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Ellison v. English

United States District Court, D. Kansas

May 25, 2018

WYATT J. ELLISON, Plaintiff,
N. C. ENGLISH, et al., Defendants.


          SAM A. CROW U.S. Senior District Judge

         Plaintiff Wyatt J. Ellison, a federal prisoner at the U.S. Penitentiary in Leavenworth, Kansas (“USP-Leavenworth”), brings this prosecivil rights action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). He proceeds in forma pauperis. For the reasons discussed below, Plaintiff is ordered to show cause why his complaint should not be dismissed.

         I. Nature of the Matter before the Court

         Mr. Ellison's complaint (Doc. 1) and accompanying Memorandum of Law (Doc. 2) allege the defendants were deliberately indifferent to Plaintiff's medical needs in violation of the Eighth Amendment. Plaintiff names as defendants N.C. English, Warden of USP-Leavenworth; J. Blevins, Medical Administrator, USP-Leavenworth; Dr. Quyam, optometrist at USP-Leavenworth; Dr. Grossman, Clinical Director, USP-Atwater; and Dr. Aulepp, doctor at USP-Leavenworth.

         According to the complaint, Plaintiff suffers from a tear duct problem with one of his eyes. While housed at USP-Atwater in California, he had five surgical procedures on the eye related to the insertion of a Jones tube. The procedures were performed by Dr. Grossman. After the second or third surgery, Plaintiff developed an infection in the eye. Dr. Grossman prescribed Tobramycin and Dexamethasone drops to treat the infection. Plaintiff used the eye drops for three years, as directed by Dr. Grossman. During that time, Plaintiff continued to experience swelling, redness, pain, sensitivity to light, excessive tearing, blind spots, and infections in the eye.

         Plaintiff was transferred to USP-Leavenworth at some point. There, he was initially seen by Dr. Aulepp who referred him to Dr. Quyam, an optometrist. Dr. Quyam discontinued the Tobramycin/Dexamethasone drops and tested Plaintiff for glaucoma. Dr. Quyam told Plaintiff it was “unheard of” for a patient to use that eye drop for three years. He determined Plaintiff has glaucoma and optic nerve damage, which he said could have been caused by the drops.

         After seeing Dr. Quyam several times, Dr. Quyam referred Plaintiff to an ophthalmologist to evaluate surgical treatment options due to ongoing problems with the Jones tube. The Utilization Review Committee at USP-Leavenworth denied the referral, noting Plaintiff's history of multiple surgeries with minimal improvement and finding the referral was “not clinically indicated at this time.” Doc. 2, at 16. The Committee directed Plaintiff to “follow-up as needed” with the health services staff at USP-Leavenworth based on the recommendations of Dr. Quyam. Id.

         Plaintiff alleges he has suffered loss of vision and is now at risk for losing his eye.

         Plaintiff claims Defendants have been deliberately indifferent toward his medical needs resulting in the violation of his rights under the Eighth Amendment. He seeks monetary damages of $5, 000, 000.

         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 enough to raise a right to relief above the speculative level” and “to state a claim to relief that is plausible on its face.” Id. at 555, 570.

         The Tenth Circuit Court of Appeals has explained “that, to state a claim in federal court, a complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant did it; how the defendant's action harmed [the plaintiff]; and, what specific legal right the plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). The court “will not supply additional factual allegations to round out a plaintiff's complaint ...

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