United States District Court, D. Kansas
GARY L. BRYANT, Plaintiff,
BUTLER COUNTY DETENTION FACILITY, Defendant.
Crow, U.S. District Senior Judge
case is before the court to consider plaintiff's
responses to this court's order to show cause why this
case should not be dismissed for failure to state a claim
pursuant to 28 U.S.C. §§ 1915(e)(2)((B)(ii) and
1915A(b)(1). As noted in the show cause order, the court
gives a liberal construction to plaintiff's pleadings.
December 8, 2016, plaintiff filed an amended complaint on
forms for bringing an action under 42 U.S.C. § 1983.
Doc. No. 3. The amended complaint names the Butler County
Detention Facility (BCDF) as the sole defendant. The amended
complaint alleges that employees at the BCDF neglected to
follow up with treatment for a serious injury to
plaintiff's hand causing plaintiff severe physical pain
and suffering as well as mental anguish and permanent
deformity. On pages 2 and 3 of the amended complaint,
plaintiff asserts negligence by BCDF personnel. The
court's show cause order (Doc. No. 7), citing Daniels
v. Williams, 474 U.S. 327 (1986), noted that a charge of
negligence does not state a claim for a violation of the
Constitution or federal law that may be litigated under 42
U.S.C. § 1983.
has filed multiple responses to the show cause order. These
responses provide more factual background. But, they do not
describe facts, as opposed to bare assertions, showing a
plausible claim of deliberate indifference to a serious
medical need, as necessary to allege a constitutional
violation for which plaintiff may recover under § 1983.
Nor does plaintiff assert a claim against a person who may be
sued under § 1983.
has submitted copies of medical records documenting two
visits with medical staff on October 28, 2016 and November
18, 2016. Doc. No. 9. The records show that plaintiff was
injured on October 10, 2016 when his vehicle rolled over
while he was being chased by police. Plaintiff was treated at
an emergency room on that day. A splint was applied to his
right hand to care for a fracture or dislocation. The court
assumes that plaintiff was incarcerated at BCDF on or about
October 10, 2016.
October 28, 2016 medical visit occurred with an outside
source (“The Hand Center, P.A.”) while plaintiff
was in custody at BCDF. The records indicate that
plaintiff's hand was not discolored. They also show that
he was not complaining of loss of nerve or motor function,
but that there was some pain and dysfunction. X-rays showed a
fracture. It was suggested that plaintiff try some time
“out of cast” and try to establish a
“gentle range of motion.” Plaintiff was agreeable
to this. A follow-up visit was suggested in 8 to 10 days.
set for November 8, 2016 was cancelled, but plaintiff was
seen again at the hand clinic on November 18, 2016. Plaintiff
reported that he was about the same and still had some
symptoms. The color and appearance of his hand was
appropriate, but there was still some tenderness, stiffness
and lack of strength. It was suggested that plaintiff squeeze
warm water from a sponge or washcloth as an exercise.
Otherwise, plaintiff was released to regular activities with
follow-up as needed.
January 25, 2017, plaintiff asserted to the court that he did
not get follow-up visits that were ordered by doctors. Doc.
No. 8. On February 7, 2017, plaintiff asserted the staff at
BCDF denied several requests he made for medical treatment
“placing my . . . condition in a permanent state of
undue trauma and disfigurement. Causing excessive pain and
suffering along with substantially high future medical
expense, in repairing the damage.” Doc. No. 11. It
appears that plaintiff was released from BCDF on or about
March 9, 2017, but later returned to custody.
Failure to state a claim
allege a constitutional violation for which he may recover
under § 1983, plaintiff must allege facts describing a
deliberate indifference to a serious medical need. See
Estelle v. Gamble, 429 U.S. 97, 104 (1976)(applying
standard to treatment of prisoners post-conviction);
Olsen v. Layton Hills Mall, 312 F.3d 1304, 1315
(10th Cir. 2002)(applying the same standard to the
treatment of pretrial detainees). This can result from
intentionally denying or delaying access to medical care.
Estelle, 429 U.S. at 104-05. But, proof of
inadvertence or negligence is not sufficient to establish a
valid claim. Id. at 105-06; Self v. Crum,
439 F.3d 1227, 1233 (2006). Further, the Constitution is not
violated by a person who simply resolves “the question
whether additional diagnostic techniques or forms of
treatment is indicated.” Estelle, 429 U.S. at
107. A plaintiff must show the defendant knew the plaintiff
“faced a substantial risk of harm and disregarded that
risk ‘by failing to take reasonable measures to abate
it.'” Hunt v. Uphoff, 199 F.3d 1220, 1224
(10th Cir. 1999)(quoting Farmer v.
Brennan, 511 U.S. 825, 847 (1994)). A disagreement
between an inmate and medical personnel over the course of
treatment, without more, does not give rise to a deliberate
indifference claim. Gee v. Pacheco, 627 F.3d 1178,
1192 (10th Cir. 2010).
plaintiff's responses to the show cause order, plaintiff
has failed to allege facts showing deliberate indifference as
opposed to negligence. Plaintiff does not plausibly describe
a situation in which persons working for BCDF knew plaintiff
faced a substantial risk of harm and disregarded that risk by
failing to take reasonable measures to abate it. Plaintiff
does not assert facts showing that BCDF personnel knew
plaintiff was suffering severe pain or the possibility of
permanent disfigurement. The medical records submitted to the
court do not indicate as much. Nor do they indicate that
follow-up visits ordered by doctors were disregarded. At
most, what plaintiff has alleged is that jail staff did not
recognize or appreciate the severity of plaintiff's hand
condition in the same way as plaintiff. This might describe
negligence, but it does not describe deliberate indifference
to a serious medical need.
Self, the court stated that a plausible claim may be
described by facts showing that an obvious need for treatment
was ignored. 439 F.3d at 1232. This could happen when a BCDF
health officer or jail authority: 1) recognized the need for
further medical treatment, such as delicate hand surgery
requiring a specialist, and declined or refused to provide a
referral; 2) failed to treat a condition, such as a
gangrenous hand or serious laceration, that would have been
obvious even to a layperson; or 3) completely denied care
though presented with recognizable symptoms which potentially
create a medical emergency. Id.; see also,
Sparks v. Singh, 690 Fed.Appx. 598 608
(10th Cir. 2017)(“absent an obvious risk,
the need for additional treatment usually is a matter of
medical judgment, which is not a predicate for deliberate
indifference”); Walker v. Hickenlooper, 627
Fed.Appx. 710, 718 (10th Cir. 2015)(affirming
dismissal of claims against some defendants when allegations
did not show need for medical care was obvious to them).
Plaintiff does not state facts plausibly showing that a
recognizable need of treatment for a serious medical issue
was known but disregarded by BCDF personnel.
addition, although it was not mentioned in the court's
show cause order, plaintiff has not named as a defendant a
suable entity that allegedly acted to violate plaintiff's
rights. Of course, a “person” liable under §
1983 may include governmental authorities which may sue or be
sued and, in some instances, corporations who are performing
governmental functions. This court, however, has held that
county detention facilities are not “persons” who
may be sued under § 1983 because they do not have the
legal capacity to sue or be sued. See Gray v.
Kufahl, 2016 WL 4613394 *4 (D.Kan. 9/6/2016)(Lyon County
Detention Center is not a suable entity); Baker v.
Sedgwick County Jail, 2012 WL 5289677 *2 n.3 (D.Kan.
10/24/2012)(Sedgwick County Jail is not a suable entity under
§ 1983); Chubb v. ...