Smith v. Lappin et al

Filing 16

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted to and including October 19, 2012, to submit the initial partial filing fee. Plaintiff's combined motion 15 to amend and to appoint counsel is denied. Plaintiff is granted to and including October 19, 2012, to supplement the record with: (1) any specific factual allegations concerning defendant Lappin's participation in this matter, and (2) any statement or exhibits concerning his use of administrative remedies to seek review from the action of defendant Van Racy. Signed by Senior District Judge Sam A. Crow on 9/18/2012. (Mailed to pro se party Tony Darnell Smith by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TONY DARNELL SMITH,
Plaintiff,
v.

CASE NO. 10-3073-SAC

HARLEY LAPPIN, et al.,
Defendants.

MEMORANDUM AND ORDER
This matter is a civil rights action filed by a plaintiff
proceeding pro se. Plaintiff commenced this action while assigned to
a halfway house.
The complaint names Harley Lappin, Director of the Bureau of
Prisons,

and

Van

Racy,

of

the

Bureau

of

Prisons

Community

Corrections Office in Kansas City, Kansas, as defendants. Plaintiff
alleges a delay or denial of constitutionally adequate medical care
for an injury that occurred when he slipped on airplane steps during
a federal airlift in August 2008.
The matter comes before the court on plaintiff’s response to
the court’s order to submit an initial partial filing fee (Doc. 7)
and on his combined motion to amend the complaint and to appoint
counsel (Doc. 15).
The motion to proceed in forma pauperis
Because plaintiff was confined to a halfway house at the time
he filed this action, the Prison Litigation Reform Act (PLRA)
applies. See, e.g., Hage v. ICCS Halfway House, 2006 WL 2583093, *1
(D. Colo. 2006)(requiring a prisoner assigned to a halfway house to

plead exhaustion of administrative remedies). The PLRA defines a
“prisoner” as “any person incarcerated or detained in any facility
who is accused of, convicted of, sentenced for, or adjudicated
delinquent

for,

violations

of

criminal

law

or

the

term

and

conditions of parole, probation, pretrial release, or diversionary
program.” 28 U.S.C. § 1915(h).
Accordingly, plaintiff’s motion to proceed in forma pauperis
is governed by 28 U.S.C. § 1915(b) due to his status as a prisoner
in a halfway house at the time he commenced this action. Under the
PLRA, a prisoner bringing a civil action must pay the full amount of
the statutory filing fee. See 28 U.S.C. § 1915(b)(1). An indigent
prisoner ordinarily may proceed in a civil action in forma pauperis
by making an initial partial payment and paying the remaining
balance

of

the

filing

fee

in

monthly

installments.

See

id.

§1915(b)(2).
In this case, the court directed plaintiff to submit an initial
partial filing fee of $19.00 (Doc. 6). Plaintiff filed a response
(Doc. 7) in which he asked the court to calculate his initial
partial fee on his income. The court has considered that objection,
but finds the initial partial filing fee, calculated on the six
months deposits and balances as directed by statute, must be
imposed. Any future installments, however, will be calculated on
plaintiff’s income so long as he remains a prisoner as defined by
§1915(h). Because it does not appear that plaintiff has submitted
that partial filing fee, the court will direct him to do so.

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Plaintiff’s motion to amend and appoint counsel
Plaintiff’s motion to amend seeks to add a claim that following
his

arrival

at

the

Federal

Correctional

Institution,

Pekin,

Illinois, “FCI Pekin medical still refuse to give the Defendant
proper medical care.” (Doc. 15, p. 1.) Generally, a court “should
freely give leave [to amend] when justice so requires.” Fed. R. Civ.
P. 15(a)(3). Because the injury alleged by the plaintiff in the
proposed amendment to the complaint occurred outside the District of
Kansas,

the

court

declines

to

allow

the

amendment

sought

by

plaintiff. Rather, plaintiff should present a new action in the
district in which the alleged acts or omissions occurred.
Plaintiff also moves for the appointment of counsel. As a party
to a civil action, plaintiff has no constitutional right to counsel.
See Johnson v. Johnson, 466 F.3d 1213, 1217 (10th Cir. 2006). And
while a federal court “may request an attorney to represent any
person unable to afford counsel”, see 28 U.S.C. § 1915(e)(1), the
decision rests in the discretion of the court. In exercising that
discretion, the court should consider the merits of the claims, the
factual issues presented, the party’s ability to present the claims,
and the complexity of the legal issues involved. Williams v. Meese,
926 F.2d 994, 996 (10th Cir. 1991). The court has examined the record
and declines to appoint counsel based upon the nature of the issues
of law and fact suggested by the pleadings and upon the fact that
plaintiff has been released from custody and does not reside in this
district.

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Screening of the complaint
A federal court must conduct a preliminary screening of a civil
action in which a prisoner seeks relief from a governmental officer
or entity or an employee of a governmental entity and must dismiss
any claim that is frivolous, malicious, fails to state a claim upon
which relief may be granted, or seeks monetary damages against a
defendant who is immune from such relief. See 28 U.S.C. §1915A(a)(b).
A party proceeding pro se is entitled to a liberal reading of
his pleadings. Erickson v. Pardus, 551 U.S. 89 (2007); Haines v.
Kerner, 404 U.S. 519, 520 (1972). This lenient standard, however,
“does not relieve the plaintiff of the burden of alleging sufficient
facts on which a recognized legal claim could be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Rather, the complaint
must present allegations of fact that “raise a right to relief above
the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544,

555

(2007).

A

court

need

not

accept

“mere

conclusions

characterizing pleaded facts” Bryson v. City of Edmond, 905 F.2d
1386, 1390 (10th Cir. 1990); likewise, a court “will not supply
additional factual allegations to round out a plaintiff’s complaint
or construct a legal theory on a plaintiff’s behalf.” Whitney v. New
Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
Plaintiff’s claims
As noted, plaintiff names as defendants Harley Lappin, Director
of the federal Bureau of Prisons (BOP) and Van Racy, Director of the

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BOP’s Community Corrections Office in Kansas City, Kansas.
The court has carefully examined the record and finds no
specific

allegation

against

defendant

Lappin.

It

appears

that

plaintiff claims this defendant is liable because of his position as
the chief officer of the BOP. A defendant’s personal participation
is an essential allegation in a civil rights action. See Bennett v.
Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). To establish this
participation, the plaintiff must show an affirmative link between
the alleged violation of his federal rights and each defendant’s
participation, control, or failure to supervise. See Butler v. City
of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993). Accordingly, unless
plaintiff asserts specific facts showing participation by defendant
Lappin, he must be dismissed from this action.
Plaintiff’s claim against defendant Van Racy appears to be that
he denied plaintiff the opportunity for surgery on April 8, 2010.
The

attachments

to

the

complaint

include

a

March

16,

2010,

memorandum to the plaintiff from a case manager. The memorandum
reads:
03-16-10
Smith, Tony
I spoke to Van Racy today in regards to your surgery. The
paperwork you have given me is not what he needs.
Van Racy is requesting the following; a Synopsis from your
Dr., a copy of Medical Records. He also needs a letter
from the Dr. that clearly says that if you do not have the
surgery on April 8th that you will become totally
disabled.
Glory
A handwritten notation at the bottom of the attachment reads:
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“Comm Correctional Office - Van Racy denied my April 8th Operation
because of above statement.” (Doc. 1, Attach. p. 2.)
While
directly

the

exhibits

related

to

do

this

not

include

denial,

materials

there

is

a

that

appear

response

to

Administrative Remedy No. 548814-A1 dated March 3, 2010, that reads
as follows:
This is in response to your Central Office Administrative
Remedy Appeal in which you contend you suffered from an
injury to your back after a fall. As relief, you request
surgical repair of your lumbar spine before your transfer
to a halfway house.
Relevant portions of your medical record have been
reviewed which reveal you were evaluated by a consultant
neurosurgeon on September 22, 2009, who diagnosed you with
lumbar radiculopathy at L5-S1 with L4-L5 foraminal
narrowing. You were informed by the specialist that this
was not a life threatening lesion and a recommendation was
made for you to receive conservative treatment at this
time. Further review of your medical record reveals you
were prescribed appropriate medication in order to treat
your condition conservatively. Records also indicate you
were released to a Residential Reentry Center on December
2, 2009.
This response is provided for informational purposes.
(Doc. 1, Ex. p. 14.)
Generally, a prison official’s acts or omissions “violate the
Eighth Amendment’s ban on cruel and unusual punishment if [his]
‘deliberate indifference to serious medical needs of prisoners
constitutes the unnecessary and wanton infliction of pain.’” Self v.
Crum, 439 F.3d 1227, 1230 (10th Cir. 2006)(quoting Estelle v. Gamble,
429 U.S. 97, 104 (1976)). An “inadvertent failure to provide
adequate medical care’ is not enough, nor does ‘a complaint that a
physician has been negligent in diagnosing or treating a medical
condition...state a valid claim of medical mistreatment under the
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Eighth Amendment.’” Id., (quoting Estelle, 429 U.S. at 105).
To allege a claim for relief under the Eighth Amendment, a
prisoner must make an objective showing that the deprivation was
sufficiently serious, see Farmer v. Brennan, 511 U.S. 825, 834
(1994), and provide evidence that the prison official “acted with a
sufficiently culpable state of mind.” Perkins v. Dep’t of Corr., 165
F.3d 803, 809 (10th Cir. 1999).
“[A] delay in medical care only constitutes an Eighth Amendment
violation where the plaintiff can show the delay resulted in
substantial harm.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir.
2005)(internal punctuation omitted); Olson v. Stotts, 9 F.3d 1475,
1477 (10th Cir. 1993). Such harm may be shown by evidence that the
delay caused unnecessary pain or caused the condition to worsen. Id.
at 755. However, postponing surgery for a period, even until the
prisoner is released, does not provide a cause of action for
deliberate indifference to serious medical needs if the delay would
not cause further damage. White v. Colorado, 82 F.3d 364, 366 (10th
Cir.1996).

Thus,

the

resolution

of

plaintiff’s

claim

against

defendant Van Racy may require additional development of the record,
provided plaintiff satisfies the threshold requirements of payment
of the initial partial filing fee and the exhaustion of available
administrative remedies.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff is granted to
and including October 19, 2012, to submit the initial partial filing
fee. The failure to file a timely response may result in the
dismissal of this matter without additional prior notice to the
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plaintiff.
IT IS FURTHER ORDERED plaintiff’s combined motion to amend and
to appoint counsel (Doc. 15) is denied.
IT IS FURTHER ORDERED plaintiff is granted to and including
October 19, 2012, to supplement the record with: (1) any specific
factual allegations concerning defendant Lappin’s participation in
this matter, and (2) any statement or exhibits concerning his use of
administrative remedies to seek review from the action of defendant
Van Racy.
A copy of this order shall be transmitted to the plaintiff.
IT IS SO ORDERED.
DATED:

This 18th day of September, 2012, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge

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