United States District Court, D. Kansas
MEMORANDUM AND ORDER
SAM A. CROW, District Judge.
This pro se civil action was filed by a federal prisoner housed at the United States Penitentiary, Leavenworth, Kansas (USPL). Having examined the materials filed, the court assesses an initial partial filing fee, which plaintiff is required to submit. In addition, the court finds that the complaint is deficient in several ways and requires plaintiff to cure these deficiencies.
ASSESSMENT OF INITIAL PARTIAL FILING FEE
The fees for filing a civil complaint in federal court for one that is granted leave to proceed in forma pauperis is $350.00. Plaintiff has submitted a motion to proceed without Prepayment of Fees and has attached an Inmate Account Statement in support as statutorily mandated. Under 28 U.S.C. § 1915(b)(1), a prisoner granted such leave is not relieved of the obligation to pay the full fee for filing a civil action. Instead, it merely entitles him to proceed without prepayment of the full fee, and to pay the filing fee over time through payments deducted automatically from his inmate trust fund account as funds become available.
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 that the average monthly deposit during the relevant time period was $212.40, and the average monthly balance was $22.96. The court therefore assesses an initial partial filing fee of $42.00, 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 within the prescribed time may result in dismissal of this action without further notice.
ALLEGATIONS AND CLAIMS
As factual support for his complaint, Mr. Martinez alleges as follows. In October 2012, he was transferred to the USPL from "FCI Bastrop" by way of Oklahoma. He has three distinct medical conditions: a prominent cyst on the back of his neck that has caused pain and he believes other symptoms; a cyst in a sinus cavity that was diagnosed at FCI Bastrop; and symptoms including periodic shortness of breath, chest pains, and numbness, which have gone undiagnosed. "FCI Bastrop" recommended removal of the cyst on his neck and approved a "cardiology procedure." Plaintiff complained 15 separate times between January 20, 2011, and April 19, 2013, of symptoms from the cyst on his neck "located on top of the nerves" including pain, a burning sensation, and that it was getting larger. Doc. 1-1 at pg. 34 (Central Office Administrative Remedy Appeal). He believed that this cyst could be the cause of other symptoms of which he complained including, for example, numbness in his extremities, shooting pains, and sleep interruption, and that it could be cancerous or result in permanent impairment.
Plaintiff has attached many exhibits to his complaint including medical records and portions of the administrative remedies record. While the submission of exhibits with the complaint is discouraged, once they are submitted the court may consider them as part of the complaint. One exhibit is the Warden's Response to plaintiff's Administrative Remedy dated January 21, 2013. The Response, dated February 21, 2013, provided in pertinent part:
You had an MRI of your sinuses completed at a previous institution which revealed a small cyst that does not require surgical intervention currently. On October 18, 2012, you were seen by the Clinical Director for chronic care. At that time she addressed your cardiac issues, reviewed your file, and ordered lab work and an EKG. The EKG and lab work were normal. Additionally, the cyst on the back of your neck was examined and determined that this would be an elective procedure and surgical intervention would not be considered at this time. The Clinical Director instructed you to follow up as needed through sick call for continued or new issues that may arise.
Plaintiff also exhibits the Response by Regional Director Paul M. Laird to his Regional Administrative Remedy Appeal dated April 8, 2013, which provided in pertinent part:
For relief you request a Cardiology consultation and outside consultation for the removal of a neck cyst and nasal cavity cyst.... On October 18, 2013, you were examined by the Clinical Director during a scheduled Chronic Care Clinic (CCC) Evaluation. The Clinical Director made no recommendation for you to be evaluated by a Cardiologist. Additionally, it was determined that the removal of your neck cyst was considered elective and that it would not be removed at the current time. During your CCC evaluation, you voiced no concern regarding a nasal cavity cyst, nor have you reported to sick-call for evaluation of a nasal cavity cyst. Based on this review, we concur with the manner in which the Warden addressed your concerns. You have consistently been provided timely and appropriate medical care in accordance with Program Statement 6031.03, Patient Care. The Health Services Department will continue to monitor your medical needs. If your condition worsens, you may sign up for sick call and be re-evaluated. Given this, we shall defer diagnostic and treatment interventions to the Health Services Staff at the local level....
Doc. 1-1 at pg. 33. Plaintiff appealed this decision and received notice of a new Response due date of July 19, 2013, because more time was needed to respond to his Central Office Appeal. However, he received no response prior to filing this lawsuit.
Plaintiff claims that his constitutional right to medical treatment is being denied, and asserts that the Fifth, Eighth, and Fourteenth Amendments have been violated. The sole named defendant is Dr. Kristine A. Aulepp, whom plaintiff sues in her individual capacity. He requests relief in the form of transfer to ...