United States District Court, D. Kansas
CROW, U.S. DISTRICT SENIOR JUDGE
case is before the court to screen plaintiff's pro
se amended complaint pursuant to 28 U.S.C. §§
1915 and 1915A. The court applies the standards discussed in
the court's prior screening order in this case. Doc. No.
4, pp. 1-3.
The amended complaint
amended complaint names the following defendants: Michael
Sutton; Tina Miller; Sarah Shaft; David Wallace; Lou Miller;
Jamie Nutz; Austin Baker; and Maggie K-9. Plaintiff
alleges that, as he was attempting to surrender to law
enforcement authorities, defendant Baker ordered a police dog
(“Maggie K-9”) to “chew” plaintiff
and allowed the dog to bite plaintiff for 60 to 90 seconds
while plaintiff pleaded to have the dog relent. Plaintiff
alleges dog bites to the foot, thigh, hand and arm. Plaintiff
claims that needed x-rays were denied by a nurse
practitioner, defendant Lou Miller. He further claims that
doctor-prescribed antibiotics were denied for eight days by
Saline County Sheriff's Office members David Wallace,
Michael Sutton, Sarah Shaft and Jamie Nutz. He claims that
this, and the denial of his requests to take a shower, caused
plaintiff to develop infection in his wounds which has
resulted in pain and disability.
42 U.S.C. § 1983 permits an injured person to seek
damages against an individual who has violated his or her
federal rights while acting under color of state law.
Cillo v. City of Greenwood Village, 739 F.3d 451,
459 (10th Cir. 2013). Plaintiff does not allege
facts showing that defendant Lou Miller, a nurse
practitioner, was a person who could be considered as acting
on behalf of a state governmental authority. Plaintiff also
does not allege facts showing that defendant Lou Miller
participated in the violation of constitutional rights. As a
pretrial detainee, plaintiff has a constitutional right to
have his serious medical needs attended to without deliberate
indifference. See Estate of Booker v. Gomez, 745
F.3d 405, 429 (10th Cir. 2014). The court believes
that the denial of doctor-prescribed antibiotics for dog
bites states a plausible claim for a constitutional
violation. See Cadwallader v. Devlin, 155 F.Supp.3d
175, 187 (N.D.N.Y. 2016). But, plaintiff does not allege
facts plausibly showing that the denial of x-rays amounted to
reckless or intentional indifference to a serious medical
need. See Estelle v. Gamble, 429 U.S. 97, 107
(1976)(denial of x-ray only a matter of medical judgment);
Lamar v. Boyd, 508 Fed.Appx. 711, 714
(10th Cir. 2013)(refusal of request for an x-ray
is at most negligent, not deliberately indifferent);
El'Amin v. Pearce, 750 F.2d 829, 832-33
(10th Cir. 1984)(same).
also does not allege facts showing that the failure to take
x-rays was a breach of duty to provide reasonable care or a
cause of injury to plaintiff, as is necessary to bring a
negligence claim under state law. See Shirley v.
Glass, 308 P.3d 1, 6 (Kan. 2013).
plaintiff does not allege facts describing defendant Tina
Miller's actions to cause a constitutional violation or
an injury to plaintiff. As the court stated in the prior
screening order, a complaint alleging that several defendants
violated § 1983 must plainly allege exactly who, among
the many defendants named, did what to plaintiff, with enough
detail to provide each individual with fair notice as to the
basis of the claims against him or her. See Robbins v.
Okla. ex rel. Dep't of Human Servs., 519 F.3d 1242,
1248-1250 (10th Cir. 2008). Also, plaintiff may not bring a
claim against a dog. See Jones v. Fransen, 857 F.3d
843, 857-58 (11th Cir. 2017)(dismissing negligence
claim - under Georgia law - against a police dog because a
dog is not a “person”).
court directs that the Clerk of the Court prepare waiver of
service forms pursuant to Rule 4(d) of the Federal Rules of
Civil Procedure to be served upon Michael Sutton; Sarah
Shaft; David Wallace; Jamie Notz; and Austin Baker. Plaintiff
has the primary responsibility to provide sufficient name and
address information for the waiver of service forms or for
the service of summons and complaint upon a defendant. See
Nichols v. Schmidling, 2012 WL 10350 *1 (D. Kan.
1/3/2012); Leek v. Thomas, 2009 WL 2876352 *1 (D.
Kan. 9/2/2009). So, plaintiff is warned that if waiver of
service forms or summons cannot be served because of the lack
of name and address information, and correct address
information is not supplied to the Clerk of the Court,
ultimately the unserved parties may be dismissed from this
action. See FED.R.CIV.P. 4(m).
court shall dismiss defendants Lou Miller and Tina Miller
from this case unless plaintiff shows cause by June 11, 2019
why he has stated a claim against these defendants or files a
second amended complaint by June 11, 2019 which states a
plausible claim against them. Maggie K-9 shall be dismissed.
IS SO ORDERED.