United States District Court, D. Kansas
DANNY E. BEAUCLAIR, Plaintiff,
RAY ROBERTS, Secretary of Corrections, 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 El Dorado Correctional Facility-Oswego (OCF). Plaintiff claims denial of effective medical treatment for chronic severe pain and related sleep problems by prison officials and medical personnel at the OCF. The court finds that the Amended Complaint fails to state sufficient facts to evince a federal constitutional violation and dismisses this action for failure to state a claim and as frivolous pursuant to 28 U.S.C. § 1915A(a), (b) and 28 U.S.C. § 1915(e)(2)(B)(i), (ii) because it is repetitive of prior complaints filed by Mr. Beauclair dismissed on the same grounds.
BEAUCLAIR'S RELEVANT FEDERAL COURT LITIGATION HISTORY
The court takes judicial notice of all relevant cases filed by Mr. Beauclair in this court.
Beauclair v. Graves et al., Case No. 03-3237-SAC.
This prior civil rights action naming 67 defendants was filed by Mr. Beauclair in 2003. He complained of being in constant pain spanning his confinement in a county jail and three correctional facilities and claimed that medical staff and government officials had provided inadequate treatment and refused his requests for alternative treatments. He specifically claimed "inadequate medical care for fibromyalgia." See Beauclair v. Graves, 2006 WL 1789139 (D.Kan. June 29, 2006). In addition, he complained of "not getting an additional mattress he believes would relieve pain, " sleep problems, pain and sensory problems related to fibromyalgia, and ineffective pain medications. Id., n.3. Plaintiff was initially ordered to file an Amended Complaint and instead filed five "amendments or supplements." The court screened the "voluminous" materials and found that the "record fully document(ed) continuing care and attention to plaintiff's numerous medical needs." Id. at *2. The standards for an Eighth Amendment denial of medical care claim were set forth. The court further found "plaintiff's allegations fail to suggest that any defendant disregarded an obvious medical concern or failed to take reasonable steps to address any medical need that presented a substantial risk of harm." Id. The court held that "even if plaintiff's constant pain and array of specific medical problems" amounted to a serious medical need, "no cognizable Eighth Amendment claim" was stated because plaintiff failed to satisfy the subjective element of deliberate indifference. Id. The court specifically held that:
[a]lthough plaintiff alleges additional and different treatment is necessary to alleviate his pain and suffering, no deliberate indifference is established by this difference of opinion regarding appropriate medical care.
Id. The court also specifically held that "[t]o the extent plaintiff alleges no cure" has been provided "for his continuing pain and specific medical problems, " no deliberate indifference is established because constitutionally acceptable care was provided. See id. (citing Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996)(physician inability to effect final cure is not proof of deliberate indifference), cert. denied, 519 U.S. 1126 (1997)). The action was dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 42 U.S.C. § 1997e(c)(2), and counted as a strike against Mr. Beauclair.
Beauclair appealed this decision to the Tenth Circuit Court of Appeals, which affirmed. See Beauclair v. Graves, 227 Fed.Appx. 773, 778 (10th Cir. 2007). The Tenth Circuit noted that Beauclair had been diagnosed with numerous ailments including fibromyalgia, chronic fatigue, chronic pain syndrome, sleep disorder, osteoarthritis, and degenerative disc disease. Id. at 775. Beauclair alleged on appeal that he was in "constant pain" and that "prison officials and medical staff provided inadequate treatment and ignored his requests for alternative measures." Id. However, the Circuit found that Beauclair had "conceded in his opening brief" on appeal that "he received the treatment deemed appropriate by the medical staff of each of the facilities" and "was given pain medication and a treatment regimen." Id. at 777-78. The Circuit agreed that "[t]he record fully documents continuing care and attention to plaintiff's numerous medical needs" and that plaintiff's allegations merely showed a difference of opinion regarding appropriate medical care or, at worst, negligence. Id. at 773.
Beauclair v. Werholtz, Case No. 07-3022-SAC.
This prior civil rights action was filed by Mr. Beauclair in 2007 against prison officials and medical staff at two KDOC institutions. He complained that defendants were "deliberately indifferent to his obvious medical needs by not providing effective treatment for his chronic fatigue and fibromyalgia." Beauclair v. Werholtz, 2007 WL 2490910 (D.Kan. Aug. 30, 2007). Upon screening the complaint, this court found that plaintiff failed to meet pleading requirements and appeared to be "seeking relief on claims previously decided" in Beauclair v. Graves, Case No. 03-3237. Id. at *1. The court cited Allen v. McCurry, 449 U.S. 90, 94 (1980), which held that the doctrines "of res judicata and collateral estoppel preclude relitigation of claims that were, or could have been, litigated in a prior action." Id. at *2. Plaintiff was directed to amend his complaint and complied, adding 13 defendants and 19 claims. Plaintiff claimed that "he suffered from a myriad of medical problems for which the treatment provided offers no relief" and asserted that "medical and correctional staff" were denying him "appropriate medical care" and "subjecting him to needless pain and suffering." Id. This court reviewed the amended complaint and required plaintiff to show cause why the action should not be dismissed. Beauclair v. Werholtz, 2010 WL 1285449 (D.Kan. Mar. 31, 2010). The court recalled the Tenth Circuit's finding in Beauclair's prior case that his allegations "merely showed a difference of opinion regarding appropriate medical care, or at most negligence." Id. (citing 227 Fed.Appx. 773 (10th Cir. 2007). Plaintiff's allegations in this 2007 and his 2003 action were discussed including those about fibromyalgia. Also discussed were his "numerous" repetitive administrative grievances, his having misconstrued a nurse's remark as supporting his contention that all medical directives to exercise violated her prior medical order, and his having misconstrued as a denial of medical care a doctor's remark "that it would be a waste of time' for plaintiff to repeatedly seek medical attention contrary to recommended treatment." Id. at *2. The court found from the record that plaintiff's allegations of previously "prescribed care" were often selective or unfounded and in any event did not "control plaintiff's subsequent medical care and treatment as explained to plaintiff in later medical assessments and administrative responses." Id. at *3. This court further found that plaintiff was "receiving continuing care for a chronic condition that involves persistent pain" and had "no right to the specific medical treatment" or accommodations "that he demands." Id. at *3. The court noted that Mr. Beauclair had simply
reiterate(d) his arguments that persistent ineffective treatment for his chronic pain by defendants at LCF and EDCF subjected him to needless pain and suffering by denying him relief and exacerbating his condition.
Beauclair v. Werholtz, 2010 WL 3842560, *1 (D.Kan. Sept. 28, 2010). The court remained "convinced that plaintiff's facts would not allow one to reasonably infer that any defendant was deliberately indifferent to plaintiff's medical needs." Id. This action was dismissed for failure to state a claim and counted as another strike. This decision was not appealed.
Beauclair v. Norris, Case No. 12-3189-SAC.
This prior civil rights action was filed by Mr. Beauclair in 2012 against Dr. Norris and KDOC officials included as defendants based upon their "supervisory liability." In 2011 at the LCF plaintiff told optometrist Dr. Norris that he needed tinted lenses and that in 2007 at the EDCF Dr. Joyce had provided him with tinted lenses. Dr. Norris prescribed new eyeglasses but denied plaintiff's request for tinted lenses. The court ordered a Martinez Report on plaintiff's claim that he was denied necessary medical care in the form of tinted eyeglasses. Medical records provided with the Report revealed that when plaintiff's new un-tinted glasses arrived at the LCF, he left them at the clinic. The court held that plaintiff's reliance on the involvement of defendants McKune and Roberts in the processing of his grievances regarding eyeglasses with tinted lenses failed to show their personal participation and establish their liability. On September 4, 2014, the court dismissed this action for failure to state a claim.
Beauclair v. Dowd, Case No. 13-3169-RDR.
This prior civil action was filed by Mr. Beauclair in 2013 "against nine state and federal judges and five private defense attorneys" and alleged that plaintiff's "due process rights were violated in various criminal and postconviction proceedings in state and federal court." See Beauclair v. Dowd, 582 Fed.Appx. 783 (Oct. 23, 2014). The action was dismissed after plaintiff was notified that it would count as a strike against him. Nevertheless, Mr. Beauclair appealed the dismissal as against Judge Dowd. The Tenth Circuit affirmed based on absolute judicial immunity and found that plaintiff's request for prospective relief amounted to an improper attack upon his conviction. The Tenth Circuit assessed two strikes against Mr. Beauclair "for his wholly meritless claim in district court and his frivolous appeal." Id. at 784.
The foregoing review of Mr. Beauclair's litigation history reveals that before he filed the instant complaint, at least two substantially-similar civil rights complaints were filed by him that were dismissed for failure to state a claim. In addition, he had been assessed three strikes by this court. Despite these rulings, in 2014 Mr. Beauclair filed six new civil complaints: Beauclair v. High, Case No. 14-3020-SAC; Beauclair v. Roberts, Case No. 14-3022-SAC; Beauclair v. Green, Case No. 14-3023-SAC; the instant case; Beauclair v. Cochran, Case No. 14-3128-SAC; and Beauclair v. Harrod, Case No. 14-3146-SAC. The new complaints filed by Mr. Beauclair clearly include claims that are substantially similar to those dismissed in his prior cases for which he was assessed strikes.
ALLEGATIONS AND BACKGROUND
Mr. Beauclair was sentenced in 2002 for rape and aggravated criminal sodomy of a child less than 14. He has since been confined within the Kansas Department of Corrections (KDOC) and housed at the OCF since January 14, 2013. Mr. Beauclair has been diagnosed with several serious medical conditions, which he describes in the instant complaint as follows. Prior to his incarceration, he was diagnosed with a shoulder injury from which he has not recovered; a herniated disc that causes pain when he is lying down, sitting or standing; and fibromyalgia with symptoms including ongoing "widespread pain" and "poor unfreshing sleep every night." He also suffers from chronic muscle pain diagnosed as Myofacial Pain Syndrome (MPS); joint pain, pain from light and sound sensitivity, weakness, head pain, and exhaustion diagnosed as Chronic Pain Syndrome and "Chronic Fatigue and Immune Dysfunction Syndrome" (CFIDS); osteoarthritis of the neck, shoulders, back and hips; and plantar fasciitis. In addition, he "has problems" with his immune, digestive, bowel, bladder, and endocrine systems as well as his brain. Due to his diagnosed conditions, plaintiff has trouble breathing, seeing, hearing, speaking, eating, sleeping, caring for himself, performing manual tasks, walking, standing, lifting, bending, concentrating, thinking, communicating, and working. Pain in plaintiff's right hand is aggravated when he writes. Plaintiff's pain and poor sleep interfere with his daily activities, and he does not participate in indoor activities, work programs, or outside yard exercise. He has "medical problems" every time he goes to the chow hall, the bathroom, or anywhere away from his bunk.
In the instant complaint, plaintiff makes the following general allegations regarding the treatment he has received for his medical problems while in prison. He has "complained many times in the past at OCF about (his) pains and poor sleep." "At times, I only received known ineffective pain medications, which is like giving me no care as I see it." He complained in a sick-call slip that "doctors/APRN had done nothing to help him with his pain" and sleep problems "for months" and that his medical records showed "for years" that "mild pain relievers" were ineffective. "[F]or years" within KDOC and at OCF, he complained of shoulder pains in sick-call slips. "In the past within KDOC" he has been issued ineffective pain medications, a cane and an egg-crate pad for his bed that were taken away, a knee support that caused pain, a wheelchair to minimize his pain from standing and walking, and sleep medications that he found to be ineffective.
The additional background facts that follow have been constructed from plaintiff's allegations and exhibits in this and his other relevant civil cases. In March 2011, a grievances response from Deputy Secretary Johnnie Goddard addressed nine of plaintiff's grievances "collectively that largely raised the same issues. Case No. 12-3189 (Complaint) Doc. 1-1 at 1. Plaintiff was informed in this response:
If CCS determines that you need a restriction one will be written for you. If CCS determines that you require special medical devices such as... tinted lenses, a cane, .. wheel chairs, .. or mattresses, a medical order will be written. If CCS determines that you need certain medications, an order will be written. However, you will not be allowed to determine your need for any of these things. It is my suggestion that you work with CCS rather than against CCS as I believe that they provide the care necessary to meet your medical needs.
Id. Plaintiff submitted a grievance dated March 27, 2011, in which he sought to avoid the Sex Offender Treatment Program (SOTP) claiming it would aggravate his medical problems. See Case No. 12-3216 (Complaint) Doc. 1-1 at 5, 23. Therein, Mr. Beauclair stated:
I was taken off all work years prior to prison so I could limit my activities, as pain medications were 100% ineffective on me for years.
Id. In June 2011, plaintiff received a "Non-Grievance-Response" from Deputy Secretary Johnnie Goddard that listed 40 complaints from all plaintiff's "grievances and correspondence dated 6/21/11 and prior." See Case No. 12-3189 (Doc. 1-1) at 2-3. The list included complaints regarding his mattress, tinted glasses, "ineffective pain medication, " lack of care for fibromyalgia pain, disallowance of "KOP medications, " not receiving proper physical therapy (PT); need for medical limitations on his activities including no walking to chow, need for a helper to perform daily activities, and inability to participate in SOTP until properly treated, medical complaints not responded to, and medical records not kept. Id. Goddard's response provided:
FINDINGS OF FACT:
This inmate has been evaluated and his care has been reviewed on each one of the complaints listed in this document most of these complaints are unfounded. Those very few that were legitimate have been addressed.
This inmate is clinically stable and further care and/or treatment on these issues is not needed past the care treatment he is currently receiving. The inmate was transferred due to his intense supervision needs regarding his continuous medical complaints. Care can be provided for inmate Beauclair at any of the KDOC facilities. However, it is in the State's best interest to place this inmate at ECF at this time due to the ECF's staff familiarity with his concerns and/or complaints. This will allow KDOC to more effectively answer and/or monitor his concerns until this inmate is willing to cooperate and participate fully in the SOTP program. At such time as this individual chooses to participate fully in his health care plan and the SOTP program without any conditions being placed on his participation by the inmate, a plan will be developed to allow access to SOTP programing if space/availability allows once the inmate has decided to fully cooperate....
... We will not respond to any further complaints on the 40 issues listed in this grievance response unless there are significant changes to the findings requiring action to be taken.
Id. at 3.
In two memos dated March 7, 2012, Ray Roberts notified plaintiff that four grievances submitted by him to HCF Warden Cline in 2011 and 2012 were repetitive and fined him $5.00 each as authorized by KAR 44-15-102(d). Case No. 14-3041 (AC) Doc. 3-1 at 21-22. Plaintiff received a similar notice on February 6, 2013. Id. at 23.
On March 20, 2013, Warden Heimgartner sent a memo to Mr. Beauclair on "Abuse of the Grievance Process" noting he had previously been warned about such abuse at the HCF and that sanctions had been requested "as recently as January 23, 2013" based on his "repetitive grievances about the health care treatment you receive." Id. at 18. Heimgartner further noted that plaintiff had "already filed a number of grievances" at the EDCF concerning his "course of treatment" that were "duplicative." The dates, locations, and subjects of these grievances were provided. Mr. Beauclair was again advised that he "may not abuse" the right to file grievances by submitting "repetitive grievances on the same topic, " that such grievances would be returned without substantive comment and the Secretary would be asked "to impose appropriate sanctions." Id. On October 23, 2013, Heimgartner wrote plaintiff another memo on his grievance abuse noting that since the last one, OCF staff reported that Beauclair "continued to file repetitive grievances" and, "[a]ccording to Unit Team Miller's records, " had "filed nearly 40 grievances since February 2013." Id. at 19. Heimgartner listed 18 grievances that concerned Beauclair's medical care and were "duplicative in their subject matter." Heimgartner stated "[t]his is clearly abuse of the system, " staff would continue to monitor his filings, he "may not abuse" the grievance process by filing "repetitive grievances on the same topic, " and the Secretary was being asked to impose a $5.00 sanction. Id.
In plaintiff's supporting facts in his Amended Complaint in this case, his initial allegations are that "prior to November 1, 2013, " APRN Cochran advised him that there were other forms of "treatment for his medical problems" but they were "not allowed within a prison setting, " and on or about November 1, 2013, he was prescribed a medication called "amitripileen" for his pain and sleep problems. On November 18, 2013, plaintiff sent a "Notice" letter to defendants Roberts, Heimgartner, the Governor, and Correct Care Solutions (CCS). Id. at 13. Therein, he stated that he had submitted sick-call slips "dealing with different pains and poor unrefreshing sleep" since his assignment to OCF, had repeatedly been given "known ineffective pain medications" or offered no pain medication, and was "currently being denied pain medications." Id. He also stated he was told by the nurses and HCPs that he was "being denied because (CCS) will not allow (him) to have stronger pain medications" and by doctors that they must follow rules and can only prescribe treatments allowed by the CCS and KDOC. Id. at 13-14. He also complained that he was "not provided" a new thicker all-foam mattress or an extra mattress. In addition, he complained that he was no longer allowed to file medical grievances, had been fined $5.00 per grievance, and no longer had effective administrative remedies as a result. Id. He gave notice that he would proceed to court if the "violations" were not stopped.
On November 22, 2013, Beauclair submitted an "Inmate Request to Staff Member" (IR) asking if Cochran's request for him to be "allowed to try one of the FDA approved pain medications" had been approved. Id. at 11. On December 6, RN Kemp responded: "The medication that was ordered for you, you signed a refusal." Id. On December 23, plaintiff submitted a 5-page grievance against ARNP Cochran, Nurse Kemp, and two others claiming "not receiving ...