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Gadbury v. Bush

United States District Court, D. Kansas

March 26, 2014

RICKY A. GADBURY, Plaintiff,
v.
DEAN BUSH, Sheriff, Ford Co., et al., Defendants.

MEMORANDUM AND ORDER

SAM A. CROW, Senior District Judge.

This pro se civil rights complaint was filed pursuant to 42 U.S.C. § 1983 by an inmate of the Ellsworth Correctional Facility (ECF). Plaintiff claims that he is disabled and suffered serious injury while temporarily detained at the Ford County Jail, Dodge City, Kansas (FCJ) due to that facility's failure to provide a handicap-accessible shower. Having examined the materials filed, the court assesses an initial partial filing fee and requires plaintiff to show cause based on deficiencies including his failure to exhaust administrative remedies.

FILING FEE

The fees for filing a civil rights complaint in federal court total $400.00 and consist of the statutory fee of $350.00 plus an administrative fee of $50.00 or; for one that is 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 (Doc. 2) and 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 of $350.00 for filing a civil action. Instead, being granted such leave merely entitles him or her to proceed without paying the full fee upfront, and to pay the filing fee over time through payments deducted automatically from his inmate trust fund account as authorized by 28 U.S.C. § 1915(b)(2).

Furthermore, § 1915(b)(1) requires the court to assess an initial partial filing fee of twenty percent of the greater of the average monthly deposit 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 the average monthly deposit during the relevant time period has been $190.66, and the average monthly balance has been $41.70. The court therefore assesses an initial partial filing fee of $38.00, 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 is given time to submit the fee to the court. His failure to submit the initial partial fee in the time allotted may result in dismissal of this action without further notice.

FACTUAL ALLEGATIONS AND CLAIMS

In October 2007, plaintiff committed several offenses in Ford County, Kansas, including Rape, Aggravated Kidnapping, Aggravated Criminal Sodomy, Aggravated Intimidation of a Witness or Victim, and Theft. He was charged in Case No. 07-CR-539 and sentenced on February 23, 2012.

As the factual background for his complaint, Mr. Gadbury alleges as follows. On or about October 31, 2008, while he was detained at the Rice County Jail (RCJ), he blacked-out due to his "blood pressure problem" and severely injured his spine when he fell onto the cement floor and against a metal stool and steel table. He was taken to the hospital, but does not remember what occurred there and was not given papers regarding his injuries or diagnosis. He was placed in a medical isolation cell at the RCJ and continued to suffer from neck and head pain as well as difficulty walking. Dr. Liska, a chiropractor in Lyons who provided several treatments, informed plaintiff and the correctional officer accompanying him that plaintiff "had a spine injury that (Dr. Liska) could not fix." Plaintiff was taken back to FCJ for an MRI in late 2008 or early 2009, and was not shackled or handcuffed due to his injuries and pain. Thus, FCJ knew of his injuries.

Plaintiff's condition "continued to deteriorate" and his blood pressure was not properly controlled. In April 2009, he was sent to the ECF where the doctor took x-rays of his back and spine due to his injury at the RCJ and constant complaints of back pain. The doctor "confirmed a severe spine injury, a permanent injury that the MRI" did not show.[1] The ECF doctor prescribed medication for his back and blood pressure, which he takes "to this day, " and he was given a cane. All the foregoing events are "well documented" in plaintiff's medical files maintained by Kansas Department of Corrections (KDOC), which are sent with plaintiff "anywhere (he) goes."

On January 27, 2012, plaintiff was transported to the FCJ "for court appearance, " according to on-line KDOC offender information (KASPER). His medical records were sent with him. The day of his arrival, he informed an officer that he "had a disability due to a spinal injury and needed a shower stall... equipped for handicap individuals." He was told to use B-1 shower stall, which was not handicap-accessible, and no incident occurred. He was returned to the ECF three days later.

On February 23, 2012, plaintiff was again transported to FCJ for resentencing along with his medical records. He informed "John Doe #1" that he "was disabled with spinal injury" and experiencing severe back pain. He "again requested a handicap shower stall." After booking in, he was allowed to shower and told to use B-2 stall. There were "no adequate handicap accessories" in or around this shower. Plaintiff informed "John Doe #2" that the shower was unsafe for him due to his disabilities and that he had back pain and "needed some support during (his) showers." He was told there was nothing the officer could do. Thus, defendants refused to allow plaintiff to use a handicap shower. Plaintiff is unaware if the FCJ, which he believes was built in 2000, was even equipped with such a shower. The door on the shower stall he was directed to use was "extremely heavy" and took effort for plaintiff to open. He had to "lean on the door for leverage" in order to get it open and to stay open. In doing this, he slipped on the floor, and the weight of the door knocked him to the ground. There were no grab bars. He tried to use his dominant hand "to brace the fall" and shattered his wrist. The weight of the door, no handrails, no adequate handicap accessories in or around the shower, and the inadequate floor mats in front of the shower stall all contributed to the "further injury" of his spine. "Directly after this" incident, plaintiff was transported to a local medical center where he was treated for his "severe shattered wrist, " given a cast and pain medicine, and scheduled to see a specialist as follow-up.[2] In a statement attached to the complaint, Mr. Gadbury alleges that he is not allowed to go to the yard or gym for exercise, cannot work a prison job, "is restricted to 10 lbs lifting, no stairs, and bottom bunk, " and continues to have trouble walking and severe pain that is not stopped by the medication provided. He seeks relief based on "the occurrence that happened on February 23, 2012."

Mr. Gadbury designates four defendants in his complaint: Dean Bush, Sheriff FCJ; Chris Weis, Captain FCJ; John Doe #1, Booking Officer FCJ; and John Doe #2, Booking Movement Officer FCJ. Plaintiff names Sheriff Bush and Captain Weis in their official capacities only and the two John Doe defendants in their individual capacities only. Within his complaint, Mr. Gadbury claims that "Ford County and" Sheriff Bush "along with Captain" Weis were responsible for "this injury due to the position" each defendant "holds in office." He further claims that these defendants "are to insure compliance with all State and local as well as Federal Laws and Regulations" and "to afford a reasonable safe environment" to the FCJ's population. In addition, he claims that they "failed to comply with the State and Federal Americans with Disability Act." Plaintiff claims that defendants John Doe #1 and John Doe #2 "are liable" for his injury due to their "total deliberate indifference to (his) prior medical disability." He alleges that the Doe defendants were aware of his disability due to his statements to them, his medical records, and his arrival without shackles and handcuffs.

Plaintiff asserts that "Ford County and all Defendants listed herein" are liable for violating his constitutional rights under the Eighth and Fourteenth Amendments and for violating "the ADA" by failing to accommodate a disabled person by providing a handicap-accessible shower. He further asserts that his constitutional rights were violated by failure to protect him from injury while in custody, deliberate indifference, reckless negligence, wanton or willful misconduct, inadequate training of officers, unsafe conditions, and inadequate facility for inmates with a disability. Plaintiff also asserts violation of his rights under "Title II of the ADA, 42 U.S.C. § 12131(1), 42 U.S.C. 12101, et seq., 42 U.S.C. § 12132 (discrimination), as well as under 28 C.F.R. 35, 130(b)(7), 28 C.F.R. Part 36, Appendix A, and 28 C.F.R. 35.151 (pertains to new construction and alterations), Section 504, " and K.S.A. § 58-1308, and 58-1303, et seq.[3]

Plaintiff seeks a declaration that the acts and omissions of defendants violated the ADA and his constitutional rights to equal protection and due process as well as the Eighth Amendment's prohibition against cruel and unusual punishment. He also seeks a preliminary and permanent injunction ordering defendants to adhere to the injunction "described herein." In ...


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