Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McDiffett v. Fromm

United States District Court, D. Kansas

December 5, 2017

SHAWN W. McDIFFETT, Plaintiffs,
DARRELL FROMM, et al., Defendants.


          Sam A. Crow U.S. Senior District Judge

         Plaintiff Shawn W. McDiffett is hereby required to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why this case 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 bring this pro se civil rights action pursuant to 42 U.S.C. § 1983. The Court granted Plaintiff leave to proceed in forma pauperis. 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 El Dorado Correctional Facility in El Dorado, Kansas (“EDCF”). On August 25, 2017, the Court entered an Order (Doc. 6) finding that the proper processing of Plaintiff's claims could not be achieved without additional information from appropriate EDCF officials. See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978); see also Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991). The Court ordered the officials responsible for the operation of EDCF to conduct a review and submit a written Martinez report.

         “The purpose of a Martinez report is simply to give the trial court sufficient information for the orderly consideration of issues.” Davis v. McKune, 16 F.3d 415 (Table), 1994 WL 7106, *1 (10th Cir. 1994) (unpublished). “A Martinez report is often necessary in pro se cases such as this to develop a record sufficient for the trial judge to ascertain whether there are any factual or legal bases for the prisoner's claims.” Rider v. Werholtz, 548 F.Supp.2d 1188, 1202 (D. Kan. 2008) (citing Hall, 935 F.2d at 1109). “Although the district court may consider the report in dismissing a claim, it may not resolve disputed issues of material fact by simply accepting the reports factual findings when they conflict with those in the pleadings.” Nickelberry v. Pharaoh, 221 F.3d 1352 (Table), 2000 WL 985665, at *1 (10th Cir. 2000) (unpublished) (citing Hall, 935 F.2d at 1109). “Therefore, a prisoner need only present sufficient information to contest a fact in the Martinez report in order to prevent dismissal on that ground.” Nickelberry, 2000 WL 985665, at *1. The Martinez Report was filed on November 27, 2017 (Docs. 13, 16.), and the Court is now ready to screen Plaintiff's Complaint.

         Plaintiff alleges that when he was transferred to EDCF on November 23, 2016, he notified “Nurse Jane Doe” of his various allergies, including peanut butter, “which it appeared she recorded.” Plaintiff alleges that Nurse Jane Doe was acting bizarre and appeared to be having a mental breakdown. After Plaintiff was assigned to his cell, “he advised of [his] diet being a regular diet with allergy to peanut butter.” Despite the use of a special-colored food tray with the allergy noted, Plaintiff still encountered problems with the handling and delivery of his food tray. Some days there would be peanut butter on his tray and other days “staff” would serve him a vegetarian or high-protein tray. On one occasion “the officer” brought Plaintiff a tray containing peanut butter and stated to Plaintiff that although the tray contained peanut butter, it was not on his food. When Plaintiff explained to the officer that Plaintiff's tray should contain a meat/protein substitute and should not be prepared or handled around peanut butter, Plaintiff's tray was returned to the kitchen by Sgt. Tillery. When the tray was returned to Plaintiff a hard-boiled egg had been added to the tray, but the peanut butter was still on the tray. Officer Tillery then put the tray on his desk, attempted to scrape off the peanut butter with a spork, and returned the tray to Plaintiff. Plaintiff washed off the hard-boiled egg before eating it. Officer Tillery advised Plaintiff that he noted this in the Food Service Evaluator that goes to the deputy warden.

         Plaintiff alleges that on 17 out of 39 days, his meal tray was incorrectly prepared, handled or delivered to Plaintiff. On January 8, 2017, Plaintiff suffered from his “first” allergic reaction while eating his breakfast. Plaintiff's noticed it was becoming difficult to breathe through his nasal passageway, his face began to itch, and his eyebrows and lips started to swell. Plaintiff knew he was “having a mild reaction.” Plaintiff yelled out of his cell to CO Smalley and asked if peanut butter was on the tray that morning. She responded that peanut butter was not on regular trays but that it was on the vegetarian trays. Upon inspection of his food tray, he discovered peanut butter smeared on the inside of the food slot and along the outside edges of the tray. CO Smalley stayed at Plaintiff's door to make sure he “would not go into shock.” Plaintiff did not go into shock, but he had a “mild reaction.” Sgt. Tillery and CO Smalley assured Plaintiff that the incident would go into the Food Service Evaluation for January 8, 2017.

         On January 9, 2017, Mr. Randolph stated that he had already verified Plaintiff's allergy, sent a memo to all cell house staff, and contacted Aramark Food Service Director Darrell Fromm and advised him that he needed to take action to prevent such from happening again. On January 12, 2017, Mr. Fromm answered Plaintiff's grievance, indicating that they had spoken to staff and the situation should be fixed. Despite that assurance, on January 23, 2017, Plaintiff was served a tray containing peanut butter, and Aramark had to provide Plaintiff with another food tray.

         On January 24, 2017, Plaintiff spoke with medical staff “in an attempt to properly document [his] allergy to peanuts, and to become aware of the intervention procedure should the need arise and to ensure that all cell house staff were made aware.” Plaintiff was told that the emergency medication is kept in the ER Bag in the clinic, and if there is a medical emergency the response nurse can call for the ER Bag. Plaintiff fears there would be a delay in treatment if he suffers another allergic reaction.

         Plaintiff alleges that all facility departments, including Corizon, Aramark and EDCF Administrative Staff, were put on notice and demonstrated deliberate indifference to his serious medical needs in violation of the Eighth Amendment. Plaintiff names multiple EDCF, Aramark and Corizon staff as defendants. Plaintiff seeks a declaratory judgment, compensatory damages, nominal damages and punitive damages.

         II. 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 an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2).

         “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (citations omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). A court liberally construes a pro se complaint and applies “less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). In addition, the court accepts all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006). On the other hand, “when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, ” dismissal is appropriate. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007).

         A pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555 (citations omitted). The complaint's “factual allegations must be ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.