Snavely v. Kansas Department of Corrections et al
ORDER ENTERED: Claims 5, 8, 9, 11, 13, 14, 15, 16, 17, 19 and 20 are dismissed from this action without prejudice. Officials of the Lansing Correctional Facility shall prepare a report concerning the remaining claims, Claims 1, 2, 3, 4, 6, 7, 10, 12 and 18 pursuant to Martinez v. Aaron. The clerk of the court shall prepare waiver of service forms for defendants Ware, Okolzina, Bartz, Jackson, Sussanah, Dorothy, Werholtz, McKune, Green, Blankenship, Wager, Medill, Walker, Nance, Manibusan, Stua rt, Jones, Reece, Walker, Foster, Harper, Trexler and Spear pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. The clerk of the court shall enter the Kansas Department of Corrections as an interested party on the docket for the limited purpose of preparing the Martinez report. Upon the filing of that report, the Department of Corrections may move for termination from this action. Signed by District Judge Sam A. Crow on 09/30/10. (smnd)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS WILLIAM H. SNAVELY, III, Plaintiff, vs. KANSAS DEPARTMENT OF CORRECTIONS, et al., CIVIL ACTION No. 05-3468-SAC
ORDER This matter is a civil rights action filed pursuant to 42 U.S.C. § 1983 and other provisions of federal and state law by a prisoner in state custody. submitted the filing fee. Plaintiff proceeds pro se and
The matter comes before the court on
plaintiff's amended complaint (Doc. 39). The present complaint contains 310 numbered paragraphs of facts and 20 claims for relief. The court addresses the
plaintiff's allegations in sequence, noting, at the outset, that in many instances, plaintiff has introduced claims and new defendants for events that occurred after the time this action was commenced. Those claims are subject to dismissal. However,
the dismissal of such claims will not prevent plaintiff from
presenting them in a separate civil action, provided they are presented within the 2-year limitations period.1 Par. 1-28: In September 2005, plaintiff was assigned to work as a dining room porter. While working at that assignment, he Plaintiff grabbed a
slipped and fell in the porters' closet.
shelf to support himself, but the shelf was not attached and he was trapped under the shelf and its contents. The lights were
out because a breaker had been tripped, and the closet was dark. Plaintiff was taken to the prison clinic in a wheelchair. He was evaluated by Dr. Okolzina, who ordered him to shower and then examined him. medication. Thereafter, plaintiff made written and verbal requests for additional evaluation by a specialist. Par. 29-35: Plaintiff contends that since September 3, 2005, he has required a cane, crutches, or wheelchair to ambulate. As a Dr. Okolzina then ordered a cane and pain
result of his condition, he was transferred to a ground cell floor. On September 14, 2005,2 plaintiff fell while trying to
The court offers no opinion on plaintiff's statements concerning the exhaustion of remedies.
The court notes that paragraphs 31-34 (Doc. 39, p. 5) reference September 3, 2009. Reading these paragraphs in the context of the amended complaint, the court construes them to describe events in September 2005 for purposes of 2
enter the shower, which he estimates as twelve inches high. He suffered from episodes of numbness in his leg and sought leave to report to the medical clinic. He reports that on these
occasions, he was assisted by a prisoner porter and transferred in a wheelchair. Plaintiff states he made written and verbal requests for crutches or a wheelchair but was denied this equipment until 2006. Par. 36-37: Plaintiff received crutches in June 2006, but the In
equipment was taken away approximately two weeks later.
2008, the U.S. Department of Justice investigated a complaint by plaintiff. cane. Defendant offered plaintiff use of crutches or a
In June 2009, plaintiff was allowed to have both a cane
and crutches but was moved to a cellhouse that was not handicap accessible. Par. 38-44: During late September 2005, plaintiff was reassigned to A Cellhouse. alleges He was able to shower in that cellhouse. Manibusan took exception to He
failure to use the wooden shower bench for wheelchair prisoners. Plaintiff claims defendant Manibusan verbally taunted him and threatened to have him transferred back to B-1 cellhouse (B-1).
He alleges Manibusan then verbally abused
him for filing the grievance. Plaintiff filed another grievance against defendant Manibusan, and he claims two days later, he was transferred to B-1 in retaliation for his use of the grievance procedure. Par. 45-46: On October 7, 2005, plaintiff asked shift captain Wager to forward an emergency grievance to Warden McKune in which he alleged he was denied access to showers for filing grievances against Manibusan. was not forwarded. Par. 47: In early October 2005, defendant sick call nurse Dorothy took pleasure in advising plaintiff that Dr. Okolzina had removed plaintiff's stair restriction. Plaintiff then told Plaintiff claims the grievance
ARNP Bonita Wilson that Dr. Okolzina had not examined him prior to this change, and Wilson reinstated the stair restriction. Par. 48-50: On October 17, 2005, plaintiff again tried to file
an emergency grievance with Warden McKune, this time through Unit Team Manager Medill. Defendant Medill told him that he
would need to go to the second floor of the cellhouse to deliver the grievance. colluded with Plaintiff alleges this establishes that Medill Dr. Okolzina to alter his medical records.
Plaintiff then showed defendant Medill the stair restriction. 4
He claims defendant Medill was aware at that time that he was unable to safely use the shower. access to a shower until Plaintiff did not have 2005 when he was
transferred to D-Cellhouse.
He claims that from mid-September
to mid-December he lacked safe access to a shower and used his sink for sponge-baths. Par. 51: Plaintiff alleges he suffered two falls and injured his back, hip, and ankle.3 lack of ambulation aids. Par. 52-53: Plaintiff alleges that on November 17, 2005, He claims the falls were caused by the
defendant Trexler ordered him to stand during afternoon count. Plaintiff filed a grievance about the incident. Par. 54-55: religious On November 17, 2005, defendant T. Stuart placed a tract for a Christian organization into every
Plaintiff filed a grievance.
defendant Trexler posted several of the tracts on the windows of the office, blocked plaintiff's path, and told another prisoner that the tract told about a good program. Plaintiff alleges
this exchange was orchestrated to cause him to react and incur a disciplinary report and was retaliation for his grievance.
Portions of this paragraph are covered in a note and are illegible (Doc. 39, p. 9). 5
Cellhouse, and on one occasion, he required plaintiff to stand for count. Plaintiff fell and hit his left hand. He walked to
the clinic and obtained medical attention. Par. 57-62: Plaintiff fell twice on wet floors during his placement in D Cellhouse. On another occasion, he states his
leg became numb and he stopped walking and asked an officer to call for a wheelchair. The officer refused. Plaintiff at-
tempted to walk but fell down.
An officer who observed the fall
did not assist plaintiff and said the fall appeared to be fake. Par. 63-67: Two guards arrived with a wheelchair and took plaintiff to his cell. seeking medications with Plaintiff filed sick call requests, no side effects. He claims the
medications provided caused some side effects and that only limited amounts were provided to him. Due to his indigence, he
is unable to purchase over the counter medications. Par. 68-70: During 2005 and 2006, plaintiff sought medical
attention for sleep apnea, stomach problems, and skin diseases. He also sought medical care for skin diseases during 2008-2009. Par. 71-72. Plaintiff asked Dr. Satchell what diagnosis was in the CCS computer in 2008 concerning his back problems. Dr.
Satchel found no such reference and ordered a nerve damage test, which was performed in May 2009. 6
A neurologist told plaintiff there was evidence of
a pinched nerve, and on June 2, 2009, plaintiff was taken to Cushing Medical Plaza for an MRI. evidence of a pinched nerve. Par. 76-79: geal reflux Plaintiff suffers from sleep apnea, gastro-esophadisease, and skin disease. His requests for That test also showed
treatment by a dermatologist have been denied.
He has received
treatment from defendants Houang, Legler, and Satchell, but he has not obtained relief. He also has constant low back pain.
Par. 80-88: Plaintiff believes it is unsafe for him to walk up steep inclines without assistance where no handrail is available. He has been required to walk up to see defendants Walker,
Medill, and Nance in the Q Cellhouse for various administrative purposes. He contends the walkways are too steep for a He
handicap-accessible route and that they lack handrails.
filed a personal injury complaint with the prison in April 2009 regarding his concerns with the accommodations and the pain he suffers following his transfer from K Unit to Q-1 Dormitory. The complaint was rejected by defendant Jones, who stated
plaintiff had not sustained any injury. Par. 89-90: Plaintiff suffers daily pain due to his placement He has been denied alternate bunk
in the Q-1 dormitory.
assignments, and he sometimes has not had access to the ramp to 7
He seeks injunctive relief to allow him to move
to lower K Unit or to have defendants make the Q-1 area handicap accessible and to remove dogs from the unit. Par. 91-94: grievances at Plaintiff claims he had at least 15 unanswered the time he filed this action and that he
complained to Warden McKune and Secretary Werholtz.
complained, defendant Medill filed two disciplinary reports charging him with disrespect, lying, and falsifying documents. Plaintiff claims he has been afraid to file grievances since December 8, 2009. Par. 95-97: On April 13, 2009, defendant McKune ordered plaintiff's transfer to Q-1 dormitory, a non-handicap-accessible cellhouse. On June 2, 2009, defendants Pearson, Jones, and
Schiller abused and injured plaintiff while he was in their custody outside of the prison facility. life. Par. 98: Plaintiff was injured in September 2005 and was He now fears for his
sometimes denied the use of crutches or a wheelchair until approximately 2008. He was diagnosed in 2009 and thereafter was He has been
sometimes denied testing and pain medication.
prevented from using personal funds to obtain treatment outside the Department of Corrections. Par. 99-102: Plaintiff alleges unnamed prison guards have 8
failed to properly process his grievances and that defendants McKune, Jones, and Werholtz ignored this. Defendants McKune and Werholtz rejected some grievances because they had not been processed by defendant Medill. Plaintiff states he was afraid
to file grievances concerning subsequent events. As an example, he cites an incident on January 2, 2006, in which defendant Spear ordered him to either stand for count or to produce a doctor's order excusing him from standing. Par. 103-105: Plaintiff incurred copying expenses while pursuing administrative remedies and expenses for legal costs, copies, and postage. He earns an average of $200.00 per year, and some
of his disability income has been seized by unnamed defendants. Par. 106-109: In 2007, defendants Medill and Rutlege required Prior to
plaintiff to mail out four boxes of legal documents.
June 2007, plaintiff had been allowed to retain all legal materials. defendants After plaintiff commenced this action, unnamed amended internal facility rules restricting the
amount of legal materials a prisoner may possess. Par. 110-115: Prisoners are provided storage space for handicraft property and for items associated with religious observance. Plaintiff has requested additional storage space for The Department of Corrections does not offer
additional storage for legal materials; rather, excess materials 9
must be destroyed or mailed out of the facility. Par. 116: Plaintiff states he is unable to complete the amended
complaint because he lacks access to some of his legal materials. Par. 117-118: Plaintiff attempted to file a personal injury claim with the Joint Committee on Special Claims Against the State for injuries he received in 2005-2006. He also attempted
to file a personal injury claim with that committee for injuries received in 2009. Both claims were refused.
Par. 119: Plaintiff attempted to file personal injury claims with the Lansing Correctional Facility for all injuries
identified in this action. Par. 120-142: Plaintiff suffered a heart attack in June 2007.
He was taken to Providence Hospital where he underwent surgery. Shortly after surgery, he suffered a second heart attack. A
KDOC employee notified the nursing staff at the hospital, and plaintiff was given morphine and returned to surgery. He
complains that during the second surgical procedure, the surgeon scolded him for moving and for cursing. Plaintiff asserts he
was humiliated by that scolding, and he claims the second heart attack was avoidable. Par. 143-149: In 2006, defendant Medill assigned plaintiff to On his first day, plaintiff
work as a dining room porter. 10
objected to the assignment. work.
Defendant Harper ordered him to Defen-
Plaintiff fell shortly after beginning to work.
dant Harper ordered him to remain on the floor until a nurse arrived and refused plaintiff's request for assistance in
The nurse who reported told plaintiff that he would
have to walk to the clinic for treatment as a shift lieutenant told her not to bring a wheelchair. The lieutenant watched He
plaintiff walk and came to the dining room to observe him.
remarked that if plaintiff were unable to work, his medium custody level would be revoked. Par. 150-154: Plaintiff walked to the medium clinic with
assistance from an inmate porter.
He was not offered pain
medication, and the nurse, defendant Sussanah, accused him of malingering. He was told to return to the Q-1 cellhouse.
Par. 155-159: Plaintiff returned to work the next day and continued to work until December 2006. He was exposed to verbal He also claims he
taunts during this period and suffered pain.
was subjected to antagonism, neglect, and deliberate indifference by defendant Beckham, Unit Team Counselor. Par. 160-176: In March 2009, defendant Beckham wrote a disciPlaintiff also in claims which
plinary report against plaintiff for disrespect. claims the charge was fabricated. Plaintiff
plaintiff was required to stand or walk for long periods and that she colluded with defendant Julie, a secretary in the chaplain's office, to impede his legal work. Defendant Ayala-
Pagan, acting shift lieutenant, refused to intervene and told plaintiff he would have to get the proper forms to have copies made. Plaintiff obtained the appropriate forms and copies, but
he claims he was subjected to pain in making the necessary trips between areas of the prison. Par. 177-181: In returning to his living area after obtaining Defendants Peters and Risling arrived However, defendant The nurse
copies, plaintiff fell.
but refused to call a medical emergency.
Peters called the clinic and asked for a nurse.
arrived with a wheelchair, and defendants Peters and Risling assisted plaintiff into it. Plaintiff received an injection for pain. Par. Defendant Peters did not prepare an incident report. 182-189: Approximately one week prior to the fall,
defendant Beckham ordered defendant Robinson to escort plaintiff to Beckham's office to sign a disciplinary report. Plaintiff While
claims the form could have been brought to his cell.
returning to his cell, plaintiff stopped to rest but then tried to walk through a door. He fell and hit his head. Defendant
Robinson called a medical emergency, and a nurse came with a wheelchair. Plaintiff was left in a chair in the examination 12
room and then transferred to the hallway. Par. 190-191: K Unit to Q-1. On April 13, 2009, plaintiff was transferred from Defendant Jones refused to process a personal
injury claim plaintiff submitted. Par. 192-193: On April 19, 2009, defendant Kozel deliberately
startled plaintiff awake, causing him to have a mild heart attack. Plaintiff filed a personal injury claim asking
administrators to warn guards of all prisoners with a history of heart attacks. Par. 194-195: No relief was granted. On April 25, 2009, the Q-1 dormitory flooded
during a rainstorm, and unsanitary run-off water was in the plaintiff's living area for several hours. Par. 196: In order to visit unit counselors in Q-2 or Q-3, plaintiff must use an inclined walkway. Par. 197: Plaintiff has notified defendants McKune and Werholtz of all the complaints identified in this action. Par. 198-215: Plaintiff has dental problems that are exacerbated by acid reflux. Two of his teeth have been extracted, and he Plaintiff unsuccessfully sought He has
has had four filings repaired.
to have other services provided at his own expense.
suffered tooth infections, and his remaining teeth have shifted, causing pain. He also complains of difficulty in chewing.
Par. 216-220: On September 29, 2009, plaintiff saw defendant Havner for a complaint of pain. Defendant Havner told plaintiff
a prescription would be available at the clinic, but plaintiff did not receive that prescription. He claims he needlessly
suffered pain between 9 a.m. and 4 p.m. Par. 221-223: Defendant Lawhorn established a policy in the medium clinic that no nsaid4 pain relievers may be prescribed in "KOP" [keep on person] status. Plaintiff claims this is
prisoners with adequate funds may purchase
such medication from the prison store and keep it in their cells. Plaintiff lacks access to sufficient assets to purchase
medication through the store. Par. 224-227: Plaintiff claims defendants have unlawfully
seized his assets to pay accrued fees for legal and medical fees. He claims defendants refused to provide any way for him
to pay costs associated with a divorce action. Par. 228-232: On September 19, 2008, plaintiff was referred to
Impact Design, a private employer with operations at the prison. He was not hired. Plaintiff seeks to add defendants to this
action concerning these events.
Nonsteroidal anti-inflammatory drug. 14
Pr. 233-270: Plaintiff suffered injuries due to falls in the K Unit. He attributes these falls to the failure to allow him to On June 2, 2009, he was He was escorted
retain both a cane and crutches.
injured in a fall at the Cushing Medical Plaza.
to that appointment in belly-chains and hand and ankle cuffs. Plaintiff told one of the escorting officers that he could not walk with a cane while wearing restraints. remove the restraints. Officers refused to
Upon arrival at the medical facility,
plaintiff was lifted from the van but was directed to walk to the building. Plaintiff walked several yards but fell before he Plaintiff was ordered to get up but An ambulance arrived and took plaintiff
reached the building. refused, due to pain.
to Cushing Hospital where he received x-rays and pain medication. He returned to the prison in a wheelchair van. Upon his return to the prison, plaintiff refused Plaintiff was again taken to The procedure lasted
to sign a medical release from.
the Cushing Medical Plaza for an MRI. approximately one hour.
Following the procedure, plaintiff was
placed in restraints, seated in a wheelchair, and placed in a van for transport. The wheelchair shifted during turns and
stops, causing plaintiff pain.
The pleading contains two paragraphs numbered as "287". 15
Par. 287-295: wheeled
Upon returning to the prison, defendant Schiller to the visitors' entrance. One of the
escorting officers returned to the van to retrieve paperwork. Defendant Schiller tilted the wheelchair back and forth and dropped it and also beat on the handgrips of the chair, causing plaintiff pain. Plaintiff called for help, and a woman opened
the door to the visitors' entrance and held the door open. Plaintiff was taken to the clinic, where he remained until 4 p.m. and then was escorted by a porter to the Q-1 dormitory. received injections for pain for the next two days. Par. 296-298: Plaintiff claims defendants have denied him He
adequate accommodations for his disability since September 2005. In June 2009, defendant McKune entered an agreement with the U.S. Department of Justice to provide plaintiff with a handicap aide. Par. 298-302: Following the agreement, a physician scheduled Plaintiff refused
plaintiff for a test preparatory to surgery. the test and the surgery.
After he was advised he must sign a
refusal form, receive a disciplinary report, or report for the test, plaintiff signed the refusal form. Par. 303-310: Plaintiff states that under IMPP 10-109 II. B., he is entitled to Level A pay as a prisoner who is medically unable to work. He also states that disability pay cannot be seized 16
without due process and that he is indigent, as defined by LCF General Order 12, 104, and has been since 2005. Plaintiff
states that since his facility debt exceeds $50.00, he must request funds for mailing or copying, that this request entails a wait, and that such wait is discriminatory. Screening The court has examined the complaint pursuant to 28 U.S.C. § 1915A, which requires the court to review a complaint in which a prisoner seeks redress from a governmental entity, officer, or employee. Because plaintiff proceeds pro se, his pleadings are given a liberal construction. (1972). Haines v. Kerner, 404 U.S. 519, 520-21
However, a court should not become an advocate for a
pro se litigant and should dismiss claims that are unsupported. Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). See also
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005)("[T]he court cannot take on the responsibility
of...constructing arguments and searching the record."). By a previous order, the court advised: Plaintiff must present the court with a comprehensible statement of his claims and of the relief he seeks. He need not, at this stage, present detailed legal argument; rather, he must identify the specific acts or omissions that allegedly violated his rights, the person or persons who perpetrated the acts, when they occurred, and the relief sought. (Doc. 34, p.2.) 17
An amended complaint supercedes the original complaint. See Mink v. Suthers, 482 F.3d 1244, 1254 (10th Cir.
2007)(citations omitted)("[A]n amended complaint supercedes an original complaint and renders the original complaint without legal effect[.]") Next, the Federal Rules of Civil Procedure govern the joinder of claims and parties in a single lawsuit. First,
pursuant to Rule 18(a), "A party asserting a claim to relief ... may join "either as independent or as alternative claims, as many claims, legal, equitable or maritime, as the party has against an opposing party." Pursuant to Rule 20(a)(2), the
joinder of several parties is permissible if (A) the claims arise "out of a single transaction, occurrence, or series of transactions" and there is a question of fact or law common to all defendants, and (B) any question of law or fact common to all defendants will arise in the action. Thus, while joinder is
encouraged for purposes of judicial economy, the "Federal Rules do not contemplate joinder of different actions against different parties which present entirely different factual and legal issues." Zhu v. Countrywide Realty Co., Inc., 160 F.Supp.2d
1210, 1225 (D.Kan. 2001) (citation omitted). These provisions apply to claims filed by parties
proceeding pro se.
Thus, "[u]nrelated claims against different
defendants belong in different suits, not only to prevent the sort of morass that this [multiple]-claim, [multiple]-defendant suit produced but also to ensure that prisoners pay the required filing fees." 2007). George v. Smith, 507 F.3d 605, 507 (7th Cir.
See Smith v. Kirby, 53 Fed. Appx. 14, 16 (10th Cir. Dec.
9, 2002)(finding no abuse of discretion where district court denied leave to amend or supplement the complaint where the "new claims were not relevant to the claims before that court...."). Having presented considered the the numerous complaint, allegations the court and claims the
following findings and conclusions. Claims 1 and 2 (Par. 1-26): Plaintiff's claims alleging he was
injured due to unsafe conditions, deliberate indifference to inmate safety, and lack of training will be allowed to proceed. The court construes the pleading to assert claims against
defendants Reece, Walters, Foster, and Blankenship. Claim 3 (Par. 27-50): Plaintiff's claims alleging the denial of adequate accommodations for his disability and retaliatory
conduct in violation of the Americans with Disabilities Act and in violation of his constitutional rights will be allowed to proceed. The court construes the pleading to assert claims
against defendants Okolzina, Ware, Jackson, Bartz, Trexler, 19
Medill, Manibusan, Wager, and McKune. Claim 4 (Par. 52-53, 56, 101-102): Plaintiff's claims alleging he was required to stand for count when doing so caused him great pain will be allowed to proceed. alleging verbal abuse are dismissed.6 Plaintiff's claims
The court construes the
pleading to assert claims against defendants Trexler and Spear. Claim 5: Plaintiff identifies no facts in support of this claim, which alleges the denial of a handicap aide and the denial of ambulatory aids during his placement in D Cellhouse. Pars. 58
and 59 allege two falls on wet cell floors in that area but allege plaintiff's cane slipped, which is not consistent with the claim that he was denied ambulatory aids. The paragraphs
immediately following (par. 60 - 62) are cited as the factual basis for Claim VII. Accordingly, the court dismisses Claim V.
Claim 6 (Par. 45-46): Plaintiff claims he submitted an emergency grievance which shift captain Wager refused to forward to Warden McKune. The court will allow this claim to proceed and con-
strues the claim as one against defendant Wager. Claim 7 (Par. 60-62): Plaintiff claims he fell on one occasion after requesting a wheelchair and being denied assistance. court will allow this claim to proceed and construes The the
McBride v. Deer, 240 F.3d 1287, 1291 n. 3 (10th Cir. 2001). 20
pleading to assert claims against defendants Green and Doe. Claim 8 (Par. 63-66 and 71-75): Plaintiff claims defendants deliberately failed to enter any diagnostic information into prison records concerning his back injury and that as a result he was denied adequate accommodations including shower facilities and ambulatory aids. He claims this was in retaliation for
his pursuit of grievances, for refusing to sign an agreement to pay for an MRI, and for filing the present lawsuit. dismisses these claims. The paragraphs cited by plaintiff as the factual basis for this claim do not identify any defendant who is allegedly responsible for these events; his claim concerning his sick call requests identifies side effects he suffered from various The court
medications and shows he received medical attention but was dissatisfied with all but one medication provided7; his claim concerning a nerve damage test conducted in May 2009 involves events that occurred long after he filed this action; and he
Prison officials violate the Eighth Amendment when a deprivation is "sufficiently serious" and results from "deliberate indifference" to a prisoner's health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994). However, a prisoner's disagreement or dissatisfaction with treatment offered by prison medical staff is not sufficient to establish deliberate indifference. See Perkins v. Kansas Department of Corrections, 165 F.3d 803, 811 (10th Cir. 1999). 21
makes no factual allegation in support of a claim of retaliation by any defendant. Claim 9 (Par. 68-70, 76-78, 98): Plaintiff claims he has not been provided effective medical treatment for gastro-esophageal reflux disease, sleep apnea, skin diseases, and a spinal injury. He alleges violations of the Eighth Amendment and of the
Americans with Disabilities Act.
Because plaintiff has failed
to identify any defendant who participated in the events giving rise to his claim, the claim must be dismissed. Claim 10 (Par. 91-94, 117-119): Plaintiff complains of interference with his use of the grievance procedure and the issuance of disciplinary charges against him for disrespect, lying, and falsifying documents; he also alleges a refusal to process a personal injury claim he submitted to the Lansing Correctional Facility. The court will allow this claim to proceed and
construes the pleading to assert claims against defendants defendants McKune, Werholtz, Medill, and Jones. Claim 11 (Par. 103-116, 159-181, 310): Plaintiff complains of
costs associated with use of the grievance procedure, that in 2007, he was required to mail a 5-foot stack of legal documents and photographs out of the facility, and that he has not been given extra storage space for his papers. disciplinary report he received 22 in He complains of a 2009, and of
difficulties he has experienced in obtaining copies, apparently in 2009. He also complains that he has been required to wait
long periods of time for copies due to his debt for earlier copies and supplies. This claim will be dismissed. Plaintiff's
allegations in this claim appear to be unrelated to the claims advanced elsewhere in this action and to have occurred long after plaintiff filed this action. Claim 12 (par. 54-55): Plaintiff claims he and other prisoners were given religious tracts for a Christian organization and that thereafter an officer told another prisoner in plaintiff's presence that it was a good program. done to goad him The into court an Plaintiff alleges this was so a that he could on be the
distribution of the tract but dismisses the portion of this claim that asserts communication between an officer and another inmate violated plaintiff's protected rights. The court
construes the pleading to assert a claim against defendant Stuart. Claim 13 (Par. 198-220): Plaintiff complains of deliberate indifference to his pain and suffering from inadequate dental treatment. Because the factual allegations cited by plaintiff
appear to involve events that occurred in 2009, the court will dismiss the claims from this action. 23
Claim 14 (Par. 81-89, 95, 190-191, 194-195):
plains he is housed in an area which is not accessible, that his transfer to the Q-1 dormitory placed him in a non-handicapaccessible area, and that the Q-1 dormitory flooded during a rainstorm. Because of all of these events occurred in 2009, the
court will dismiss them from this action. Claim 15 (Par. 94-97 and 234-296): Plaintiff claims he has been afraid to file grievances since December 2009, that he was transferred to Q-1, a non-handicap-accessible dormitory in April 2009, and that in June 2009, staff subjected him to verbal and physical abuse and injury while he was outside the premises of the prison for transport to and from a local medical facility. Because all of these events occurred in 2009, the court will dismiss them from this action. Claim 16 (Par. 120-142): Plaintiff complains of the medical care he received in 2007 at the Providence Hospital. Because these
allegations are unrelated to plaintiff's claims concerning the conditions of his confinement, involve other defendants, and occurred in a different location, the claim will be dismissed. Claim 17 (Par. 192-193): Plaintiff complains a corrections officer deliberately startled him on April 19, 2009, causing him to suffer a mild heart attack. Because this event occurred in
2009 and appears to be unrelated to other claims set forth in 24
this action, this claim will be dismissed. Claim 18 (Par. 26-39, 79-80, 143-158, 196-197, and 233):
Plaintiff complains of an on-going course of abuse based upon his requests for accommodation due to his disability. His
claims of verbal abuse by defendants Gwaltney and Dunn are dismissed. The court will allow the balance of this claim to assert a claim against
proceed and construes the pleading to
defendants Okolzina, Ware, Dorothy, Jackson, Bartz, Trexler, Medill, Walker, Nance, Harper, Sussanah, Doe, McKune, and
Werholtz. Claim 19 (Par. 228-232): Plaintiff complains of the decision by Impact Design, LLC., rejecting him for employment in 2008. Because this occurred long after the filing of this action and involves events and defendants unrelated to the remaining
claims, this claim will be dismissed. Claim 20 (Par. 110-116): Plaintiff challenges the directive that he send material out of the prison to comply with restrictions on personal property.8 These facts are essentially the same as
The Tenth Circuit has found that "a prison rule limiting the amount of legal material that a prisoner could retain in his cell was reasonable and necessary and did not violate the constitutional right of access to the Courts." Clemmons v. Davies, 86 F.3d 1166, 1996 WL 282283, at *3 (10th Cir. 1996)(unpublished)(citing Green v. Johnson, 977 F.2d 1383, 1390 (10th Cir. 1992)). 25
those presented in Claim 11, and, because the allegations are unrelated to the claims advanced elsewhere in this action and occurred long after plaintiff filed this action, this claim will be dismissed. Conclusion For the reasons set forth, the court dismisses Claims 5, 8, 9, 11, 13, 14, 15, 16, 17, 19 and 20 from this action without prejudice. The court will direct a response on the remaining
claims, that is, Claims 1, 2, 3, 4, 6, 7, 10, 12, and 18, and will direct service to the defendants identified herein as named in those claims. IT IS, THEREFORE, BY THE COURT ORDERED Claims 5, 8, 9, 11,
13, 14, 15, 16, 17, 19 and 20 are dismissed from this action without prejudice. IT IS FURTHER ORDERED officials of the Lansing Correctional Facility shall prepare a report concerning the remaining claims, Claims 1, 2, 3, 4, 6, 7, 10, 12, and 18, pursuant to Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978). IT IS FURTHER COURT ORDERED that: (1) The clerk of the court shall prepare waiver of service
forms for defendants Ware, Okolzina, Bartz, Jackson, Sussanah, Dorothy, Werholtz, McKune, Green, Blankenship, Wager, Medill, Walker, Nance, Manibusan, Stuart, Jones, Reece, Walker, Foster, 26
Harper, Trexler, and Spear pursuant to Rule 4(d) of the Federal Rules of Civil Procedure, to be served by a United States Marshal or a Deputy Marshal. Costs shall be assessed to
plaintiff absent a finding by the court that plaintiff is able to pay such costs. Answers or responses to the complaint,
including the report required herein, shall be filed no later than sixty (60) days from the date of this order. (2) Officials responsible for the operation of the Lansing
Correctional Facility are directed to undertake a review of the subject matter of the complaint: (a) (b) to ascertain the facts and circumstances; to consider whether any action can and should be taken
by the institution to resolve the subject matter of the complaint; (c) to determine whether other like complaints, whether
pending in this court or elsewhere, are related to this complaint and should be considered together. (3) Upon completion of the review, a written report shall
be compiled which shall be attached to and filed with the defendants' answer or response to the complaint. all witnesses shall be in affidavit form. Statements of
Copies of pertinent
rules, regulations, official documents and, wherever appropriate, the reports of medical or psychiatric examinations shall be 27
included in the written report. (4) Authorization is granted to the officials of the
Lansing Correctional Facility to interview all witnesses having knowledge of the facts, including the plaintiff. (5) No answer or motion addressed to the complaint shall
be filed until the report requested herein has been prepared. (6) plaintiff Discovery has by plaintiff and shall not commence until or
response to the complaint and the report requested herein. action is exempted from the requirements imposed
Fed.R.Civ.P. 26(a) and 26(f). IT IS FURTHER ORDERED the clerk of the court shall enter the Kansas Department of Corrections as an interested party on the docket for the limited purpose of preparing the Martinez report ordered herein. Upon the filing of that report, the
Department of Corrections may move for termination from this action. Copies of this order shall be transmitted to plaintiff, to defendants, and to the Attorney General for the State of Kansas.
IT IS SO ORDERED. Dated at Topeka, Kansas, this 30th day of September, 2010.
S/ Sam A. Crow SAM A. CROW United States Senior District Judge
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