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Marks v. Bush

United States District Court, Tenth Circuit

January 2, 2014

GARY DANNY MARKS, Plaintiff,
v.
DEAN BUSH, et al., Defendants.

MEMORANDUM AND ORDER

SAM A. CROW, District Judge.

This pro se civil complaint was filed pursuant to 42 U.S.C. § 1983 by an inmate of the Ford County Detention Center, Dodge City, Kansas (FCDC). Plaintiff complains of conditions at the FCDC including alleged denial of prescribed medication, denial of legal materials and library access, and placement in segregation without due process. Having considered the materials filed, the court finds that the complaint is deficient in several ways. Plaintiff is given time to cure the deficiencies. If he fails to do so within the prescribed time, the complaint or portions thereof may be dismissed without further notice.

FILING FEE

The fee for filing a civil rights complaint in federal court is $400.00, which includes the statutory fee of $350.00 and an administrative fee of $50.00; and for one granted leave to proceed in forma pauperis the fee is $350.00. Plaintiff has filed a motion for leave to proceed without prepayment of fees together with a financial affidavit in support (Docs. 2, 3). Although, the financial information provided by Mr. Marks does not show monthly balances, it appears that he is unable to pay the filing fee or an initial partial filing fee at this time. Mr. Marks is reminded that under 28 U.S.C. § 1915(b)(1), being granted leave to proceed without prepayment of fees will not relieve him of the obligation to pay the full fee. Instead, it entitles him to pay the fee over time through payments automatically deducted from his inmate trust fund account.[1] Accordingly, plaintiff's motion for leave to proceed without prepayment of fees is granted. As a result, he is assessed the full fee to be paid in installments as funds become available.

ALLEGATIONS AND CLAIMS

Plaintiff alleges claims under five counts, which the court has construed as three counts instead.[2] Under his Counts I, II and III, plaintiff claims that he is being denied necessary medical treatment. He asserts that his rights under the Eighth and Fourteenth Amendments of the United States Constitution, the due process clause, and equal protection clause are being violated as a result. The court construes these three claims as plaintiff's Count I. As factual support for this count, Mr. Marks alleges as follows in his "Nature of Case" and supporting facts. Since January 2013, plaintiff complained about shoulder pain. He was seen by "P.A. Dr. Mark Thomas" several times, but medications Thomas prescribed failed to work. P.A. Thomas arranged for plaintiff to see a specialist, Dr. Kyi, who diagnosed plaintiff with a "Hill-Sachs Deformity" and prescribed "Tylenol 3 pain relief." Plaintiff has never received this prescribed medication because "the jail" will not provide it to him. On August 21, 2013, he went to see P.A. Thomas again who wrote "several orders" that day, but none was filled. The defendant "Facility Med Pass Nurse Mike Linsby" told plaintiff that all "orders" for him were "cut" because Linsby and defendant Captain Chris Weis "felt they were unsuitable" and were trying to lower the facility's medical costs. Either defendant Captain Weis or defendant Linsby stated in writing that he denied these "orders" because plaintiff's jail account is "close to $1000.00 in the negative, " which is contrary to the rule book providing that medical care will not be denied due to an inability to pay. "The defendant" failed to establish a procedure in accord with regulations, and to properly exercise his or "their official and supervisory duties." As a result of this denial of prescribed medication and medical negligence, plaintiff has experienced excruciating pain, been restricted from running and exercise, and is now disabled.

In plaintiff's Count IV, now treated as Count II, he generally asserts that he is being denied equal protection of the law. However, among his allegations made in support and in his "Nature of Case, " he also asserts that he is being denied access to the courts. As factual support for this count, Mr. Marks alleges that "the defendant" has not allowed "indigent and/or administrative segregation (ad seg) pre-trial detainees the same rights and/or privileges as all other pre-trial detainees housed in the (FCDC) general population" in that "indigent pre-trial detainees" are denied "legal copies and envelopes (manilla)(sic) to mail legal paperwork, documents and motions" and, under ad seg regulations, are not afforded adequate access to the law library. In support of the latter allegation, he states that he is in ad seg and is limited to 20 minutes twice a week in the law library and that the library provides no book check-out and no printer to print off legal research information. He then alleges that "[t]he defendant" has denied him legal copies, legal postage, large envelopes, and adequate time in the law library based upon his indigency, including his having a negative account balance of nearly $1000.00 as well as his pre-trial detainee/ad seg status.

In plaintiff's Count V, now treated as Count III, Mr. Marks claims that he has been denied due process and equal protection of the law in connection with his placement in ad seg. In support, he alleges in his Nature of Case and under this Count as follows. On October 6, 2013, he was placed on thirty-days "disciplinary lockdown" after a "manufactured weapon" was found in his cell and was "given this sanction before receiving a hearing and/or due process rights." He was told that a detainee at the FCDC is required to "ask for due process" within 24 hours of an incident, but he was unaware of this rule. At the same time, he was also placed in ad seg, but was given "no pre-administrative seg. hearing sheet" advising "him of his rights." To date, he remains in ad seg with no hearing. He is thus in ad seg without having received the "same rights and/or privileges as any other pre-trial detainee" at the FCDC or "any other inmate who is housed in" an ad seg unit.

Plaintiff seeks a declaratory judgment that defendants' acts "regarding policies and procedures described" in the complaint violate his constitutional rights; and that the physical, mental and emotional abuse and failure to take action by defendants Bush, Lane, Weis, Thomas, and Linsby violated his rights under the Eighth and Fourteenth Amendments. Plaintiff seeks an injunction ordering "defendants or their agents" to: provide immediate examination "by a qualified medical doctor" and any treatment ordered by that doctor without delay; reinstate "plaintiff's medical orders" prescribed by defendant P.A. Thomas on August 21, 2013; allow plaintiff access to the courts "by granting legal copies, envelopes, and postage each month;" and develop a "more comprehensive approach" to treatment of medical needs at the FCDC. Plaintiff also seeks compensatory, punitive and nominal damages.

SCREENING

Because Mr. Marks 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 on 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). Nevertheless, 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's "factual allegations must be enough to raise a right to relief above the speculative level, and "to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)(citation omitted). 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 complaint must offer "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555. 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). "[W]hen the allegations in a complaint, however true, could not raise a claim of entitlement to relief, " dismissal is appropriate. Twombly, 550 U.S. at 558. Having screened all materials filed, the court finds that the complaint or portions thereof are subject to being dismissed for the reasons that follow.

FAILURE TO ALLEGE PERSONAL PARTICIPATION OF EACH DEFENDANT

An essential element of a civil rights complaint against an individual is that person's direct personal participation in the acts or inactions upon which the complaint is based. Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir. 2006)(A defendant's direct personal responsibility for the claimed deprivation of a constitutional right must be established.); Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011)(citation omitted)("[P]ersonal participation in the specific constitutional violation complained of is essential."); Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996); Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993)(affirming district court's dismissal where "plaintiff failed to allege personal participation of the defendants"). Moreover, "the defendant's role must be more than one of abstract authority over individuals who actually committed a constitutional violation." Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008). A supervisor may not be held liable based solely upon a theory of respondeat superior. Rizzo v. Goode, 423 U.S. 362, 371 (1976); Gagan v. Norton, 35 F.3d 1473, 1476, n.4 (10th Cir. 1994), cert. denied, 513 U.S. 1183 (1995). Thus, in order for a supervisor to be held liable under § 1983, he or she must have personally participated or acquiesced in the complained-of constitutional deprivation. Meade v. Grubbs, 841 F.2d 1512, 1528 (10th Cir. 1988). An "affirmative link" must exist between the constitutional deprivation and "either the supervisor's personal participation, his exercise of control or direction, or his failure to supervise." Id. at 1527. This link is satisfied if "a supervisor has established or utilized an unconstitutional policy or custom." Id. at 1528.

Plaintiff names as defendants five individuals alleged to be employees of the FCDC: Ford County Sheriff Dean Bush, Ford County Undersheriff James Lane, FCDC Captain Chris Weis, P.A. Mark Thomas, and Nurse Mike Linsby. He fails to plead personal involvement on the part of three of these defendants. His repeated reference to "the defendant" throughout his complaint does not provide any individual defendant with notice as to the basis for plaintiff's lawsuit against him. Plaintiff identifies no actions taken by defendants Sheriff Bush, Undersheriff Lane, or P.A. Thomas that infringed upon his constitutional rights. In fact, he makes no reference to either Bush or Lane by name or the actions of either in the complaint. His initial identification of Bush and Lane and his requests for relief suggest that he sues them based upon their supervisory capacities. He makes bald allegations regarding a policy or lack thereof at the FCDC, but falls far short of adequately describing any unconstitutional policy or custom. He also makes the contradictory statements that he is being denied treatment contrary to administrative rules and ...


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