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Weiss v. Easter

United States District Court, D. Kansas

July 3, 2018

CHAD EDWARD WEISS, Plaintiff,
v.
JEFF EASTER, et al., Defendants.

          MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE

          Sam A. Crow U.S. Senior District Judge

         Plaintiff Chad Edward Weiss 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. Plaintiff is also given an opportunity to file a proper amended complaint.

         I. Nature of the Matter before the Court

         Plaintiff alleges in his Complaint that he was admitted to the Sedgwick County Detention Center on January 2, 2018, with “a life threatening brain injury with skull fragments” in his brain. Plaintiff alleges that the denial and delay in providing medical care causes him to experience excruciating pain and could cause him to “die anytime.” Plaintiff alleges emotional and mental scarring.

         Plaintiff alleges that since his arrive on January 2, 2018, he has been under the care and treatment of Correct Care Solutions. Plaintiff informed Lisa K. Ireland, LPN, that he has a “hole in [his] head with bone fragments in [his] brain” causing severe head pain and numbness on his right side and right arm. Plaintiff had stitches in his head and jaw at the time and still has a big indention on the top left section of his skull. Nurse Ireland stated that Plaintiff had no physical injuries that could be seen. (Doc. 1, at 7.)

         Plaintiff filed a “sick call” on January 3, 2018, indicating he was experiencing severe head pain, and that it was hard for him to eat due to his broken jaw. LPN Laura responded on January 5, 2018, stating that Plaintiff would see the doctor soon. Plaintiff filed another medical request on January 10, 2018, telling medical staff that he was experiencing “seriously severe head pains due to bone fragments that are more than an inch in [his] brain.” Id. RN Shana responded that Plaintiff was scheduled to see a doctor and that she did not know why Plaintiff was not seen on the 5th. Plaintiff was seen by medical staff on January 21, 2018, and they ordered an x-ray to be done on January 24, 2018, by P.A. Radiologist William Wondra.

         On January 25, 2018, Plaintiff requested the results of his x-ray. On January 27, 2018, RN Shana M. Bock responded that they had not received the x-ray but that a brief initial review of the x-ray indicated that a CT scan would be ordered. On February 9, 2018, Plaintiff was taken to Via Christi for a CT scan. On February 12, 2018, Plaintiff asked for the results of his CT scan and on February 15, 2018, RN Kim told Plaintiff that they did not have the results yet. Plaintiff asked for the results again on February 22, 2018, and was told that he had a lot of bone fragments “more than an inch” in his brain and that Dr. Harold Stopp was ordering a consultation with an outside neurologist. On April 4, 2018, Plaintiff saw Dr. Marfarrij, a brain surgeon, who asked if Plaintiff wanted surgery. Plaintiff responded that he did because he was having severe head pain, numbness on his right side and right arm, and he had “fallen out twice.” Id. at 8. Dr. Marfarrij said he would schedule Plaintiff for surgery.

         When Plaintiff returned to the Sedgwick County Jail he was taken to the clinic where he spoke with Denise, the director of nursing, and Dr. Harold Stopp, and they both told Plaintiff that they would send a referral for the surgery, but that most likely it would be denied by the Correct Care Solutions (“CCS”) Medical Director. On April 15, 2018, Plaintiff submitted another sick call to the clinic, asking about his referral for surgery. LPN Veronica told Plaintiff that it had not yet been approved because “it is an elective procedure.” Plaintiff alleges that Dr. Stopp and Denise, director of nursing, have denied him surgery to remove the bone fragments in his brain.

         Plaintiff alleges cruel and unusual punishment and deliberate indifference to his serious medical needs. Plaintiff names as defendants: Sheriff Jeff Easter; Dr. Harold Stopp; LPN Lisa K. Ireland; RN Shana M. Bock; Denise (lnu), CCS Director of Nursing; RN James P. Alexander; PA William Wondra; RN Brittany N. Frazier; LPN Molly Rosemary Beck; LPN Mary K. Smith; NP Travis Nickelson; and LPN Brian Dry. Plaintiff seeks $200, 000, 000 in 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 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 or ...


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