United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA, UNITED STATES DISTRICT JUDGE
Brian Waterman, a prisoner in the Sedgwick County Jail,
brings this § 1983 civil rights action pro se against a
number of defendants associated with the Cherokee County
Jail. Two of those defendants are Jonathan Manzer and Manzer
Family Medicine, LLC (“MFM”). Plaintiff brings
Count III against these two defendants, as well as Kristin
Wagner, who is a nurse who works at the jail. In Count III,
plaintiff claims that these three defendants showed
deliberate indifference to his serious medical needs by
failing to properly address plaintiff's weight loss and
malnutrition. The case is before the court on two motions to
dismiss, filed by defendants Jonathan Manzer and MFM (Docs.
93 and 95).
court will grant a 12(b)(6) motion to dismiss only when the
factual allegations fail to “state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Although the factual
allegations need not be detailed, the claims must set forth
entitlement to relief “through more than labels,
conclusions and a formulaic recitation of the elements of a
cause of action.” In re Motor Fuel Temperature
Sales Practices Litig., 534 F.Supp.2d 1214, 1216 (D.
Kan. 2008). The allegations must contain facts sufficient to
state a claim that is plausible, rather than merely
conceivable. Id. “All well-pleaded facts, as
distinguished from conclusory allegations, must be taken as
true.” Swanson v. Bixler, 750 F.2d 810, 813
(10th Cir. 1984); see also Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). The court construes any reasonable
inferences from these facts in favor of the plaintiff.
Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006).
as here, a plaintiff is proceeding pro se, the court
construes his pleadings liberally and holds the pleadings to
a less stringent standard than lawyer-drafted pleadings.
Erickson v. Pardus, 551 U.S. 89, 94 (2007);
McBride v. Deer, 240 F.3d 1287, 1290 (10th Cir.
2001). Liberal construction does not, however, “relieve
the plaintiff of the burden of alleging sufficient facts on
which a recognized legal claim could be based.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). The court need not accept as true those allegations
that state only legal conclusions. See Id. at 1110.
plaintiff's allegations in Count III relate to actions of
defendant Wagner-not defendants Manzer and MFM. Plaintiff had
an ongoing dispute with defendant Wagner about the amount of
food he received in jail and how the lack of nutrition was
impacting his health. But plaintiff does mention both moving
defendants briefly. He states that “on March 7, 2018 I
was sent to doctor Jonathan Manzer, at Manzer Health
Clinic. Captain Michelle Tippie stated Dr. Manzer concurred
with APRN Wagner's treatment, and medical care.”
(Doc. 53, at 9.) Plaintiff does not specifically allege that
defendant Manzer was acting as a state actor when he saw
plaintiff, but defendant Manzer has not contested his
treatment as a state actor (and in fact seeks Eleventh
Amendment immunity), so the court accepts for purposes of
this Memorandum and Order that he was. See West v.
Atkins, 487 U.S. 42, 54-57 (1988) (holding that a
private doctor under contract to treat prisoners acted under
color of state law).
allegations against both defendant Manzer and MFM are
insufficient for a number of independent reasons. One reason
is that plaintiff has failed to adequately allege personal
participation in a constitutional violation on the part of
either defendant. Plaintiff complains that he has received
constitutionally-deficient medical care from defendant
Wagner. But he only alleges that on one occasion, he was sent
to MFM and that defendant Manzer concurred with defendant
Wagner's treatment. These allegations are insufficient to
adequately allege personal participation, and at least with
respect to MFM, appear only to seek to hold the company
liable under a theory of respondeat superior. This is
impermissible in a § 1983 action such as
plaintiff's. Duffield v. Jackson, 545 F.3d 1234,
1239 (10th Cir. 2008); Gagan v. Norton, 35 F.3d
1473, 1476 n.4 (10th Cir. 1994). Individual liability under
§ 1983 must be based on personal involvement.
Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir.
2009). “[P]ersonal participation in the specific
constitutional violation complained of is essential.”
Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir.
2011) (citation omitted). A defendant cannot be held liable
for money damages in a civil rights action based solely upon
the theory of respondeat superior. Trujillo v.
Williams, 465 F.3d 1210 (10th Cir. 2006); Mitchell
v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996);
Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993).
The defendant must be actually involved in the constitutional
violation. Plaintiff has failed to allege that either
defendant Manzer or MFM had any personal involvement in a
denial of proper medical treatment, and dismissal of both
parties is appropriate.
any claim against defendant Manzer in his official capacity,
the court also dismisses this claim. “[A] judgment
against a public servant in his official capacity imposes
liability on the entity he represents, provided, of course,
the public entity received notice and an opportunity to
respond.” Brandon v. Holt, 469 U.S. 464,
471-73 (1985) (internal quotation marks and citation
omitted). But to state a claim against the public employer,
there must be an underlying violation by the employee.
See Estate of Larsen ex. rel Sturdivan v.
Murr, 511 F.3d 1255, 1264 (10th Cir. 2008)
(“[W]ithout the predicate constitutional harm inflicted
by an officer, no municipal liability exists[.]”)
(citation omitted). The court assumes, for purposes of this
motion, that defendant Manzer had a public employer.
establish a constitutional violation for medical treatment,
plaintiff must allege deliberate indifference to his serious
medical needs. Deliberate indifference to a prisoner's
serious medical needs contains both a subjective and an
objective component. See Sealock v. Colorado, 218
F.3d 1205, 1209 (10th Cir. 2000). For the objective
component, this court requires that the medical need be
sufficiently serious, which is a category that has been
defined to include a medical need “that has been
diagnosed by a physician as mandating treatment or one that
is so obvious that even a lay person would easily recognize
the necessity for a doctor's attention.” Hunt
v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999)
(internal quotations omitted).
the subjective component, a plaintiff “must establish
that defendant(s) knew he faced a substantial risk of harm
and disregarded that risk, by failing to take reasonable
measures to abate it.” Rauh v. Ward, 112
Fed.Appx. 692, 694 (10th Cir. 2004) (citing Hunt,
199 F.3d at 1224). A plaintiff need not show that a prison
official acted or failed to act believing that harm actually
would occur to an inmate; rather, “it is enough that
the official acted or failed to act despite his knowledge of
a substantial risk of serious harm.” Farmer v.
Brennan, 511 U.S. 825, 842 (1994). Moreover, whether a
prison official had the requisite knowledge of a substantial
risk is a question of fact, and a factfinder may conclude
that a prison official knew of a substantial risk from the
very fact that the risk was obvious. Id.
alleges that defendant Manzer saw him once, on March 7, 2018.
The complaint does not state defendant's weight on that
date-only that plaintiff weighed 171 pounds on February 1,
2018; 166 pounds on February 8, 2018; 152 pounds in May; and
142 pounds in October 2018. There are no allegations that
would support a finding of either objective or subjective
deliberate indifference by defendant Manzer in March 2018,
when he saw plaintiff once and “concurred with APRN
Wagner's treatment, and medical care.” Based on the
allegations in plaintiff's complaint, the majority of his
weight loss came sometime after he saw defendant Manzer.
There are no allegations that would suggest that plaintiff
had an obvious condition or that defendant Manzer should have
known that plaintiff faced a substantial risk of harm on
March 7, 2018. Without an underlying constitutional
violation, an official capacity claim is not viable.
court need not address the other arguments of defendants, as
the reasons stated above are independently sufficient to
dismiss the claims against them.
IS THEREFORE ORDERED that defendants Jonathan
Manzer's and Manzer Family Medicine, LLC's motions to
dismiss (Docs. 93 and 95) are granted. These two parties are
dismissed from the case.
IS FURTHER ORDERED that defendants' motion to
strike surreply (Doc. 120) is denied as moot. Although
plaintiff did not seek leave to file a surreply or otherwise
justify the need for one, plaintiff's surreply ...