United States District Court, D. Kansas
ORDER OF DISMISSAL
CROW U.S. SENIOR DISTRICT JUDGE
matter, a civil rights complaint filed under 42 U.S.C.
§1983, comes before the Court on the motion to dismiss
of defendants Jewel, Murphy, Sears, and Thompson. Plaintiff
did not file a response. Accordingly, the Court has
considered the motion under Local Rule 7.4, governing
unopposed motions and allowing them to be granted without
further notice. D. Kan. R. 7.4(b).
commenced this action while in pretrial detention at the
Allen County Jail, Iola, Kansas (ACJ). After conducting a
screening of plaintiff's amended complaint (Doc. 8), the
Court dismissed Counts 2 and 3 and directed a response on
plaintiff's claim alleging he received constitutionally
inadequate medical care for a hernia or hernias. Defendants
have filed a Martinez report (Doc. 16) and the
motion to dismiss (Doc. 17).
record before the Court shows plaintiff was booked into the
ACJ in June 2015 and reported that he had a hernia that had
been bothering him. He did not seek medical attention for
that condition, and he was released on July 22, 2015.
December 2016 and in May 2017, plaintiff was briefly detained
in the ACJ. During those periods, he sought medical attention
for other conditions but did not report a hernia.
4, 2017, plaintiff again entered the ACJ. Between July and
December 2017, he submitted a number of requests concerning
July 2017, he reported abdominal pain and a knot that was
popping out. In late July, plaintiff consulted with Becky
French, a nurse practitioner employed with Iola Family
Physicians, who goes to the jail each week to address medical
concerns of prisoners. She examined plaintiff on August 1 and
determined the hernia did not require surgery.
August, plaintiff continued to request surgery and complained
of stomach pain. On August 17, Dr. Timothy Spears examined
him. Dr. Spears did not observe any signs of a hernia but
stated that if a hernia popped out and would not go back it
would be evaluated then. Based on those findings, the ACJ did
not believe that surgery or additional procedures were
medically necessary. Plaintiff continued to complain of pain
and other difficulty caused by the hernia, filing medical
requests and a grievance seeking medical treatment.
French examined plaintiff again on September 12 and again
concluded the hernia could be managed without surgery. She
prescribed stool softeners. However, on September 28, after
performing another examination, Ms. French believed that
plaintiff should see a surgeon if approved by Sheriff Murphy.
October, plaintiff underwent an MRI, which did not reveal any
hernia. Ms. French instructed jail staff to provide stool
softeners and laxatives.
November, plaintiff asked to see Ms. French concerning his
hernia and complained of pain. In late November, plaintiff
saw a surgeon, Dr. Landau. Dr. Landau recommended surgery,
and on December 28, plaintiff underwent surgery to correct a
ruling on a motion to dismiss filed under Rule 12(b)(6) of
the Federal Rules of Civil Procedure, the Court assumes as
true all well-pleaded factual allegations and views them in
the light most favorable to the non-moving party to determine
whether they plausibly give rise to an entitlement to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The
pleading standard arising from the decisions in Bell
Atlantic Corp. v. Twombly, 550 U.S. ...