United States District Court, D. Kansas
NOTICE AND ORDER TO SHOW CAUSE
J. WAXSE U.S. MAGISTRATE JUDGE
On December 15, 2016, Plaintiff, a state prisoner appearing
pro se, filed a 42 U.S.C. § 1983 civil rights complaint.
The Court conducted a preliminary review of the complaint,
dismissed one count and three defendants, and found that the
proper processing of the remainder of Plaintiff's claims
could not be achieved without additional information (Doc.
#10). Defendant Crystal Martin filed a Martinez
report on July 6, 2017 (Doc. #18). After reviewing the
Martinez report in conjunction with Plaintiff's
complaint and attachments, the Court finds that the remainder
of Plaintiff's complaint is subject to dismissal for the
reasons discussed below.
Screening of Prisoner Complaints
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
employee of such entity to determine whether summary
dismissal is appropriate. 28 U.S.C. § 1915A(a).
Additionally, with any litigant, such as Plaintiff, who is
proceeding in forma pauperis, the Court has a duty
to screen the complaint to determine its sufficiency.
See 28 U.S.C. § 1915(e)(2). Upon completion of
this screening, the Court must dismiss any claim that is
frivolous or malicious, fails to state a claim upon which
relief may be granted, or seeks monetary damages from a
defendant who is immune from such relief. 28 U.S.C.
§§ 1915A(b), 1915(e)(2)(B).
survive this review, the plaintiff must plead “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). In applying the Twombly standard,
the Court must assume the truth of all well-pleaded factual
allegations in the complaint and construe them in the light
most favorable to the plaintiff. See Leverington v. City
of Colo. Springs, 643 F.3d 719, 723 (10thCir.
as here, the Court has ordered a Martinez report, it is used
to develop the record to ascertain whether there are any
factual or legal bases for the plaintiff's claims.
Janke v. Price, 43 F.3d 1390, 1392 (10th
Cir. 1994). The Court may consider the Martinez
report in dismissing a claim under § 1915(d) but cannot
use the report to resolve material disputed factual issues by
accepting the report when it is in conflict with the
plaintiff's allegations. Hall v. Bellmon, 935
F.2d 1106, 1109 (10th Cir. 1991). “The
[Martinez report] should be used to determine
whether or not a relevant, bona fide dispute exists, not to
resolve such a dispute.” El'Amin v.
Pearce, 750 F.2d 829, 832 (10th Cir. 1984).
accordance with the standards outlined above, the Court
assumes the truth of the factual allegations made in
Plaintiff's complaint for purposes of conducting the
screening. The crux of Plaintiff's complaint is that he
has been denied appropriate medical care for the treatment of
diabetes by the staff of the Atchison County Jail
Count 1, Plaintiff claims he was denied proper medication.
Mr. Powell was apprehended on August 13, 2016, in Buchanon
County, Missouri. Upon apprehension, he was transported
directly to a medical provider due to complications with his
blood sugar. He was prescribed several medications, including
Humalog insulin, Glyburide, and Metformin, and AccuChecks
prior to every meal. Plaintiff was taken to the Buchanon
County Jail where he remained for six days. While there, the
prescribed treatment was followed and Plaintiff did not have
August 19, 2016, Plaintiff was transported to ACJ.
“[W]ithin the first couple of weeks” of his
arrival at ACJ, Plaintiff's insulin and Glyburide were
discontinued and his dosage of Metformin was reduced, all by
Defendant Physician's Assistant Jane Doe, as recommended
by Defendant Crystal Martin, a nurse at ACJ.
Count 2, Plaintiff alleges he has been denied proper medical
auxiliary aides and exams. Upon arrival at ACJ, Plaintiff
complained of “difficulty with his eye vision” to
Defendant Martin. She stated ACJ would not provide an eye
examination. Plaintiff also mentioned his vision problems to
Defendant Tammy Jones, a correctional officer, who told
Plaintiff he would need to speak with the medical staff, and
filed two grievances requesting vision testing, which were
denied by Defendants Travis Wright and Jack Laurie. However,
since the filing of his complaint, it appears ACJ nursing
staff made an appointment for Mr. Powell to have an annual
diabetic eye exam on June 1, 2017. Doc. #18-1, p.167.
Count 3, Plaintiff complains that the medical staff did not
perform an A1C test on him until November 9,
2016. He believes this test should have occurred
“shortly after” his arrival at ACJ.
Count 4, Mr. Powell complains of the diet he is being
provided at ACJ, stating it is a high carbohydrate diet when
it should be a low carb diet. Plaintiff alleges his blood
sugar dropped to “a fairly low number a couple of
time” the first weekend he was at ACJ due to the change
in his diet.
Martin provided the Court with Plaintiff's medical
records from ACJ. Where the records conflict with
Plaintiff's account, the Court has accepted
Plaintiff's allegations as true. However, the medical
records largely do not conflict with the complaint, but they
do contain additional details that do not directly conflict
with Plaintiff's allegations. For example, according to
the medical records, medical staff at ACJ either saw
Plaintiff or reviewed his blood sugar readings and adjusted
his medication at least 16 times between August 19, 2016, and
May 9, 2017. Also, the medical records document several times
where Plaintiff was seen eating sweets or trading items from
his diabetic tray for cookies or cakes. This appears to be
consistent with a grievance Plaintiff attached to his
complaint, which ...