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McDiffett v. Nance

United States District Court, D. Kansas

July 11, 2018

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



         This matter is before the Court on Plaintiff's Response (Docs. 15, 19) to the Court's Memorandum and Order and Order to Show Cause (Doc. 13) (“MOSC”). The MOSC required Plaintiff to show good cause why his claims against Defendants Jennifer Kieltyka, Lauren Gift, Beverly Jackson, Gaye Servino, Eilene (lnu), (fnu) Arol, Cris Ross and Douglas Burris, should not be dismissed for the reasons set forth in the MOSC.

         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 Amended Complaint took place during his incarceration at the Lansing Correctional Facility in Lansing, Kansas (“LCF”). The Court's previous orders set forth in detail Plaintiff's factual allegations. See Docs. 8, 13.


         1. Medical Claims

         Plaintiff's claims against Defendants Jennifer Kieltyka, Lauren Gift, Beverly Jackson, Gaye Servino, and Eilene (lnu)[1], relate to the medical care he received at LCF before and after his hernia surgery. In the MOSC, the Court found that: the claims were subject to dismissal because Plaintiff's allegations do not show a complete lack of medical care, but rather show Plaintiff's disagreement regarding the proper course of treatment; Plaintiff's allegations indicate that he has been furnished medical care during the relevant time frame, including two surgeries, doctor and nurse visits, and various medications; Plaintiff's claims amount to a difference of opinion with the treatments he has been provided by medical staff; Plaintiff's allegations are nothing more than a lay person's disagreement with the medical treatment of his symptoms by medical professionals, do not rise to the level of a claim of cruel and unusual punishment under the Eighth Amendment, and are, at most, grounds for a negligence or malpractice claim in state court. The Court directed Plaintiff to show cause why his medical claims should not be dismissed.

         In response, Plaintiff alleges that Defendant Gift, the clinic administrator, failed to respond to his grievances about the medical staff's delays in obtaining a hernia belt and a doctor's appointment. Plaintiff alleges that Defendant Gift failed to direct her subordinates to address Plaintiff's medical concerns. The claims against Defendant Gift require proof that she personally committed a constitutional violation. Keith v. Koerner, 843 F.3d 833, 837-38 (10th Cir. 2016) (citing Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”)). It is not enough that a defendant acted in a supervisory role when another defendant violated a plaintiff's constitutional rights. Keith, 843 F.3d at 838.

         Plaintiff “must show an affirmative link between [Gift] and the constitutional violation, which requires proof of three interrelated elements: (1) personal involvement; (2) causation; and (3) state of mind.” Id. (internal quotation marks omitted) (citing Schneider v. City of Grand Junction Police Dep't., 717 F.3d 760, 767 (10th Cir. 2013) (quoting Dodds, 614 F.3d at 1195)). Because Plaintiff has failed to allege any personal involvement by Defendant Gift, and failure to answer grievances does not violate constitutional rights, Plaintiff's claims against Defendant Gift are dismissed.

         Plaintiff complains about the delay in follow-up with his surgeon, delay in seeing the doctor, delay in receiving his medication, and delay in receiving a hernia belt. Delay in providing medical care does not violate the Eighth Amendment, unless there has been deliberate indifference resulting in substantial harm. Olson v. Stotts, 9 F.3d 1475 (10th Cir. 1993). In situations where treatment was delayed rather than denied altogether, the Tenth Circuit requires a showing that the inmate suffered “substantial harm” as a result of the delay. In his response, Plaintiff alleges substantial harm as a result of the delays caused by Defendants Kieltyka, Servino and Jackson.

         Plaintiff claims that Defendant Kieltyka delayed in ordering Plaintiff's hernia belt, delayed in scheduling Plaintiff to see a doctor, and relayed to Plaintiff that she had no control over KDOC staff when Plaintiff complained about their failure to follow his medical restrictions. Plaintiff alleges that Defendant Kieltyka delayed in taking action in response to Plaintiff's weight loss, merely telling Plaintiff to eat more. Plaintiff acknowledges that he eventually received a modified medical diet around July 28, 2015. Plaintiff alleges that Kieltyka failed to properly communicate the modified medical diet to Aramark, causing a delay in implementation of the diet.

         Plaintiff alleges that Defendant Kieltyka failed to assign an aid to assist Plaintiff with lifting and transporting his boxes when he was leaving the infirmary. Plaintiff alleges he was unaware of his medical restrictions and that as a result of Kieltyka's failure to assign an aid, he was forced to lift three boxes of personal property and one legal box onto the seat of his wheelchair, and then push them from the maximum facility infirmary to the medium facility. Plaintiff alleges that his wheelchair was then taken from him at the medium facility because Defendant Kieltyka failed to document that it was assigned to Plaintiff. Plaintiff alleges that this caused damage to his surgery site, caused the mesh to come loose, and ultimately required a second surgery to repair the reoccurring hernia.

         Plaintiff alleges that Defendant Servino ordered his wheelchair to be taken from him when he arrived at the medium facility, and refused to provide Plaintiff with an aid. Plaintiff also alleges that Defendant Servino failed to properly relay his medical restrictions to Defendant Nance. Plaintiff alleges despite Lt. Lamb advising Plaintiff to report to the clinic, Defendant Servino refused to allow Plaintiff to see the doctor as a medical emergency, and instead required him to submit a sick call request. Plaintiff alleges that upon her refusal, Lt. Lamb went back to the Captain's office with Plaintiff, explained the situation to the Head Unit Manager, Ms. Peavler. Peavler then contacted Gift, and Gift apparently made a call to Defendant Servino with orders to allow Plaintiff to see Dr. Saffo immediately. Dr. Saffo examined Plaintiff and admitted him to the infirmary.

         Plaintiff alleges that Defendant Jackson was responsible for ordering him a hernia belt, and when he would inquire she would respond that she either forgot to order one or she had not had time to order one. Plaintiff alleges that a hernia belt was finally ordered, but a week later it was discovered that Defendant Jackson had ordered the wrong type of hernia belt, and she ordered the correct one. Approximately two weeks later Plaintiff received the proper hernia belt. ...

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