United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW, U.S. SENIOR DISTRICT JUDGE
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
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
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.
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.
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).
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).
Defendant Corizon Health Inc. is under contract to provide
medical services to inmates incarcerated at Shawnee County
Jail. (Id., ¶ 3).
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
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).
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 ...