United States District Court, D. Kansas
MEMORANDUM AND ORDER
SAM A.
CROW, U.S. Senior District Judge
Plaintiff
brings this pro se civil rights action pursuant to
42 U.S.C. § 1983. The Court granted Plaintiff leave to
proceed in forma pauperis. (Doc. 3.) The events giving rise
to Plaintiff's Complaint occurred during his
incarceration at the Lansing Correctional Facility in
Lansing, Kansas (“LCF”).
Plaintiff
alleges that he suffers from multiple orthopedic issues,
including: prior knee surgeries resulting in pins in both
knees; a broken right ankle that healed improperly; an
injured right achilles tendon; a congenital right leg
deformity; hallux valgus foot deformity; pes planus; and
painful plantar warts on the balls of each foot. Plaintiff
alleges that on July 12, 2017, he was moved from a living
unit where he was housed on a bottom bunk and bottom floor,
to a top bunk in another unit below the main level. On July
13, 2017, Plaintiff informed his treating physician that he
had been moved to a top bunk and was required to use the
stairs. Plaintiff's treating physician responded
“nope, you can't do that, not with your legs and
feet, you could fall and really hurt yourself either on those
steps or climbing in and out of that bunk especially with the
condition you're in now.” (Doc. 5, at 7.) The
treating physician put bottom bunk only and stair
restrictions in Plaintiff's treatment plan. When
Plaintiff returned to his unit, his unit counselor told him
he needed to talk to Defendant Latzke first thing in the
morning because Plaintiff could not stay in that unit with
his medical restrictions, and Latzke's “gotta move
[Plaintiff] immediately.” Plaintiff met with Latzke the
next morning, Friday July 14, and she acknowledged the
medical restrictions and said she would see what she could
do. That day, Plaintiff was scheduled for a bottom bunk, but
was scheduled to be on a unit on the second floor. Over the
weekend, Plaintiff spoke to several staff members about his
concerns regarding his upcoming move to the second floor.
On
Monday morning, during Plaintiff's scheduled move, he
explained to Lt. Coleton that he could not do stairs and
asked him to call the clinic to verify his stair restriction.
Coleton responded that it was up to the unit team manager to
determine the move. As Plaintiff was moving and going down
the stairs to retrieve more of his property from the cart, he
fell down approximately nine or ten concrete stairs, slamming
into a concrete wall resulting in serious injuries and the
aggravation/exacerbation of pre-existing injuries. Paramedics
were called and Plaintiff was taken to the Emergency Room.
Plaintiff
returned to LCF and was sent to the maximum infirmary when he
failed several concussion tests. During his infirmary stay,
Defendant Williamson directed staff to remove Plaintiff's
wheelchair and walker. Plaintiff had to walk about a quarter
of a mile from the clinic to Admissions and Discharge without
the aid of a wheelchair or walker. Upon Plaintiff's
return to the minimum facility, his treating physician
re-issued him a walker. A few days later, Defendant Gardner
stated that she knew Plaintiff's treating physician had
issued him a walker, but stated she needed “the paper
for the walker.” When Plaintiff did not know where
“the paper” was located, Gardner instructed staff
to take the walker from Plaintiff. The next day,
Plaintiff's treating physician re-issued a walker for
Plaintiff, and staff told Plaintiff the order for the walker
was noted in the computer when Gardner instructed staff to
take it away from Plaintiff.
Plaintiff
alleges in Counts I through IV, deliberate indifference to
serious medical needs in violation of the Eighth Amendment,
and a failure to protect in violation of the Eighth
Amendment. Plaintiff also alleges a violation of HIPAA laws
as Count V. Plaintiff names as defendants: Sonya Latke, UTM
at LCF; (fnu) Coleton, Shift Lieutenant at LCF; Corizon
Nurses Annette Williamson, Laura Gardner, and Michelle
Layton; John/Jane Doe prison official; and John/Jane Doe
Corizon Medical Staff. Plaintiff seeks compensatory damages,
punitive damages, and injunctive relief.[1]
Plaintiff's
allegations in Count V suggest a HIPAA violation due to
Defendant Michelle Layton's discussion of Plaintiff's
private medical information with non-medical personnel. The
Court notes that Page 11C appears to be missing from
Plaintiff's Complaint and therefore the supporting facts
for Count V are incomplete.[2] To the extent Plaintiff claims
that Layton violated the Health Insurance Portability and
Accountability Act (“HIPAA”), such a claim is not
cognizable under 42 U.S.C. § 1983. See Keltner v.
Bartz, No. 13-3022-SAC, 2013 WL 761157, at *4 (D. Kan.
Feb. 27, 2013) (stating that “all courts to consider
the matter have held that HIPAA does not create a private
right of action”) (citations omitted).
The
Court finds that the proper processing of Plaintiff's
claims cannot be achieved without additional information from
appropriate officials of LCF. See Martinez v. Aaron,
570 F.2d 317 (10th Cir. 1978); see also Hall v.
Bellmon, 935 F.2d 1106 (10th Cir. 1991). Accordingly,
the Court orders the appropriate officials of LCF to prepare
and file a Martinez Report. Once the report has been
received, the Court can properly screen Plaintiff's
claims under 28 U.S.C. § 1915.
IT
IS THEREFORE ORDERED BY THE COURT
that:
(1) The Clerk of Court shall serve Defendants Latzke and
Coleton under the e-service pilot program in effect with the
Kansas Department of Corrections (“KDOC”). The
Clerk shall send waiver of service forms to Defendants
Williamson, Gardner and Layton.
(2) Upon the electronic filing of the Waiver of Service
Executed pursuant to the e-service program, KDOC shall have
sixty (60) days to prepare the
Martinez Report. Upon the filing of that report, the
AG/Defendants shall have an additional sixty (60)
days to answer or otherwise respond to the
Complaint.
(3) Officials responsible for the operation of LCF are
directed to undertake a review of the subject matter of the
Complaint:
a. To ascertain the facts and circumstances;
b. To consider whether any action can and should be taken by
the institution to resolve the subject matter of ...