The opinion of the court was delivered by: Sam A. Crow U. S. Senior District Judge
This pro se civil complaint was filed pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-2680 (FTCA) by an inmate of the United States Penitentiary, Leavenworth, Kansas (USPL). Mr. Lewis claims that since his placement at the USPL in September 2008 he has been denied proper medical treatment in connection with serious conditions including "problematic stoma colostomy issues." He asserts cruel and unusual punishment in violation of the Eighth Amendment, careless and negligent disregard, and excessive delays. The court requires plaintiff to pay an initial partial filing fee. Plaintiff is also required to show cause why the United States should not be substituted as defendant in the FTCA claim and why plaintiff's claim for injunctive relief should not be considered as against the individual defendants in their official capacities only.
ASSESSMENT OF INITIAL PARTIAL FILING FEE
The statutory fee for filing a civil rights complaint is $350.00. Plaintiff has submitted an Application to Proceed without Prepayment of Fees (Doc. 2). He is reminded that under 28 U.S.C. § 1915(b)(1), being granted leave to proceed without prepayment of fees does not relieve him of the obligation to pay the full amount of the filing fee. Instead, it entitles him to pay the fee over time through payments automatically deducted from his inmate trust fund account as funds become available pursuant to 28 U.S.C. § 1915(b)(2).*fn1
Furthermore, § 1915(b)(1), requires the court to assess an initial partial filing fee of twenty percent of the greater of the average monthly deposits or average monthly balance in the prisoner's account for the six months immediately preceding the date of filing of the civil action. Having examined the records of plaintiff's account, the court finds the average monthly deposit during the relevant time period was $63.95, and the average monthly balance was $26.94. The court therefore assesses an initial partial filing fee of $12.50, twenty percent of the average monthly deposit rounded to the lower half dollar. Plaintiff must pay this initial partial filing fee before this action may proceed further, and will be given time to submit the fee to the court. His failure to submit the initial fee in the time allotted may result in dismissal of this action without further notice.
As the factual background for this lawsuit, Mr. Lewis alleges the following. He has been under the care of the Prison Health Services at the USPL since September 2008. He has "problematic stoma colostomy issues" including the deteriorating condition that "the stoma opening in (his) stomach continually tries to grow closed with scar tissue," resulting in daily tearing, pain, and bleeding. He informed defendants upon his arrival of prior recommendations that he see a stoma specialist and has been waiting 31/2 years to see one. Defendants are making medical decisions in his case based on saving money rather than his serious needs. Dr. McCollum has instructed him to physically stretch his stoma daily with his fingers without proper supplies, and the stretching has resulted in a never-healing, toughening wound. An outside doctor made the additional recommendation that he soak the stoma scar tissue area daily in a salt water solution. Plaintiff has tried through administrative remedies to see a stoma specialist for surgery or other solution to the unbearable pain and difficult self-treatment. A reduction in pharmacy resulted in his being provided inadequate medical supplies for his condition. Inmates were notified by pharmacy in July 2010 that effective immediately supplies would be distributed once a month, that colostomy bags would be limited to 10 per month that could be rinsed out and saved, and that wafers would be limited to 5 per month with the recommendation that they be changed no more often than 5 to 7 days. Flex patches have been limited to 10 per month, though his wash off during his daily soakings. He has been instructed to wash out pouches for re-use, which leads to infection and requires more privacy than provided. He has tried through the administrative remedy process to obtain assistance with his daily care requirements as well as adequate colostomy supplies, cleanliness, and privacy during his daily care routine. He needs more than the normal allotment of supplies, but receives less than half the supplies that Medicare/Medicaid provides. He has sought assistance from many prison officials,*fn2
and some have expressed surprise and sympathy at his plight, but all eventually have deferred to Ms. Osborne and her insistence that plaintiff is receiving adequate supplies. Plaintiff alleges that Ms. Osborne refused to discuss his personal needs when approached by others on at least 2 occasions. He believes that she is not fully aware of his circumstances, and that she has acted with rudeness and indifference toward him. In an attempt at resolution he asked to go back to his prior insurance carrier or that his friends and family be allowed to buy additional supplies, but he received no response. When he complained, he was told to report to sick call or wait until his scheduled chronic care visit. Group meetings regarding his problems have not resulted in solutions. Plaintiff alleges that he has exhausted all administrative remedies, including a "tort claim" that has not been answered.
Because Mr. Lewis is a prisoner, the court is required by statute to screen his complaint and to dismiss the complaint or any portion thereof that is frivolous, fails to state a claim upon which relief may be granted, or seeks relief from a defendant immune from such relief. 28 U.S.C. § 1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(B).
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). However, 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). 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). The complaint must offer "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint's "factual allegations must be enough to raise a right to relief above the speculative level," and there must be "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 555, 570.
"The United States is the only proper defendant in an FTCA action." Smith v. U.S., 561 F.3d 1090, 1099 (10th Cir. 2009)(citing Oxendine v. Kaplan, 241 F.3d 1272, 1275 n. 4 (10th Cir. 2001)). 28 U.S.C. § 2679(d)(1) provides that "[u]pon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action . . . commenced upon such claim . . . shall be deemed an action against the United States under . . . this title . . . and the United States shall be substituted as the party defendant." The FTCA further provides that the United States may be liable for an employee's negligence "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). Plaintiff does not name the United States as defendant. Instead, he names USPL employees Claude Maye, Warden; Jon Loftness, Assistant Warden; and Dr. McCollum, Clinic Director. He also names J. Blevins, USPHS and A. Osborn, USPHS, persons who are apparently employees of, or medical providers working at, the USPL. Mr. Lewis does not indicate whether he sues these individual defendants in their official or individual capacities or both. However, he alleges that defendants were employed by the Government at the time his claims arose. A plaintiff may not sue federal employees or agents in their official capacities, because such a suit is, in effect, one ...