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Garza v. Correct Care Solutions

United States District Court, Tenth Circuit

September 3, 2013

JOSE GARZA, Plaintiff,
CORRECT CARE SOLUTIONS, et al., Defendants.


SAM A. CROW, Senior District Judge.

The original pro se civil rights complaint filed herein pursuant to 42 U.S.C. § 1983[1] was previously screened by the court and plaintiff was ordered to satisfy the filing fee as well as to file an Amended Complaint that cured the deficiencies set forth in the screening order. The matter is now before the court upon plaintiff's Application to Proceed without Prepayment of Fees (Doc. 4), Amended Complaint (Doc. 5), and Motion to Amend Complaint (Doc. 7). The court has considered all materials filed and finds that this action must be dismissed because the First Amended Complaint fails to state a claim entitling Mr. Garza to relief under § 1983.


28 U.S.C. § 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 the filing of a civil action. Having examined the records of plaintiff's account, the court finds the average monthly deposit to his account was $59.00 and the average monthly balance was $12.74. The court therefore assesses an initial partial fee of $11.50, which is twenty percent of the average monthly deposit rounded to the lower half dollar. Plaintiff must immediately submit this initial partial fee to the court. Plaintiff's motion to proceed without prepayment of the entire fee is granted, and he is assessed the remainder of the $350.00 filing fee. He is thus allowed to pay that remainder in installments automatically deducted from his account pursuant to 28 U.S.C. § 1915(b)(2).


The court has screened plaintiff's First Amended Complaint (Doc. 5) as required by 28 U.S.C. § 1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(B). In the original complaint, the only named defendant was Correct Care Solutions (CCS). When the court notified plaintiff of the defects in his original complaint they included this defendant. In his Amended Complaint, Mr. Garza names 10 defendants and three "John Doe" defendants. The newly named defendants are: Johnnie Goddard, Secretary of Corrections (SOC) Designee; Dr. Lawhorn, CCS Regional Director; Douglas Waddington, Warden, Larned Correctional Mental Health Facility (LCMHF); Dr. S. Kepka, CCS/LCMHF; Dr. Daniel Stanton, LCMHF; Dr. William Slater, CCS; Marlene Able, Director of Nurses, LCMHF; Nurse Kendra Barker, LCMHF; Nurse Barker, LCMHF; and Nurse Dee Rundell, LCMHF Clinic. The three John Doe defendants are described as one prison guard and two inmates at the Lansing Correctional Facility (LCF) in 2003.

As factual support for the Amended Complaint, Mr. Garza alleges the following. He was brutally raped by the John Doe defendants at the LCF in 2003 and contracted anal warts, human papoloma virus (HPU) and/or a sexually transmitted disease (STD) as a result. Prior to the attack, he had none of these conditions. Nor did he have hemorrhoids, hernias, or difficulty and pain when defecating. Since the 2003 rape his physical and emotional pain and suffering have been constant, he cannot sleep due to the pain and nightmares, and he is in excruciating pain when he defecates.

Plaintiff further alleges that he has "attempted to address issues" through KDOC grievances, but the remedies failed due to "the apathy" of defendant Warden Waddington and defendant Goddard. In response to the question on his form complaint regarding exhaustion of administrative remedies, he alleges that Waddington and Goddard "ignore" the rape and his suffering, and have failed to "realistically address issues or resolve grievances."

As Count I and II of his Amended Complaint, plaintiff claims that he was injured during the alleged 2003 rape at the LCF and continues to suffer physical and emotional pain as a result. He asserts that his First, Fifth, Sixth, [2] Eighth, and Fourteenth Amendments have been violated. As Count III, plaintiff claims "medical malpractice" by CCS defendants. As supporting facts, he alleges that he is in constant pain despite CCS attempts to relieve his rectal bleeding. Plaintiff generally alleges that defendants acted with deliberate indifference. The relief requested by plaintiff is punitive damages for "continuing unrelieved suffering."


A. Rape Assault Claim

Plaintiff claims that in 2003 the three John Doe defendants violated his constitutional rights by participating in a brutal "homosexual gang rape" of him at the LCF. Mr. Garza is well aware that he attempted to litigate this very serious claim in prior cases beginning in 2009, without success. In one of those cases, it was determined upon defendants' motion for summary judgment that Mr. Garza had failed to exhaust administrative remedies on this claim. See Garza v. CCS, No. 09-3146 (D.Kan. June 28, 2011), aff'd, App.No. 11-3194 (10th Cir. Aug. 29, 2011). In all prior cases, he was notified of other fatal flaws in this claim including that it was barred by the two-year statute of limitations; that he failed to name proper defendants or to adequately identify defendants for purposes of service of process; and that he failed to allege facts showing personal participation in the attack by defendants he did name. See Garza v. Lansing Prison, No. 09-3113 (Sept. 9, 2009); Garza v. Rohling, No. 09-3144 (Feb. 5, 2010); Garza v. CCS, No. 09-3145 (Feb. 5, 2010); Garza v. Larned State Hospital, 10-3140 (Apr. 26, 2011). Mr. Garza was repeatedly given the opportunity to cure the deficiencies found in his prior complaints but he failed either to cure the deficiencies or respond altogether. He alleges no facts in this case indicating that the time-bar and failure-to-exhaust deficiencies have been or could be remedied. In short, plaintiff alleges no facts which would allow him to relitigate this claim, which has already been dismissed for multiple reasons in five prior cases filed by him.

Plaintiff's added assertions in his Amended Complaint, that the three John Doe defendants should be charged with violations of cited state criminal statutes, utterly fail to state a claim for relief under § 1983. This court has no authority to charge individuals with violations of state criminal statutes. That authority belongs to the appropriate county district attorney. For these reasons, the court dismisses plaintiff's claims of assault and injury at the hands of the three John Doe defendants, with prejudice, as repetitive, and therefore abusive and frivolous, and for failure to state a viable claim for relief.

B. Denial of Medical Treatment Claim

Plaintiff claims that he suffers from specific serious medical conditions as a result of the alleged assault that have not been properly diagnosed and treated. However, Mr. Garza does not write upon a clean slate before this court as to this claim either.[3] In prior cases, he has raised similar claims against a variety of defendants, without success. See Garza v. Lansing, No. 09-3113; Garza v. Rohling, No. 09-3144; Garza v. CCS No. 09-3145; and Garza v. CCS, No. 09-3146. Plaintiff's claim of denial of medical treatment against defendants in his Amended Complaint suffers from the same defects as in the original complaint and his prior cases.

First, Mr. Garza again fails to allege sufficient facts to show the personal participation of each named defendant in the alleged denial of medical care. He has repeatedly been informed in this and his prior cases that 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 and that he must allege facts showing personal participation on the part of each named defendant. In this and his prior cases, plaintiff was given time to name appropriate persons as defendants and to allege facts showing each defendant's personal participation. He was specifically directed in the court's prior order in this case that "all defendants must again be ...

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