United States District Court, D. Kansas
DONALD R. GERLT, Plaintiff,
United States of America, et al., Defendants.
SAM A. CROW, Senior District Judge.
This pro se civil action, erroneously styled as a habeas corpus petition, was originally filed in the District of Missouri and transferred to this court because plaintiff was confined at the Leavenworth Detention Center, a private facility operated by Corrections Corporation of America (hereinafter CCA). The court screened the initial pleading, found that Mr. Gerlt complained of conditions of his confinement, and set forth several ways in which his pleading was deficient. Plaintiff was assessed an initial partial filing fee and given the opportunity to amend his complaint to cure the deficiencies. On October 8, 2012, the court dismissed this action for failure to pay the initial partial filing fee.
MOTIONS FOR RELIEF FROM JUDGMENT
Plaintiff has since filed four motions seeking to reopen this action and for relief from judgment. Plaintiff correctly states in his motions that he paid the initial partial filing fee in a timely manner. The court erroneously dismissed this action on the basis of his failure to pay the partial filing fee because the payment was not recorded upon the case docket sheet. Plaintiff's post-judgment motions are granted due to the court's error, and the case is re-opened.
SCREENING OF SECOND AMENDED COMPLAINT
The court has screened plaintiff's Second Amended Complaint (Doc. 23) and finds that a response is required by some but not all named defendants upon some but not all plaintiff's claims.
The court begins by noting Mr. Gerlt was informed that he was required by local court rule to submit his complaint upon court-approved forms and was provided those forms. His Second Amended Complaint again fails to comply with this local court rule because Mr. Gerlt does not fully utilize and complete the forms provided. Instead, he mainly refers to attachments, in which he does not clearly set forth each of his claims followed with the facts in support. The claims raised by Mr. Gerlt are replete with formulaic recitations and still omit dates and durations in many instances, making it difficult to detect plausible factual allegations. Mr. Gerlt is reminded that he is required to adhere to local court rules as well as the Federal Rules of Civil Procedure, even as a pro se prisoner litigant.
A. ALLEGATIONS AND CLAIMS IN SECOND AMENDED COMPLAINT
In his Second Amended Complaint, plaintiff alleges no facts whatsoever on the first five pages, which include the only pages of the court-approved form that he submits. All his allegations are presented in narrative form on eight non-form pages. The first two paragraphs of plaintiff's narrative are completely conclusory and at most indicate that, even though he cites numerous constitutional provisions, his main claim is of deliberate indifference to his serious medical needs under the Eighth Amendment.
Thereafter in his Second Amended Complaint, plaintiff's allegations are as follows. He is a wheelchair-bound amputee. He needs surgery at the stump site to amend nerve damage so he can be properly fitted with a prosthesis, which he also needs. He was denied a prosthesis by Steven Frankovich who stated in medical records that a "wheelchair is sufficient care." Being confined to a wheelchair has caused cruel and unusual punishment to plaintiff including atrophy, inability to walk, physical deterioration and mental anguish. He has been denied surgery "by all places and defendants" of his confinement for over three years.
Plaintiff was detained at the CCA in Leavenworth during "pre-trial and post-conviction" between September 8, 2010, and August 16, 2012. A court in Missouri recommended a "speedy transfer to a medical facility." He was under the care of the United States Marshals Service (USMS) and the registered agent of the CCA, "other defendants, " and CCA personnel. At the CCA, plaintiff was detained "in violation of "the A.D.A." because the facility was not in compliance with Department of Justice "codes and regulations." "Defendants" knew he was "a disabled person as defined by the Rehabilitation Act" but at times did not provide him with handicap-accessible cells or showers. Plaintiff was detained in cells on upper stairway levels with no safety or accessibility features. Showers lacked stationary seats and mobile shower heads. On November 2, 2010, plaintiff was given a plastic bath chair that broke in a shower with uneven flooring, which caused plaintiff to fall. Plaintiff sustained serious neck and back injuries. Dr. Grote refused to see plaintiff, and it took two weeks for plaintiff to get in for x-rays. Plaintiff was left in severe pain for months, but was finally taken to St. Luke's Hospital for an MRI and epidural shots for temporary pain relief. To date he has not seen a specialist, as recommended.
Defendants Franovich, Warden Richardson, Dr. Grote, P.A. Saturfield "and all other applicable" acted "in concert" to deny plaintiff sufficient medical treatment including rehabilitative and prosthesis needs, which resulted in further injury and unnecessary pain. Plaintiff filled out numerous medical requests and exhausted his administrative remedies and was advised by Warden Richardson to pursue his issues in court. "Defendants" knew plaintiff's conditions, and acted with deliberate indifference by sending him to the United States Penitentiary, Leavenworth (USPL) where he was the only wheelchair-bound person. The USPL is not a level-3 medical facility, as required by plaintiff and is not wheelchair-accessible. "Defendants" forced him to walk on a prosthetic leg that caused bruising, sores and pain, and he was made to walk up stairs. He suffered injuries from walking in an improperly fitted prosthesis. Plaintiff was detained at USPL for approximately 5 to 6 months and subjected to "multiple violations by Warden Claude Maye and his staff." He was discriminated against as a disabled person in that he was not provided access to the law library, the "leisure" library, religious services, recreational activities, educational programs, laundry service, canteen and much more that was provided to other inmates. Plaintiff filed numerous administrative remedies, and defendants at the USPL agreed he should never have been sent there.
Plaintiff had to pay other inmates for necessary assistance and was extorted by them. He reported this problem to Mr. Maye and his staff" who ignored the matter until plaintiff was assaulted. After plaintiff submitted a lawsuit, Mr. Maye began taking retaliatory action. Mr. Gerlt was placed in segregation, and his wheelchair was taken. He had no other means to move around, and for a few months was confined to a bed in a cell without a shower and with black mold, which led to bed sores all over his body and mental anguish.
In the month of December 2012, plaintiff spoke to Warden Maye about the shower not being accessible and stated he had not showered in five days. Maye told him to use "the little blue container, " even though it was not ADA compliant. He informed Associate Warden Loftness of his inability to shower due to ADA violations. Finally, plaintiff describes an incident on January 3, 2013, in which Warden May came to plaintiff's cell on a routine visit and, after plaintiff yelled at him about the conditions, Maye acted in a very hostile and retaliatory manner. Maye cuffed plaintiff, forced him to crawl into the ...