United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW, SENIOR U.S. DISTRICT JUDGE.
a state prisoner appearing pro se and in forma pauperis,
filed this civil rights complaint pursuant to 42 U.S.C.
§ 1983. Plaintiff is incarcerated at the Hutchinson
Correctional Facility in Hutchinson, Kansas
(“HCF”). On November 1, 2019, the Court entered a
Memorandum and Order and Order to Show Cause (Doc. 7)
(“MOSC”), granting Plaintiff until November 29,
2019, in which to show good cause why his Complaint should
not be dismissed or to file a proper amended complaint to
cure the deficiencies set forth in the MOSC. The Court
granted Plaintiff an extension of time to December 20, 2019,
to respond to the MOSC. (Doc. 9.) Plaintiff has failed to
respond to the MOSC within the allowed time.
alleges that he is an amputee and Defendants were
deliberately indifferent when they provided him with access
to a handicap shower (with a shower seat), but not an
“ADA certified shower” (with a shower chair).
(Doc. 1, at 2, 18.) He alleges that he was allowed to shower
in an area designed for people with limited mobility, but not
for amputees. Id. at 5. Plaintiff alleges he slipped
off the shower seat and tore his ACL. Plaintiff had surgery
on his knee, and the surgeon recommended Percocet for pain
management. The medical staff at HCF refused to give
Plaintiff Percocet and instead provided him with Tylenol 3.
Id. at 18-19. Plaintiff alleges that he did not
receive proper responses to his filed grievances, and that he
was retaliated against by Defendants for filing grievances.
Plaintiff alleges that he received disciplinary infractions
and was housed in a higher custody setting as forms of
Court found in the MOSC that Plaintiff has failed to show
that any defendant was deliberately indifferent regarding his
pain medication and that his medical claims are subject to
dismissal. A mere difference of opinion between the inmate
and prison medical personnel regarding diagnosis or
reasonable treatment does not constitute cruel and unusual
punishment. See Estelle v. Gamble, 429 U.S. 97,
106-07 (1976); 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).
allegations do not show a complete lack of medical care, but
rather show Plaintiff's disagreement regarding the proper
course of treatment or medication. A complaint alleging that
plaintiff was not given plaintiff's desired medication,
but was instead given other medications, “amounts to
merely a disagreement with [the doctor's] medical
judgment concerning the most appropriate treatment.”
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); Hood v. Prisoner
Health Servs., Inc., 180 Fed.Appx. 21, 25 (10th Cir.
2006) (unpublished) (where appropriate non-narcotic
medication was offered as an alternative to the narcotic
medication prescribed prior to plaintiff's incarceration,
a constitutional violation was not established even though
plaintiff disagreed with the treatment decisions made by
prison staff); Carter v. Troutt, 175 Fed.Appx. 950
(10th Cir. 2006) (unpublished) (finding no Eighth Amendment
violation by prison doctor who refused to prescribe a certain
pain medication where he prescribed other medications for the
inmate who missed follow-up appointment for treatment and
refused to be examined unless he was prescribed the pain
medication he wanted); Ledoux v. Davies, 961 F.2d
1536, 1537 (10th Cir. 1992) (“Plaintiff's belief
that he needed additional medication, other than that
prescribed by the treating physician, as well as his
contention that he was denied treatment by a specialist is .
. . insufficient to establish a constitutional
Court also found that Plaintiff failed to show that any
defendant disregarded an excessive risk to his health or
safety by providing him with a handicap shower with a shower
seat, as opposed to a shower chair. He has failed to allege
that any defendant was both aware of facts from which the
inference could be drawn that a substantial risk of serious
harm existed, and also drew the inference. The Court found
that Plaintiff's claims suggest, at most, negligence, and
are subject to dismissal.
Court also found in the MOSC that Plaintiff's retaliation
claim was subject to dismissal for failure to allege adequate
facts in support of the claim. Plaintiff's allegations
regarding retaliation are generally conclusory, lacking facts
to demonstrate any improper retaliatory motive. An
“inmate claiming retaliation must allege specific
facts showing retaliation because of the exercise of the
prisoner's constitutional rights.” Fogle v.
Pierson, 435 F.3d 1252, 1264 (10th Cir. 2006)
(quotations and citations omitted). Thus, for this type of
claim, “it is imperative that plaintiff's pleading
be factual and not conclusory. Mere allegations of
constitutional retaliation will not suffice.”
Frazier v. Dubois, 922 F.2d 560, 562 n. 1 (10th Cir.
1990). “To prevail, a prisoner must show that the
challenged actions would not have occurred ‘but
for' a retaliatory motive.” Baughman v.
Saffle, 24 Fed.Appx. 845, 848 (10th Cir. 2001) (citing
Smith v. Maschner, 899 F.2d 940, 949-50 (10th Cir.
1990); Peterson v. Shanks, 149 F.3d 1140, 1144 (10th
Court also found that Plaintiff's claims regarding the
failure to properly respond to his grievances are subject to
dismissal for failure to state a claim. Plaintiff claims that
several defendants failed to properly respond to his
grievances. Plaintiff acknowledges that a grievance procedure
is in place and that he used it. Plaintiff's claims
relate to his dissatisfaction with responses to his
grievances. The Tenth Circuit has held several times that
there is no constitutional right to an administrative
grievance system. Gray v. GEO Group, Inc., No.
17-6135, 2018 WL 1181098, at *6 (10th Cir. March 6, 2018)
(citations omitted); Von Hallcy v. Clements, 519
Fed.Appx. 521, 523-24 (10th Cir. 2013); Boyd v.
Werholtz, 443 Fed.Appx. 331, 332 (10th Cir. 2011);
see also Watson v. Evans, No. 13-cv-3035-EFM, 2014
WL 7246800, at *7 (D. Kan. Dec. 17, 2014) (failure to answer
grievances does not violate constitutional rights or prove
injury necessary to claim denial of access to courts);
Strope v. Pettis, No. 03-3383-JAR, 2004 WL 2713084,
at *7 (D. Kan. Nov. 23, 2004) (alleged failure to investigate
grievances does not amount to a constitutional violation);
Baltoski v. Pretorius, 291 F.Supp.2d 807, 811 (N.D.
Ind. 2003) (finding that “[t]he right to petition the
government for redress of grievances . . . does not guarantee
a favorable response, or indeed any response, from state
Court also found that Plaintiff's claims regarding his
security classification are subject to dismissal for failure
to state a claim. Plaintiff does not have a constitutional
right to dictate where he is housed, whether it is which
facility or which classification within a facility. See
Schell v. Evans, 550 Fed.Appx. 553, 557 (10th Cir. 2013)
(citing Meachum, 427 U.S. at 228-29; Cardoso v.
Calbone, 490 F.3d 1194, 1197-98 (10th Cir. 2007).
Moreover, jail officials are entitled to great deference in
the internal operation and administration of the facility.
See Bell v. Wolfish, 441 U.S. 520, 547-48 (1979).
Furthermore, § 1983 is not applicable to
“challenges to punishments imposed as a result of
prison disciplinary infractions, ” unless the
disciplinary conviction has already been invalidated.
Cardoso v. Calbone, 490 F.3d 1194, 1199 (10th Cir.
2007). The Supreme Court has made clear that “a state
prisoner's claim for damages is not cognizable under 42
U.S.C. § 1983 if ‘a judgment in favor of the
plaintiff would necessarily imply the invalidity of his
conviction or sentence,' unless the prisoner can
demonstrate that the conviction or sentence has previously
been invalidated.” Edwards v. Balisok, 520
U.S. 641, 643 (1997) (quoting Heck v. Humphrey, 512
U.S. 477, 487 (1994)). This rule applies not only when the
prisoner challenges his conviction but also when he
challenges punishments imposed as a result of prison
disciplinary infractions. Balisok, 520 U.S. at 648.
has failed to respond to the Court's MOSC within the
allowed time. The MOSC provides that “[i]f Plaintiff
does not file an amended complaint within the prescribed time
that cures all the deficiencies discussed herein, this matter
will be decided based upon the current deficient
Complaint.” (Doc. 7, at 13.) Plaintiff has failed to
show good cause why his Complaint should not be dismissed for
failure to state a claim.
IS THEREFORE ORDERED BY THE COURT that this case is
dismissed for failure to state a claim.