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Lynn v. Cline

United States District Court, D. Kansas

May 7, 2019

PATRICK C. LYNN, Plaintiff,
v.
SAMMY CLINE, et al., Defendants.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA U.S. DISTRICT JUDGE

         Plaintiff brings this pro se civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff has paid the filing fee in full. At the time of filing, Plaintiff was incarcerated at the El Dorado Correctional Facility-Central in El Dorado, Kansas (“EDCF”). This matter comes before the Court for screening of Plaintiff's Complaint (Doc. 1) and Supplemental Sworn Complaint (Doc. 9), and on Plaintiff's “Motion to Reopen McCurrie Suit & Consolidate Into Cline Suit With Request for Video-Teleconference Hearing” (Doc. 12), Motion for Appointment of Counsel (Doc. 13), and “Plaintiff's Motion for Leave to File Comprehensive Amended Sworn Complaint Incorporating McCurrie Suit & up to 5-3-19” (Doc. 14).

         I. Nature of the Matter before the Court

         Plaintiff alleges in his Complaint that EDCF's transportation strip-out procedures require him to squat and bend over despite his disabilities. Plaintiff alleges that his disabilities are being “maliciously discriminated against in violation of the ADA and R/A, ” and he seeks injunctive relief “for being physically unable to squat or bend over.” (Doc. 1, at 3.) Plaintiff alleges that he is “imminently subjected to irreparable injury or worse” unless the Court grants an injunction barring prison officials from any use of force upon Plaintiff for his refusal to squat and/or bend over during the search process. (Doc. 4, at 1.)

         Plaintiff alleges that the Kansas Department of Corrections (“KDOC”) requires inmates to squat and bend over when coming and going from a facility. Plaintiff alleges that he has bona fide disabilities that should exempt him from the squat and bend requirement. Plaintiff alleges that he has always been exempt from this practice, until he returned to EDCF on September 13, 2018. Plaintiff alleges that EDCF staff started the abuses on October 12, 2018, and he has been maliciously discriminated against by defendants on 8 out of 9 transportation events. He claims he was exempted from the squat and bend requirement on October 3, 2018, when he was transported to the Leavenworth County Courthouse. He claims he was denied outside medical and court appearances on October 12th and 16th, November 19th, 20th, and 29th, and December 10th and 27th.

         Plaintiff alleges that he is physically unable to squat or bend over without falling and incurring great pain and serious injury. Plaintiff alleges that he has been punished with disciplinary reports for refusing to squat and bend over. Plaintiff alleges that he has submitted numerous grievances seeking a waiver “per the ADA laws.” (Doc. 1, at 8.) Plaintiff alleges that he has degenerative spinal disc disease, which causes him debilitating back spasms and causes his legs and hips to go numb, causing him to fall and sustain injuries. Plaintiff also alleges that he has massive vascular blockages which cause his legs and hips to go numb, causing him to fall and sustain injuries. Plaintiff alleges that he has also had two major operations for a torn ACL and meniscus, requiring him to wear braces on both knees. Plaintiff alleges he has a “medically issued” cane, and he uses a wheelchair when he leaves his segregation cell.

         Plaintiff alleges that EDCF security staff claim that to obtain a waiver of the squat and bend procedure, all that is needed is a medical waiver. See McCoy v. Heimgartner, No. 17-3139-JWB, 2019 WL 121117, at *7-8 (D. Kan. Jan. 7, 2019) (finding no Fourth Amendment violation for squat and bend procedure where “although Plaintiff claimed that he had a back injury, there is no evidence to support a finding that Plaintiff had a medical restriction regarding his ability to squat”). Plaintiff alleges that EDCF medical staff defendants claim they have “zero authority” to issue medical orders to waive the squat and bend procedures, claiming medical cannot overrule security.

         Plaintiff also alleges that although the Lansing Correctional Facility (“LCF”) and the Hutchinson Correctional Facility (“HCF”) allow his heart medication to be KOP (“kept on person”), EDCF refuses. In addition, Plaintiff alleges that he refuses his medication because they will not allow him to identify the medication prior to taking it. He alleges that his medication is put into a cup of water and he is expected to drink the “mush.” (Doc. 1, at 7.) Plaintiff alleges that surgeries have been cancelled in retaliation for his First Amendment activities, and he is being denied a handicap-equipped cell with grab bars.

         In his Complaint, Plaintiff names thirty defendants from EDCF, four KDOC defendants, the Kansas Governor and Kansas Governor-Elect, the State of Kansas, Corizon Health, the Corizon Health Regional Director, and the LCF staff attorney. Plaintiff seeks injunctive relief waiving the squat and bend requirement and enforcing ADA laws, damages in excess of $75, 000, and “referral to Federal Grand Jury for Federal criminal law violations as provided by 18 U.S.C. § 3332(a).” (Doc. 1, at 5.)

         Plaintiff was transferred to HCF on January 23, 2019. (Doc. 6.) On February 25, 2019, Plaintiff filed a “Supplemental Sworn Complaint” (Doc. 9) “for continuing constitutional torts & ADA violations & actionable criminal abuses under K.S.A. 21-5105, & invoking 18 U.S.C. § 3332(a) to appear before the KS Federal Court's Grand Jury.” Plaintiff's supplemental complaint alleges violations occurring at HCF since his transfer there on January 23, 2019. Plaintiff's supplemental complaint adds twenty-seven defendants from HCF, including “all former & current HCF SST's (Special Security Team) Members since 1-1-15.” Plaintiff also adds Corizon medical staff, KDOC staff, Aramark Food Service staff, state officials, and the U.S. Attorney for the District of Kansas.

         Plaintiff alleges that HCF SST's and security staff are engaging in “beat-up squads” and are “beating prisoners to death in the Segregation units.” Plaintiff also alleges that he has been denied his proper medical diet since he returned to HCF on January 23, 2019, and has been subjected to a “reduced protein/cold lunch diet of P-Nut Butter or tuna (from 4 oz's to 3 oz's)” and he is “routinely served P-Nut Butter 6x per week despite a limit of P-Nut Butter 3x per week.” (Doc. 9, at 5.).

         The only defendant Plaintiff mentions in the body of his supplemental complaint is CSI Rodriguez-Wilkerson, who he claims prohibits subordinate staff from calling medical emergencies or summoning medical staff “when prisoners with M/H issues are suicidal” and he taunts “prisoners with M/H issue to kill themselves.” (Doc. 9, at 6.) Plaintiff claims that he had a heart attack on January 24, 2019, Rodriguez-Wilkerson refused to seek medical attention for two hours, and Plaintiff was only able to obtain medical attention at the shift change and was “thereafter taken to a local hospital by Ambulance.” Plaintiff attaches multiple exhibits and states that he is incorporating them into his supplemental complaint. The exhibits include HCF internal grievance documents and reference: an incident on January 23, 2019, at HCF where Plaintiff alleges he did not receive proper medical care in response to his chest pains; an incident on January 24, 2019, in which an inmate in a nearby cell was suffering in response to being sprayed with chemicals, tasered and beat by SST guards; his January 24, 2019, incident involving Rodriguez-Wilkerson; an incident on January 29, 2019, at HCF where nurses did an EKG and took his blood pressure but did not do a blood test for troponin levels; the failure of medical staff to properly address complications from his January 25, 2019 heart catheter; and the failure to comply with his renal/increased-protein medical diet since his transfer to HCF on January 23, 2019.

         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 construct a legal theory on a plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citation omitted).

         The Tenth Circuit has pointed out that the Supreme Court's decisions in Twombly and Erickson gave rise to a new standard of review for § 1915(e)(2)(B)(ii) dismissals. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (citations omitted); see also Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). As a result, courts “look to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief.” Kay, 500 F.3d at 1218 (citation omitted). Under this new standard, “a plaintiff must ‘nudge his claims across the line from conceivable to plausible.'” Smith, 561 F.3d at 1098 (citation omitted). “Plausible” in this context does not mean “likely to be true, ” but rather refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of ...


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