out a claim on which relief
can be granted. Moreover, in analyzing the sufficiency of the
plaintiff’s complaint, the court need accept as true only the plaintiff’s
well-pleaded factual contentions, not his conclusory allegations.
Id. (citations omitted).
1
Defendants moved alternatively for dismissal for failure to state a claim or
for summary judgment. While the district court stated that it was dismissing
Koetting’s complaint under Rule 12(b)(6), it appears to have considered evidence
submitted by defendants--a jail inspection report--that was outside the complaint.
In our analysis of the court’s action under Rule 12(b)(6), we will not consider this
report. See Brown v. Zavaras , 63 F.3d 967, 970 (10th Cir. 1995).
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We agree with the district court that Koetting’s complaint was too
vague and conclusory to state a claim of unconstitutional prison conditions,
denial of access to courts, or denial of his First Amendment rights. Conditions
of confinement claims under the Eighth Amendment have an objective
component--the deprivation must be sufficiently serious--and a subjective
component--the officials responsible must have acted with a sufficiently culpable
state of mind, which means deliberate indifference to the inmate’s health and
safety. Perkins v. Kansas Dep’t of Corr. , 165 F.3d 803, 809 (10th Cir. 1999). 2
With the possible exception of his claim relating to inadequate medical care,
Koetting failed to satisfy either component; that is, he failed to allege how the
conditions caused him any injury, see Swoboda v. Dubach , 992 F.2d 286, 289
(10th Cir. 1993), and he failed to allege that defendants were aware of and
disregarded an excessive risk to his health and safety, Lopez v. LeMaster ,
172 F.3d 756, 761 (10th Cir. 1999). He contended that he was “stressed” by his
jailer’s failure to provide him the full amount of his heart medication, which is
not a sufficiently serious injury to state a claim. See Olson v. Stotts , 9 F.3d 1475,
1477 (10th Cir. 1993); Clemmons v. Bohannon , 956 F.2d 1523, 1526-27 (10th Cir.
2
While Koetting’s conditions-of-confinement claims as a pretrial detainee
are analyzed as due process claims and those as a convicted felon are analyzed as
Eighth Amendment claims, the same analysis applies to both types of claims.
See Lopez v. LeMaster , 172 F.3d 756, 759 n.2 (10th Cir. 1999).
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1992). His First Amendment claim was also vague and conclusory, lacking any
indication how he was injured. His access-to-courts claim failed because he did
not allege that the absence of legal resources hindered his efforts to pursue
nonfrivolous claims; that is, he again failed to allege injury. Penrod v. Zavaras ,
94 F.3d 1399, 1403 (10th Cir. 1996). 3
Koetting contends on appeal that the district court never indicated to him
prior to the magistrate judge’s report and recommendation that his complaint was
deficient and that it should have allowed him to amend his complaint, though he
does not indicate how. In neither his response to defendants’ motion, his
objections to the magistrate judge’s report, his motion for reconsideration, nor by
separate motion did he seek leave to amend his complaint. For a variety of
reasons, he may not raise that issue now. See Walker v. Mather (In re Walker) ,
959 F.2d 894, 896 (10th Cir. 1992) (appellate court will not consider arguments
not presented to district court); Moore v. United States , 950 F.2d 656, 659
(10th Cir. 1991) (appellate court will not consider argument not included in
objections to magistrate judge’s recommendation); Glenn v. First Nat’l Bank ,
3
The district court correctly noted that because Koetting has been transferred
to another facility and there is no reasonable expectation he will return to the jail,
his requests for declaratory and injunctive relief are moot. See McAlpine v.
Thompson , 187 F.3d 1213, 1216-18 (10th Cir. 1999).
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868 F.2d 368, 369-71 (10th Cir. 1989) (district court not obligated to sua sponte
allow plaintiff to amend complaint).
We also agree with the district court that Koetting’s contention that
PLRA is unconstitutional fails to state a claim. We have already upheld the
constitutionality of PLRA on several grounds. White v. Colo. , 157 F.3d 1226,
1232-35 (10th Cir. 1998). We find the additional grounds asserted by
Koetting--violation of separation of powers doctrine, invalid taking, taxation
without representation, inter alia--to be without merit.
Koetting also challenges the district court’s denial of his motion for
reconsideration in which he contended that the district court did not adequately
consider his objections to the magistrate judge’s report and recommendation and
that the magistrate judge did not give him notice of the standards she was
employing. The district court stated that it conducted a de novo review, and we
accept that statement as adequate indication the court properly considered the
objections. See Clark v. Poulton , 963 F.2d 1361, 1368 (10th Cir. 1992).
Additionally, the magistrate judge was not obligated to give Koetting notice of
the standards governing her analysis of defendants’ motion. By the types of relief
sought, defendants’ motion gave Koetting notice of the applicable standards.
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We have considered Koetting’s other arguments and find them equally
unpersuasive. The judgment of the district court is AFFIRMED. All outstanding
motions are DENIED. Koetting is reminded of his continuing obligation to make
partial payments until the docketing fees are fully paid.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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