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Sawyer v. Howard

United States District Court, D. Kansas

November 21, 2019

MYOUN L. SAWYER, Plaintiff,
LAURA HOWARD, et al., Defendants.


          Sam A. Crow, U.S. District Senior Judge

         In a prior order, this court screened plaintiff's complaint and directed plaintiff to file an amended complaint or show cause why plaintiff's complaint should not be dismissed for failure to state a claim. Doc. No. 3. Plaintiff, who is proceeding pro se, filed an amended complaint and a supplement. Doc. Nos. 4 and 5. This case is before the court to screen plaintiff's amended complaint pursuant to 28 U.S.C. § 1915A. The court shall apply the standards the court summarized in the previous screening order. Doc. No. 3, pp. 1-3.

         I. The amended complaint and supplement

         The amended complaint is written on forms for bringing an action under 42 U.S.C. § 1983. Plaintiff's claims arise from his treatment at Larned State Hospital (“LSH”) within the Sexual Predator Treatment Program (“SPTP”). Plaintiff was placed in the SPTP on August 19, 2011. Later he served a criminal sentence in the custody of the Kansas Department of Corrections. He was returned to the SPTP at LSH on October 4, 2017.

         Plaintiff names the following persons as defendants: Laura Howard, Secretary of the Kansas Department for Aging and Disability Services; Lesia Dipman, Superintendent of LSH; Marcus Herrera, Program Director of the SPTP at LSH; Haleigh Bennett, Program Manager of the SPTP at LSH; Marc Quillen, Clinical Director of the SPTP at LSH; Michael Burke, Chief Medical Officer at LSH; David Barnum, Clinical Director at LSH; Keri Applequist, Assistant Clinical Director of the SPTP at LSH; Holly E. Hertel, Registered Nurse at LSH; Tomas Garza, a doctor at LSH; Seth Osborn, a therapist at LSH; Jason Fisher, Chief of Security at LSH; Lucille Partlowloyall, a social worker specialist for the SPTP at LSH; and Erica Brown, a registered nurse at LSH.

         In Count I, plaintiff alleges a “[m]assive conspiracy of mistreatment, discrimination and punitive conditions” and the use of “exaggerated rational[e] to justify the use of” physical restraint and seclusion in violation of the Fifth and Fourteenth Amendments to the Constitution and state laws and regulations. Doc. No. 4, p. 6. This appears to be a claim that plaintiff's substantive due process rights have been denied or that his equal protection rights have been denied.

         Plaintiff alleges that he has been on continuous Individualized Person Management Plan (“IPMP”) since February 24, 2019. The IPMP provides for confinement in plaintiff's room for all but one hour a day at “Stage 1” and, with good behavior, progress to “Stage 2” which permits 2 hours outside plaintiff's cell. Doc. No. 4-1, p. 21. In Count II, plaintiff alleges “[d]iscriminatory orders” written by a doctor and chief medical officer and deliberate indifference toward a serious medical need, in violation of the Constitution and state laws and regulations. In Count III, plaintiff alleges that he was the victim of battery on two separate occasions by unidentified staff members.

         The supplement to the amended complaint alleges that defendants have violated plaintiff's right to free exercise of his religion by restricting his attendance and participation in religious worship services because plaintiff “fellowships and studies” with the Jehovah's Witnesses. The supplement also alleges retaliation.

         II. Count I

         The exhibits to plaintiff's amended complaint show as the “Rationale for IPMP request, ” that on February 24, 2019, plaintiff was reported to have yelled, cursed and sexually threatened staff. He refused to allow a nurse to close a medication window while cursing and yelling. He was also reported to have exposed himself to staff multiple times. Doc. No. 4-1, p. 19.

         LSH policy and procedure provide that “An IPMP can be used when a person demonstrates or threatens substantial injury to others and routine psychiatric methods have been ineffective or are unlikely to be effective in reducing such risk.” Id. at p. 4.

         The IPMP reviewed plaintiff's “lengthy history of assaultive behaviors, ” his aggressive posturing toward staff, verbal threats, violent acts, public masturbation, propositioning staff, and throwing feces and urine. Id. at 19-20.

         The IPMP indicated that medication, verbal de-escalation, individual therapy, physical exercise, peer support, mental health education and security assistance had been utilized to better control plaintiff's misbehavior. Id. at p. 20.

         The IPMP stated that there were two initial stages. Id. at p. 21. Stage 1 limited plaintiff to his room except for a one hour break for shower, phone calls and exercise with no peers present. Stage 2 permitted a two hour break from confinement in his room. Plaintiff could reach Stage 2 ...

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