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Johnson v. Sale

United States District Court, D. Kansas

March 26, 2014

(fnu) Dr. Sale, et al., Defendants.


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 Shawnee County Jail, Topeka, Kansas (SCJ). Having examined the materials filed, the court finds that the statutory filing fee prerequisites have not been satisfied and the complaint is deficient in several ways.[1] Plaintiff is given time to cure these deficiencies. If he fails to comply within the prescribed time, this action may be dismissed without further notice.


The fees for filing a civil action in federal court total $400.00 and consist of the statutory fee of $350.00 under 28 U.S.C. § 1914(a) 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 submitted a Motion to Proceed without Prepayment of Fees. However, the financial information submitted to support this motion does not meet statutory requirements. 28 U.S.C. § 1915 requires that a prisoner seeking to proceed without prepayment of fees submit a "certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing" of the action "obtained from the appropriate official of each prison at which the prisoner is or was confined." 28 U.S.C. § 1915(a)(2). Plaintiff has submitted a document entitled "Work with Fund Ledger" for a single day only. He states that he was previously at the county jail from April 16, 2013 through July 3, 2013, but does not explain where he was for the six-month period that began in October 2013. If he was confined in any other jail or prison before being booked back into Shawnee County Jail, then it is his responsibility to obtain certified statements showing transactions in his inmate accounts at any prior institutions during the relevant six-month period and to provide that information to this court. Plaintiff is given time to satisfy this statutory prerequisite. He is forewarned that if he fails to provide the requisite financial information or show cause why he cannot within the prescribed time, this action may be dismissed without further notice.

Plaintiff 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 amount of the filing fee. Instead, it merely entitles him to pay the fee over time through payments automatically deducted from his inmate trust fund account as funds become available.[2]


Generally, exhibits and other evidence should not be submitted with the complaint. However, when exhibits are attached, they may be considered part of the complaint. Plaintiff has attached numerous exhibits to his complaint.

As Count I of his complaint, Mr. Johnson asserts violation of his Eighth Amendment right to adequate health care. He generally claims that defendant Dr. Sale was the "Corizon Clinical Head Doctor" whose "reckless" actions caused plaintiff bodily harm and pain. Plaintiff's allegations and exhibits indicate the following factual background for this count. Mr. Johnson had a pre-existing "event or condition" involving his shoulder, which was "reinjured upon (his) arrest on January 29, 2014." He was booked into the SCJ on January 30, 2014. He cannot lift or rotate his left shoulder without "extreme chronic pain." Plaintiff had been taking Tylenol for pain control when his medication was changed to Ibuprofen. He is allergic to Ibuprofen in that it makes him sick. He sent a Health Care Request (HCR) on February 15, 2014, stating that he was in extreme severe chronic pain and had been without pain medication since the day before because he had to refuse Ibuprofen. On February 17, 2014, he was notified in writing "Ibuprofen/NSAIDS added to allergy list" and that his pain and shoulder issues would be referred to Dr. Sale. He was in "severe chronic pain" for 72 hours. Plaintiff alleges that medical records from April and October 2013 reflected his allergy to Ibuprofen. However, exhibited administrative responses indicate that he did not report this particular allergy at his January 2014 intake assessment. An administrative response dated March 10, 2014, to one of plaintiff's grievances provided in pertinent part:

Your records do not show any dangerous allergies to the pain medication given. Furthermore, the records do not reflect that you advised any medical staff of your allergy upon your initial screening. Finally when you were given the pain medication, you reported that you had an allergy to the medication and it was immediately replaced with a different medication. You never reported having negative symptoms (from having taken the medication) so that further steps could be taken to alleviate those symptoms.

Doc. 1-1 at pg. 23.

Plaintiff informed the "intake assessment nurse" of "shoulder injuries sustained during his arrest" and sent six HCRs from January 31 through February 17, 2014. Plaintiff's shoulder was x-rayed on February 10, 2014, and he "received a response stating there was no fracture or dislocation of the shoulder." It took 14 dollars and 19 days before he was seen by a doctor. On February 17, 2014, he was seen by defendant Dr. Sale. He told Dr. Sale that he had complications from two total hip replacement operations and would be in pain for the rest of his life. He also told Dr. Sale that he felt his right shoulder rotator cuff was healing but not the left, which was causing him extreme chronic pain, and that he could not lift his left arm or rotate his arm and shoulder without "extreme chronic pain." Dr. Sale did not touch him to examine him but only asked what he could do to stop his complaints. Dr. Sale "did not investigate" plaintiff's "injuries sustained during his arrest." Dr. Sale prescribed an increased and more frequent dosage of Tylenol pain medication, ordering that Mr. Jones was to receive 975 mgs of Tylenol in the morning, at noontime, and at night.

On February 2 and again on March 4, 2014, a nurse checked out plaintiff's noontime medication but did not deliver it to him. Sometimes plaintiff was brought less than 975 mgs of his medication. On February 4, 2014, plaintiff sent an inmate request to "staff Director of Nursing, " which "Day Supervisor" RN Don responded to the next day: "records indicate you are receiving your noon doses now I will continue to monitor." On February 23, 2014, plaintiff submitted another HCR complaining that his noontime medication was not being delivered.[3] In this HCR, plaintiff also requested an MRI of his left shoulder because he felt this procedure would let him know if his shoulder would heal on its own or he needed to seek surgery. He believed that an x-ray was not adequate to diagnose a rotator cuff injury. Defendant RN Kerrin Marsh responded the next day that Dr. "does not believe an MRI is indicated" and "[o]ur records indicate that you have been receiving your Tylenol as ordered."

As Count II, plaintiff asserts violation of his First Amendment right to access the courts. His allegations and exhibits indicate the following factual background for this claim. Plaintiff sent a "Request to Staff the Director of Nursing" asking for copies of his own medical records and "the full names, positions, and titles of Corizon staff personnel who are to be named" in his civil rights complaint.[4] Defendant Marsh denied his request and advised that he needed approval from the Director of the Shawnee County Department of Corrections in order to possess his medical records in the jail and to obtain the information regarding clinic personnel.[5] Plaintiff stated in his exhibited Inmate Request dated February 28, 2014, that on February 20, 2014, he had received a "full and complete" copy of his medical records except for "Jan 30, 2014 intake assessment" and a sick call record from Feb. 10, 2014. He stated that his "disability lawyers" had obtained these records on his behalf from the Corizon medical clinic. He further stated that the two records he did not have would show that he "notified the medical dept." of his allergy to Ibuprofen.

Plaintiff names as defendants Dr. Sale and HSA Karrin Marsh. He claims that he has not been able to work, play sports, exercise, attend church services, congregate with others, get mental health therapy, or attend self-help courses since he was booked into the SCJ due to his inability to use his left shoulder. Plaintiff asserts that his right to necessary medical treatment under the Eighth Amendment and his right of access to the courts under the First Amendment were violated. For relief, plaintiff seeks a "5 year injunction against the Corizon Clinic" requiring that "they" treat a person entering the SCJ "as if they entered the Stormont Vial (sic) Emergency room" and "send ...

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