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Powell v. Laurie

United States District Court, D. Kansas

August 11, 2017

DARREN LEE POWELL, Plaintiff,
v.
JACK LAURIE, et al., Defendants.

          NOTICE AND ORDER TO SHOW CAUSE

          DAVID J. WAXSE U.S. MAGISTRATE JUDGE

         Order 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.

         Statutory Screening of Prisoner Complaints

         The 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).

         To 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. 2011).

         Where, 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).

         Complaint

         In 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 (“ACJ”).

         In 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 further complications.

         On 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.

         In 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.

         In Count 3, Plaintiff complains that the medical staff did not perform an A1C test on him until November 9, 2016.[1] He believes this test should have occurred “shortly after” his arrival at ACJ.

         In 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.

         Defendant 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[2], which ...


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