United States District Court, D. Kansas
MEMORANDUM AND ORDER
Crow U.S. Senior District Judge
brings this pro se civil rights action under 42 U.S.C. §
1983, alleging he was denied proper medical care while
incarcerated at the Hutchinson Correctional Facility in
Hutchinson, Kansas. The Court granted Plaintiff leave to
appear in forma pauperis. The Court entered a Memorandum and
Order and Order to Show Cause (Doc. 4) (“MOSC”)
granting Plaintiff the opportunity to show good cause why his
Complaint should not be dismissed due to the deficiencies set
forth in the MOSC, or to file an amended complaint to cure
those deficiencies. This matter is before the Court for
screening of Plaintiff's Amended Complaint (Doc. 5). The
Court set forth the screening standards in the MOSC.
Court found in the MOSC that Plaintiff's allegations do
not show a complete lack of medical care, but rather show
Plaintiff's disagreement regarding the proper course of
treatment. See Gee v. Pacheco, 627 F.3d 1178, 1192
(10th Cir. 2010) (noting that plaintiff's allegations
indicate not a lack of medical treatment, but a disagreement
with the doctor's medical judgment in treating a
condition with a certain medication rather than others). The
Court found that Plaintiff's allegations of denial of
medical care were subject to dismissal for failure to state a
claim. The Court found that: Plaintiff's allegations
indicate that he has been furnished medical care during the
relevant time frame; that his claims amount to a difference
of opinion with the treatments he has been provided by
medical staff; the allegations are nothing more than a lay
person's disagreement with the medical treatment of his
symptoms by medical professionals; and the allegations do not
rise to the level of a claim of cruel and unusual punishment
under the Eighth Amendment, and are, at most, grounds for a
negligence or malpractice claim in state court.
Amended Complaint fails to cure the deficiencies set forth in
the MOSC. Plaintiff alleges that on March 28, 2017, he was in
the Central Unit Gym playing ping-pong when he slipped in a
puddle of water and fell into another inmate causing that
inmate to fall on top of Plaintiff. Plaintiff tried to
continue his game, but sharp and throbbing pain started
shooting through his left shoulder. Plaintiff went to the
Officer's desk and asked Officer Foster to call the
clinic. Officer Foster refused, stating that he would not
call the clinic because Plaintiff “was not going to
sue” and that Plaintiff knew the water was on the
floor. There was no “wet floor sign” indicating
where the water was located. Plaintiff alleges that Officer
Foster's “negligent behavior [in] refusing to call
medical left the medical staff with the impression that [he]
wasn't injured badly.” (Doc. 5, at 3.) Plaintiff
alleges that he had to make five “sick calls”
before he received surgery for his shoulder on December 27,
2017. Plaintiff alleges that the delay in receiving his
surgery violated his Eighth Amendment rights.
acknowledges that he filled out a sick call on March 28,
2017, and was seen by medical staff on March 29, 2017, and
given ibuprofen for pain. Plaintiff filled out another sick
call on March 31, 2017, and was seen by medical staff on
April 1, 2017. He filled out another sick call on April 1,
2017, asking for an MRI, and another on April 9, 2017, and
was seen by medical staff on April 10, 2017. From April 10,
2017, to May 9, 2017, Plaintiff “was doing as directed
by the clinic staff” and he informed them that he did
not want anymore shots in his shoulder. Id. at
Court finds that Plaintiff's Amended Complaint fails to
state a claim for the reasons set forth in the Court's
MOSC. The Eighth Amendment guarantees a prisoner the right to
be free from cruel and unusual punishment.
“[D]eliberate indifference to serious medical needs of
prisoners constitutes the ‘unnecessary and wanton
infliction of pain' . . . proscribed by the Eighth
Amendment.” Estelle v. Gamble, 429 U.S. 97,
104 (1976) (citation omitted).
difference of opinion between the inmate and prison medical
personnel regarding diagnosis or reasonable treatment does
not constitute cruel and unusual punishment. See
Estelle, 429 U.S. at 106-07; see also Coppinger v.
Townsend, 398 F.2d 392, 394 (10th Cir. 1968)
(prisoner's right is to medical care-not to type or scope
of medical care he desires and difference of opinion between
a physician and a patient does not give rise to a
constitutional right or sustain a claim under § 1983).
in providing medical care does not violate the Eighth
Amendment, unless there has been deliberate indifference
resulting in substantial harm. Olson v. Stotts, 9
F.3d 1475 (10th Cir. 1993). In situations where treatment was
delayed rather than denied altogether, the Tenth Circuit
requires a showing that the inmate suffered
“substantial harm” as a result of the delay.
Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir.
2000) (citation omitted). “The substantial harm
requirement ‘may be satisfied by lifelong handicap,
permanent loss, or considerable pain.'” Mata v.
Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quoting
Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir.
2001)). Plaintiff's allegations do not rise to the level
of a claim of cruel and unusual punishment under the Eighth
Amendment, and are, at most, grounds for a negligence or
malpractice claim in state court.
IS THEREFORE ORDERED THAT this matter is
dismissed for failure to state a claim.
IS SO ORDERED.
 Plaintiff's original Complaint
also states that Plaintiff received an x-ray of his shoulder,
an MRI, and physical therapy. He was also seen by a
specialist who stated that Plaintiff needed ...