United States District Court, D. Kansas
MEMORANDUM AND ORDER
Sam A.
Crow U.S. Senior District Judge.
Plaintiff,
a state prisoner appearing pro se and in forma pauperis,
filed this civil rights complaint under 42 U.S.C. §
1983, alleging that his constitutional rights were violated
while he was housed at the Sedgwick County Jail in Wichita,
Kansas (“SCJ”). Plaintiff filed his Second
Amended Complaint (Doc. 27) (“SAC”) on June 18,
2019. This matter is before the Court for screening of
Plaintiff's SAC.
I.
Nature of the Matter before the Court
In the
single Count of his SAC, Plaintiff alleges that he was denied
proper medical care in violation of his Eighth and Fourteenth
Amendment rights. Plaintiff alleges that he arrived at the
SCJ on January 2, 2018, escorted by Deputy Jamerson. Jamerson
informed the booking deputy, staff and Defendant LPN Ireland
that Plaintiff had injuries to his head and jaw, with
stitches in both. LPN Ireland examined Plaintiff and could
see the four to five-inch indention in his skull with
stiches, and his swollen jaw with stiches. Ireland made a
call and three physicians (named as Defendants as Person 1,
2, and 3) arrived to examine Plaintiff. Throughout the
examination, Plaintiff complained of the pain in his head and
the bone fragments in his brain. He complained of pain so
severe he felt as if he was “going to die.” The
physicians left, and Defendant Ireland got on the computer
and wrote that Plaintiff “has no physical
injuries.” Ireland then had deputies escort Plaintiff
to a suicide observation cell where Plaintiff was stripped
and made to sleep on a steel bed with no mattress. On January
3, 2018, while in the suicide observation cell, Plaintiff was
seen by a mental health provider and released to an open
dorm.
Plaintiff
wrote a sick call for medical attention on January 3, 2018,
and was told by LPN Laura that he was scheduled to be seen on
January 10, 2018. Plaintiff wrote a second sick call on
January 11, 2018, and corresponded with staff regarding the
sick call request. On January 24, 2018, Plaintiff was seen by
a physician and received a head x-ray. On January 25, 2018,
Plaintiff wrote a sick call request, seeking the results of
his x-ray. On January 28, 2018, Defendant Nurse Shana
responded and scheduled Plaintiff for follow up on February
15, 2018, for a chart review, and to determine a plan. After
the failure to schedule the follow up for Plaintiff, he wrote
another sick call on February 22, 2018, and was told by
Defendant LPN Veronica that he “was scheduled for
follow up with Dr.” At the rescheduled follow up,
Plaintiff spoke with Defendant Dr. Stopp, who stated that his
x-ray came back abnormal and that Dr. Stopp was ordering a CT
scan. Approximately seven days later, Plaintiff was taken to
Wesley Hospital Imaging Center for a CT scan of his head.
Plaintiff
was sent to Dr. Moufarrj, neurologist, who advised plaintiff
that there were numerous bone fragments more than an inch and
a half long in Plaintiff's brain and that it was
Plaintiff's choice regarding whether or not to have the
surgery to remove the bone fragments. Plaintiff told Dr.
Moufarrj that he did want them removed, and Dr. Moufarrj
indicated that he would schedule Plaintiff for the surgery.
On April 3, 2018, Plaintiff advised the clinic at SCJ and CCS
that he wanted the surgery. Defendant Denise, Director of
Nursing, replied that Dr. Stopp said that it wound not be
approved to move forward with the surgery.
Plaintiff
alleges that Defendants LPN Laura, LPN Shana, LPN Jennifer,
LPN Veronica, and RN Kim, all violated his rights by their
handling of his sick call requests. Plaintiff alleges that
Defendants Denise, Director of Nursing, and Dr. Stopp,
interfered with the specialist's recommendation for
surgery and refused to approve the surgery. Plaintiff alleges
that Defendants CCS, the clinic liaison, Sgt. Tucker, Lt.
Woodson, D2134, LPN Veronica, and Sheriff Jeff Easter, all
failed to respond to Plaintiff's grievances.
Plaintiff
names as Defendants: Jeff Easter, SCJ Sheriff; Correct Care
Solutions, LLC (“CCS”); Harold Stopp, CCS doctor;
Lisa K. Ireland, CCS LPN; Denise (lnu), CCS Director of
Nursing; Persons 1, 2, and 3, CCS physicians; Laura (lnu),
CCS LPN; Shana (lnu), CCS LPN; Veronica (lnu), CCS LPN;
Jennifer (lnu), CCS LPN; Kim (lnu), CCS RN; (fnu) Woodson,
SCJ Shift Lieutenant; (fnu) Tucker, SCJ Shift Sergeant; (fnu)
(lnu) (1), Official D2134 at SCJ; and (fnu) (lnu) (2), CCS
Clinic Liaison. Plaintiff seeks declaratory relief, future
medical expenses, compensatory damages and punitive damages.
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 ...