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Hernandez v. Corizon, Inc.

United States District Court, D. Kansas

September 6, 2019

CHILO HERNANDEZ, Plaintiff,
v.
CORIZON, INC., et al., Defendants.

          MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE

          SAM A. CROW U.S. SENIOR DISTRICT JUDGE

         Plaintiff Chilo Hernandez is hereby required to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why Counts 1, 7, 8, 9 and 10 of his Complaint should not be dismissed due to the deficiencies that are discussed herein.

         I. Nature of the Matter before the Court

         Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is incarcerated at the Hutchinson Correctional Facility in Hutchinson, Kansas ("HCF"). The Court granted Plaintiff leave to proceed in forma pauperis. On June 11, 2019, the Court entered an Order (Doc. 6) staying this case pending dismissal of Plaintiff s state court action. On August 12, 2019, Plaintiff filed a Motion to Lift Stay (Doc. 7) stating that his state court case has been dismissed. The Court will grant the motion and lift the stay in this case.

         Plaintiff alleges that Defendants failed to provide him with proper medical care. Plaintiff brings his claims under § 1983 and asks the Court to exercise supplemental jurisdiction over his state law claims for medical malpractice. Plaintiff alleges that he was diagnosed with Ulcerative Colitis ("UC") in 2013 while incarcerated at the Ellsworth Correctional Facility, and was prescribed Colazal, which did not help with his symptoms. Sometime in 2014, Plaintiff was transferred to the Lansing Correctional Facility and was prescribed Sulfasalazine, which not only did not help, but made his symptoms worse. After months of pain and suffering and experiencing up to twenty bloody stools per day, Plaintiff was eventually put on a gluten-free diet, which helped with his symptoms.

         Plaintiff was transferred to El Dorado Correctional Facility and around September to December of 2016, Corizon employees took Plaintiff off of his gluten-free diet and refused to put him back on the diet. Plaintiff then began to have stomach problems, including experiencing up to eighteen bloody stools per day, mucus in his stools, irritable bowl syndrome, leaky gut, dizziness, difficulty concentrating, and undigested food in his stools. On October 31, 2016, while being seen by Dr. Sayeed, a Corizon employee, Plaintiff begged to be put back on the gluten-free diet because it was the only thing that brought some kind of relief. Dr. Sayeed told Plaintiff that he did not care, he was not going to do anything for Plaintiff, and he kicked Plaintiff out of the sick call room.

         From September to November of 2016, Dr. Harod and Dr. Sayeed, both Corizon employees, wanted to put Plaintiff back on Sulfasalazine. Plaintiff informed both doctors that he had already been prescribed this drug and it made Plaintiffs symptoms worse. Plaintiff begged both doctors to put him back on a gluten-free diet. Both doctors refused to put him on the diet and refused to prescribe a different medication. The doctors wanted to prescribe Sulfasalazine to document the "trial and failure," even though it had already been documented.

         Around December of 2016, a nurse at El Dorado Correctional Facility eventually put Plaintiff back on the gluten-free diet. Plaintiff was later transferred to HCF, and around June or July of 2017, Plaintiff was seen by Dr. Monir, who wanted to prescribe Colazal for Plaintiff. Plaintiff informed him that it did not work and asked if he could try Entyvio or Humira. Dr. Monir told Plaintiff that he had not been on Colazal before and to try it and if it did not work then they would put Plaintiff on either Entyvio or Humira. Plaintiff had no choice but to take the Colazal, knowing that it did not work before. After a couple of weeks, Plaintiff started complaining because he was having bloody stools, mucus in his stools, coughs early in the morning, black outs, difficulty concentrating and focusing, irritable bowl syndrome, and many other symptoms.

         Around September of 2017, Nancy Ciskey, ARNP, took Plaintiff off Colazal. Plaintiff asked to be prescribed Entyvio or Humira for his UC. Ciskey looked at Plaintiffs medical file and told him that there is nothing in the file about a UC diagnosis and refused to prescribe Entyvio or Humira. Plaintiff informed Ciskey of all of his symptoms, and she told Plaintiff that all she could do was to give him allergy medication (for a cold) and heart burn medication.

         During November and December of 2017, Plaintiff sought treatment and was ignored and not seen or referred to anyone for treatment. Plaintiff began having problems and started putting in sick calls from September 13, 2018 to October 23, 2018. Plaintiff was prescribed a liquid diet and was prescribed Prednisone from September 13 to September 26, 2018, which worked for about a week, and then all of Plaintiff s symptoms returned. Plaintiff began putting in more sick calls, and on October 24, 2018, he was prescribed Imodium, a medication for diarrhea, which Plaintiff declined.

         On October 29, 2018, Plaintiff was seen by ARNP Ciskey, who sent Plaintiff to the clinic for twenty-four hours to do lab work and take stool samples. On October 20, 2018, Dr. Monir took Plaintiffs vital signs and told Plaintiff he would be putting Plaintiff on medication, but he never did. Plaintiff began experiencing problems again and was seen by Ciskey on December 14, 2018. She prescribed Prednisone again, which brought Plaintiff no relief. On February 21, 2019, Plaintiff was sent to a doctor for a colonoscopy. The next day, Plaintiff was again prescribed Balsalazide/Colazal, a medication that has never worked. He took it for three days, his symptoms returned, and he asked to be taken off the medication. On March 13, 2019, Plaintiff was forced to go to the clinic by Dr. Monir, who wanted to force Plaintiff to take Colazal again. Plaintiff declined the medication. For years Plaintiff has suffered physical pain and emotional pain, and has made numerous attempts to receive treatment for his UC.

         Plaintiff names as Defendants Corizon, Inc., Doctor Monir and ARNP Ciskey. Plaintiff seeks declaratory relief, injunctive relief, 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. § l9l5A(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. § l9l5A(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 ...


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