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Lax v. Corizon Medical Staff

United States District Court, D. Kansas

September 17, 2019

DALTON LAX, Plaintiff,
v.
CORIZON MEDICAL STAFF, et al., Defendants.

          MEMORANDUM AND ORDER

          SAM A. CROW, U.S. SENIOR DISTRICT JUDGE

         This matter is before the Court on Defendants' Motion for Summary Judgment for Failure to Exhaust (Doc. 34). The motion is ripe for decision as Plaintiff has failed to file a timely response. Defendants' motion is granted for the reasons stated herein.

         I. Procedural History

         Plaintiff Dalton Lax brings this pro se civil rights action under 42 U.S.C. § 1983. Although Plaintiff is currently housed at the El Dorado Correctional Facility in El Dorado, Kansas, the events giving rise to his Complaint occurred during his confinement at the Shawnee County Jail in Topeka, Kansas. Plaintiff alleges that while housed at the Shawnee County Jail he received inadequate medical care for his critical eye condition.

         The Court dismissed this action on October 17, 2018, for failure to exhaust administrative remedies. (Docs. 7, 8.) On appeal, the Tenth Circuit Court of Appeals found that Plaintiff's failure to answer the question on the form complaint about exhaustion did not make it clear that Plaintiff did not exhaust his claim, and although Plaintiff was given an opportunity to address the issue by responding to the Court's order to show cause, the Court did not acquire any additional information from the Defendants to ensure that administrative remedies were available to Plaintiff. (Doc. 16, at 5.) Therefore, the Tenth Circuit vacated this Court's dismissal and remanded for further proceedings. Id. at 6.

         On August 7, 2019, Defendants filed a Motion for Summary Judgment for Failure to Exhaust (Doc. 34). As required by Local Rule 56.1(f), Defendants provided Plaintiff, who is proceeding pro se, with the required notice regarding motions for summary judgment. (Doc. 36.) The notice was mailed to Plaintiff's address of record. (Doc. 36, at 3.) Plaintiff's response deadline was August 28, 2019. See D. Kan. Rule 6.1(d)(2) (“Responses to . . . motions for summary judgment . . . must be filed and served within 21 days.”). To date, Plaintiff has not filed a response to the motion for summary judgment. Therefore, because Plaintiff has failed to timely file a response, Defendants' statement of facts set forth in the Memorandum in Support (Doc. 35) are deemed admitted. See D. Kan. Rule 56.1(a) (“All material facts set forth in the statement of the movant will be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party.”); Fed.R.Civ.P. 56(c)(1) and (e)(2) (“If a party . . . fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion . . ..”); D. Kan. Rule 7.4.

         II. Uncontroverted Facts

         1. Plaintiff, Dalton Lax, Kansas Department of Corrections (“KDOC”) No. 94030, SNDOC No. 54014, is a 29-year old inmate currently confined by the KDOC after convictions for a variety of offenses, including attempted murder in the first degree, aggravated battery, criminal discharge of a firearm, and criminal possession of a weapon. Plaintiff was confined at Shawnee County Jail from August 26, 2016, until September 25, 2018, at which time he was transferred to El Dorado Correctional Facility after sentencing on the above convictions. (Martinez Report, Exhibit 2, Phelps Aff., ¶ 14, Doc. 29-2).

         2 . On December 6, 2018, Plaintiff was transferred to Hutchinson Correctional Facility. On June 26, 2019, he was transferred back to El Dorado Correctional Facility where he is currently incarcerated. Plaintiff's earliest release date for his present convictions is November 22, 2055. (Martinez Report, Exhibit 1, KASPER results, Doc. 29-1).

         3. Defendant Shawnee County Jail (Shawnee County Department of Corrections, Adult Detention Center) is located in Topeka, Kansas. Neither Shawnee County Jail nor its staff has authority to direct or provide medical treatment to inmates. (Martinez Report, Ex. 2, Phelps Aff., ¶¶ 2, 6, Doc. 29-2).

         4. Defendant Corizon Health Inc. is under contract to provide medical services to inmates incarcerated at Shawnee County Jail. (Id., ¶ 3).

         5. Major Timothy Phelps is Deputy Director of the Shawnee County Department of Corrections. Maj. Phelps is responsible for reviewing and maintaining inmate grievances at Shawnee County Jail. (Id.).

         6. All inmates at Shawnee County Jail are given a copy of the Inmate Handbook at intake. The Grievance Procedures and the medical services process are noted in the Inmate Handbook. (Id., ¶ 5).

         7. Inmates at Shawnee County Jail receive a medical and mental health screening upon arrival. It is the inmate's responsibility upon arrival to inform the medical staff of any medical issues or any medications the inmate has been prescribed or of any special treatments or special diets the inmate should be receiving. It is the inmate's responsibility to notify the medical staff of any medical needs he or she may have while incarcerated at Shawnee County Jail by submitting an Inmate Medical Request Form. Medical Request forms may be obtained from jail staff and when completed are placed by the inmate in a secure Medical Request Box. Medical Request forms are collected by medical staff on a daily basis and, upon ...


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