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Smith v. Lappin

United States District Court, Tenth Circuit

September 30, 2013



SAM A. CROW, U.S. Senior District Judge.

This matter is a civil rights action filed pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).[1] Plaintiff, a former federal prisoner, commenced this action while in a halfway house. He proceeds pro se and in forma pauperis and seeks damages related to an alleged denial of adequate medical care.


The federal in forma pauperis statute, 28 U.S.C. § 1915, “is designed to ensure that indigent litigants have meaningful access to the federal courts.” Neitzke v. Williams, 490 U.S. 319, 324 (1989). The statute authorizes a federal court to summarily dismiss an action brought in forma pauperis if it determines the allegation of poverty is false, the matter is frivolous or malicious, the action fails to state a claim upon which relief may be granted, or the action seeks monetary damages against a defendant who is immune from that relief. 28 U.S.C. § 1915(e)(2). A dismissal under this provision may be made prior to the service of process. Neitzke, 490 U.S. at 324.

Plaintiff names as defendants Harley Lappin, Director of the federal Bureau of Prisons (BOP), and Van Racy of the BOP Community Corrections Office in Kansas City, Kansas. He broadly asserts the defendants’ negligence subjected him to cruel and unusual punishment.

By a previous order, the court directed plaintiff to identify any personal participation by defendant Lappin and to supply additional information concerning his use of administrative remedies to exhaust his claims, as required by the Prison Litigation Reform Act. See 42 U.S.C. § 1997e(a).

Exhaustion of remedies

Section 1997e(a) applies to all inmate suits concerning confinement. Porter v. Nussle, 534 U.S. 516, 532 (2002). Likewise, the use of available administrative remedies before commencing an action is mandatory. See Woodford v. Ngo, 548 U.S. 81, 85 (2006)(“Exhaustion is no longer left to the discretion of the district court, but is mandatory.”)

Plaintiff filed a response (Doc. 19), and provided materials that trace the medical assessments conducted on him in January 2010, April 2011, and January 2012. The most recent findings include a mild loss in disc height and hydration, a mild bulging disc, a mild broad-based herniated disc, minimal displacement of a nerve root, osteoarthritis, and minimal stenosis. (Doc. 19, Attach., p. 2.)

There is no showing, however, that plaintiff pursued an administrative claim on the issue presented here, namely, that defendant Van Racy violated his constitutional rights by denying him surgery during his halfway house placement.

The court notes that materials submitted in support of the complaint reflect that plaintiff pursued administrative remedies prior to his release to the Residential Reentry Center. The responses prepared at that time made concluded the plaintiff had received appropriate care for his complaint of back pain:

1) The institutional response states, in part, “A review of your medical records indicates that you [have] been seen on numerous occasions for your complaint of back pain. It also indicates that you have been placed on pain medication regimen to help relieve pain in your back. On February 2, 2009, you had an X-Ray of your back, and results were negative.” (Doc. 1, Attach., p. 8.)
2) The regional response states, in part, “On April 3, 2009, you were seen by the staff physician and you complained of chronic lower back pain…. You also denied any recent trauma. The staff physician performed an examination and evaluation. The physician ordered an injection of Ketorolac … to provide relief for your chronic back pain, and he told you to get a follow-up at Chronic Care Clinic. On June 26, 2009, you were seen by the staff physician for a Chronic Care visit follow-up. You received an MRI of the lumbar spine, which revealed a moderate posterior disc bulge … with disc narrowing. You were advised by the physician in the interim to perform muscle strengthening exercises. On August 4, 2009, an administrative note by the CD indicated he submitted a referral for a Neurosurgeon to perform a neurosurgical consultation due to herniated discs. The Neurosurgeon consultation request has been submitted and scheduled….” (Id., p. 11.)
3) The national response states, in part, “[Y]ou were evaluated by a consultant neurosurgeon on September 22, 2009, who diagnose you with lumbar radiculopathy…with…foraminal narrowing. You were informed by the specialist that this was not a life threatening lesion and a recommendation was made for you to received conservative treatment at this time. Further review of your medical record reveals you ...

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