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McDiffett v. Nance

United States District Court, D. Kansas

September 29, 2017

SHAWN W. McDIFFETT, Plaintiff,
v.
CHARLES NANCE, et al., Defendants.

          NOTICE AND ORDER TO SHOW CAUSE

          DAVID J. WAXSE, U.S. MAGISTRATE JUDGE.

         Plaintiff Shawn McDiffett is hereby required to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why his claims against Defendants Christopher Hunt, CO Obeidat, Randy (lnu), Jane Doe, Dr. Saffo, UTM Wildermuth, and CO Redieck should not be dismissed due to the deficiencies in Plaintiff's Complaint that are discussed herein.

         I. Nature of the Matter before the Court

         Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Although Plaintiff is currently incarcerated at the Hutchinson Correctional Facility in Hutchinson, Kansas (“HCF”), the events giving rise to his Complaint took place during his incarceration at the Lansing Correctional Facility in Lansing, Kansas (“LCF”). Plaintiff names as defendants: Charles Nance, Unit Team Manager (“UTM”) at LCF; Kent Saffo, M.D. employed by Corizon; Jennifer Kieltyka, ARNP/PA employed by Corizon; Lauren Gift, Corizon Clinic Administrator; Beverly Jackson, Corizon Nurse; Jane Doe, Corizon Nurse; Gaye Servino, Corizon Nurse; Barbara Redieck, Correctional Officer (“CO”) at LCF; Randy (lnu), Aramark Food Service Supervisor; (fnu) Obeidat, CO at LCF; Irene Silva, CO at LCF; (fnu) Arol, CO at LCF; Christopher Hunt, Disciplinary Hearing Officer (“DHO”) at LCF; Eilene (lnu), Corizon Infirmary Nurse; and Lindsay Wildermuth, UTM at LCF Segregation and/or Restrictive Housing Unit. All Defendants are sued in their individual capacities.

         Plaintiff filed a Complaint (Doc. 1), alleging the following. Around December 2013, while housed at HCF, Plaintiff was diagnosed with Chronic Obstructive Pulmonary Disease (“COPD”) and an inguinal hernia. On April 14, 2014, Plaintiff was transferred to LCF and placed in an upper-level cell house. Plaintiff had to climb two flights of stairs, and then navigate another set of stairs to get to his second-tier cell. Plaintiff was later moved to a cell requiring him to climb three flights of stairs and then navigate another set of stairs to reach his second-tier cell. Plaintiff made complaints due to the pain caused by his hernia and his breathing problems. Because of limited bed space, Plaintiff was told to continue putting in sick calls. Plaintiff remained in this cell for eight months, causing his hernia to worsen to the point of foreclosing the possibility of reduction. It took nearly two month for Plaintiff to receive a hernia belt.

         On January 24, 2015, Plaintiff was placed in segregation for refusing to lockdown until he received an inhaler. After Plaintiff explained his situation to the Segregation Review Board, he was released back to general population and placed on a lower level cell house. After only a few days in the lower level cell house, Plaintiff was ordered to move back to an upper level cell house. Plaintiff was issued a disciplinary report for his refusal to move to the upper cell house. When it was discovered that Plaintiff had a stair restriction, the disciplinary report was dismissed.

         Plaintiff was transferred to the LCF medium facility in March 2015, and Defendant Silva asked Defendant Nance to house Plaintiff right in front of the office by the outside doors. This allowed pollen, dust and dirt from the outdoors to blow on Plaintiff's bunk area, causing Plaintiff to cough and sneeze, further aggravating his hernia and COPD. Plaintiff was not only exposed to outside environmental conditions, but in addition Defendant Nance was having the ceiling, bath and shower area refurbished, causing dust and debris to enter the air. Defendant Silva also sprayed chemicals, including “deodorizer, ” throughout the cell house. Defendant Nance refused Plaintiff's requests to move to a different cell.

         Around March 31, 2015, Plaintiff was removed from the medium facility when staff claimed he was in a state of altered conscious. When Plaintiff was placed in segregation, Defendant Wildermuth placed Plaintiff in a second tier cell, with a burnt and water-soaked mattress and glass on the floor. Once Plaintiff spoke to the Segregation Review Board Plaintiff was released back to general population and was transferred back to the medium facility around the first week in April. Defendant Silva put Plaintiff back in his same bunk.

         Plaintiff had hernia surgery on April 9, 2015. Following surgery Plaintiff was taken to the LCF maximum facility infirmary, and was released the next morning-less than 24 hours after surgery-by Defendant Kieltyka, to return to the LCF medium facility. When Plaintiff asked for help returning to his cell at the LCF medium facility, Defendant Arol told Plaintiff to put his boxes of property on his wheelchair and push it so he would not have to carry it. Once Plaintiff reached the medium facility, Defendant Servino refused to give Plaintiff an aid to assist him. Plaintiff had to navigate an 85% incline when returning to the facility, and had to climb the same hill every time he went to eat, to activities, or to call outs.

         Defendant Jackson failed to schedule Plaintiff's two-week follow up with his surgeon. Plaintiff did not see his surgeon until two months following his surgery, and only then because Plaintiff's mesh came loose and a reoccurring hernia appeared.

         Around May 12, 2015, Plaintiff stopped to rest on a bench when he was returning from his evening meal. Plaintiff was issued a summary judgment citation for unauthorized presence. Because Plaintiff refused to sign the citation, it was converted to a disciplinary report. Plaintiff had two hearings. He was found guilty at the first hearing, and was granted a second hearing after he appealed to the warden. The second hearing was before Defendant DHO Hunt. Plaintiff advised Defendant Hunt that he has COPD, had hernia surgery, and that his doctors told him to stop and rest when needed. Defendant Hunt found Plaintiff guilty and sanctioned Plaintiff with a $10 fine. Defendant Hunt stated that Plaintiff's medical profile did not give Plaintiff permission to be anywhere on the compound he wished, and if Plaintiff was having an issue he should have let someone know. Plaintiff appealed and the ruling was upheld.

         Plaintiff weighed 178 pounds when he had his surgery on April 9, 2015. On May 19, 2015, he weighed only 148 pounds due to severe pain and the inability to keep food down. His Zofran medication that helped with his eating expired and Plaintiff tried to report to the clinic after submitting several sick calls. Plaintiff was turned away by Defendants Redieck and Servino, who told Plaintiff he needed to submit a sick call because it was not an emergency. Defendant Saffo was Plaintiff's assigned doctor, and Plaintiff alleges that Dr. Saffo would have been aware of Plaintiff's sick call requests, yet did nothing. Plaintiff complained to Defendant Gift about her subordinate nurses, but she took no corrective or remedial action. Plaintiff was forced to complain to the Captain's Office, which resulted in calls to Defendants Gift and Servino instructing them to let Plaintiff see Dr. Saffo. Dr. Saffo immediately admitted Plaintiff to the clinic infirmary. Plaintiff was classified as “sheltered” for bed rest and pain management, began a series of medications, and was scheduled to see his surgeon.

         While in the infirmary, Defendant Eilene, a Corizon nurse, changed Plaintiff's doctor-prescribed Zofran and instead gave Plaintiff a shot that caused Plaintiff to suffer a reaction. On May 24, 2015, Plaintiff's Zofran was again allowed to expire and Plaintiff had to wait for it to be reordered. When it was also discovered that “the nurse” gave Plaintiff a double dose of his medication, she told him that it wouldn't hurt him. On May 25, 2015, Plaintiff requested his medication at 2:30 p.m., and after three more requests, his medication was finally delivered after 4:00 p.m.

         Plaintiff had a follow up with his surgeon on May 26, 2015. The surgeon suggested that Plaintiff talk to a psychiatrist because Plaintiff “was actually beginning to wonder if all this was just [him], if it were really happening, or if it [was] actually happening to everyone.” After speaking to the psychiatrist, Plaintiff started taking a low dose of Doxepin for his stress, and Lisinopril for his high blood pressure.

         On May 31, 2015, Plaintiff requested his medication at 5:30 a.m.-Tramadol for pain and Zofran to keep his food down-but the medication was not delivered until after breakfast. Nurse Eilene said that Plaintiff did not have an order for medication and had not been taking medication for days, even though Plaintiff had been receiving and taking his medication.

         On June 1, 2015, Plaintiff decided to stop taking Doxepin due to the side effects. Plaintiff learned that he had not been taking the lowest dose as prescribed by the psychiatrist. Plaintiff discovered that Nurse Eilene had lied about his medication not being charted and about not having a record of Plaintiff taking his medications.

         Plaintiff met with Dr. Saffo on June 2, 2015, and Dr. Saffo agreed with Plaintiff that neither Nurse Eilene nor Nurse Kieltyka should be changing Plaintiff's medications from what the doctor prescribed.

         On June 2, 2015, Nurse Eilene brought Plaintiff his medication even though he had not requested it. Plaintiff had to ask a CO to make Nurse Eilene leave his cell because she was trying to make Plaintiff take the medication and “[h]er actions were so bizarre that [Plaintiff] did not ever want [his] meds from her again.” Several hours later Plaintiff requested his medications and Nurse Eilene showed up with the medications. Plaintiff refused to take the medication and had to leave his cell when she refused to leave.

         On June 3, 2015, the results of an ultrasound performed at St. Lukes Hospital revealed that Plaintiff had a hernia at the same location as his previous hernia. When Plaintiff returned from the outside transport, Nurse Eilene accused Plaintiff of refusing to hand over paperwork when in fact he had no paperwork. After that, CO Obeidat searched Plaintiff's cell when Plaintiff left his cell for medication and a vitals check.

         On June 5, 2015, Plaintiff advised Nurse Kieltyka that he still only weighed 147 pounds, to which she replied that he needed to eat more. Plaintiff continuously asked her to change his diet but she either did not do it or stated that the doctor had to do it. Plaintiff's diet was eventually changed to a high protein diet with no peanut butter, double portions and a snack sack at night. He received this new diet while in the clinic, but when he was released from the clinic Aramark Supervisor Randy (lnu) refused to provide the double portion meal diet to Plaintiff, stating that he did not have a record of such a restriction in his “book.” On June 5, 2015, Nurse Kieltyka refused to give Plaintiff a shot when his legs were cramping. Plaintiff requested calcium pills which he had previously taken at a different facility, but which Dr. Saffo had replaced with Vitamin B-6. Plaintiff quit taking the Vitamin B-6 because it did not work, and Plaintiff's request for calcium pills was denied.

         On June 7, 2015, Plaintiff found out that his pain medication had expired the day before, and Nurse Kieltyka had failed to reorder the medication and changed Dr. Saffo's order without advising Plaintiff. On June 8, 2015, Nurse Kieltyka informed Plaintiff that the doctor's order for his pain medication was now correctly written and she apologized saying that she should not have changed it in the first place.

         On June 8, 2015, after Plaintiff had made two written requests to speak to Defendant Gift and Ms. Mendoza, Plaintiff asked two inmates to contact them and advise them that Plaintiff wished to speak with them. Both inmates made the requests, but neither Gift nor Mendoza showed up.

         On June 10, 2015, Plaintiff had an incident with CO Obeidat, who was harassing Plaintiff and not letting Plaintiff out of his cell for dayroom. Defendant Obeidat verbally harassed Plaintiff to the point of Plaintiff “lashing out at him, ultimately ending with [Plaintiff] receiving a Disciplinary Report from him.” Plaintiff alleges that ...


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