Smith v. Lappin et al

Filing 21

MEMORANDUM AND ORDER ENTERED: This matter is dismissed. Signed by Senior District Judge Sam A. Crow on 9/30/2013. (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 and VAN RACY,
Defendants.

MEMORANDUM AND ORDER
This matter is a civil rights action filed pursuant to Bivens
v. Six Unknown Named Agents, 403 U.S. 388 (1971).1 Plaintiff, a former
federal prisoner, commenced this action while in a halfway house. He
proceeds pro se and in forma pauperis and seeks damages related to
an alleged denial of adequate medical care.
Screening
The federal in forma pauperis statute, 28 U.S.C. § 1915, “is
designed to ensure that indigent litigants have meaningful access to
the federal courts.” Neitzke v. Williams, 490 U.S. 319, 324 (1989).
The statute authorizes a federal court to summarily dismiss an action
brought in forma pauperis if it determines the allegation of poverty
is false, the matter is frivolous or malicious, the action fails to
state a claim upon which relief may be granted, or the action seeks
monetary damages against a defendant who is immune from that relief.
28 U.S.C. § 1915(e)(2). A dismissal under this provision may be made
1

While plaintiff commenced the action using a form complaint for an action pursuant
to 42 U.S.C. § 1983, the court liberally construes this pro se complaint against
employees of the federal Bureau of Prisons as an action pursuant to Bivens. See
Ashcroft v. Iqbal, 556 U.S. 662, 675-76 (2009)(“the implied cause of action [under
Bivens] is the federal analog to suits brought against state officials under 42
U.S.C. § 1983”)(internal quotation omitted).

prior to the service of process. Neitzke, 490 U.S. at 324.
Plaintiff names as defendants Harley Lappin, Director of the
federal Bureau of Prisons (BOP), and Van Racy of the BOP Community
Corrections Office in Kansas City, Kansas. He broadly asserts the
defendants’ negligence subjected him to cruel and unusual punishment.
By a previous order, the court directed plaintiff to identify
any

personal

participation

by

defendant

Lappin

and

to

supply

additional information concerning his use of administrative remedies
to exhaust his claims, as required by the Prison Litigation Reform
Act. See 42 U.S.C. § 1997e(a).
Exhaustion of remedies
Section

1997e(a)

applies

to

all

inmate

suits

concerning

confinement. Porter v. Nussle, 534 U.S. 516, 532 (2002). Likewise,
the use of available administrative remedies before commencing an
action

is

mandatory.

See

Woodford

v.

Ngo,

548

U.S.

81,

85

(2006)(“Exhaustion is no longer left to the discretion of the district
court, but is mandatory.”)
Plaintiff filed a response (Doc. 19), and provided materials that
trace the medical assessments conducted on him in January 2010, April
2011, and January 2012. The most recent findings include a mild loss
in disc height and hydration, a mild bulging disc, a mild broad-based
herniated disc, minimal displacement of a nerve root, osteoarthritis,
and minimal stenosis. (Doc. 19, Attach., p. 2.)
There

is

no

showing,

however,

that

plaintiff

pursued

an

administrative claim on the issue presented here, namely, that
defendant Van Racy violated his constitutional rights by denying him
surgery during his halfway house placement.
The court notes that materials submitted in support of the

complaint reflect that plaintiff pursued administrative remedies
prior to his release to the Residential Reentry Center. The responses
prepared at that time made concluded the plaintiff had received
appropriate care for his complaint of back pain:
1) The institutional response states, in part, “A review of
your medical records indicates that you [have] been seen
on numerous occasions for your complaint of back pain.
It also indicates that you have been placed on pain
medication regimen to help relieve pain in your back. On
February 2, 2009, you had an X-Ray of your back, and
results were negative.” (Doc. 1, Attach., p. 8.)
2) The regional response states, in part, “On April 3, 2009,
you were seen by the staff physician and you complained
of chronic lower back pain…. You also denied any recent
trauma. The staff physician performed an examination and
evaluation. The physician ordered an injection of
Ketorolac … to provide relief for your chronic back pain,
and he told you to get a follow-up at Chronic Care Clinic.
On June 26, 2009, you were seen by the staff physician
for a Chronic Care visit follow-up. You received an MRI
of the lumbar spine, which revealed a moderate posterior
disc bulge … with disc narrowing. You were advised by the
physician in the interim to perform muscle strengthening
exercises. On August 4, 2009, an administrative note by
the CD indicated he submitted a referral for a
Neurosurgeon to perform a neurosurgical consultation due
to herniated discs. The Neurosurgeon consultation
request has been submitted and scheduled….” (Id., p. 11.)
3) The national response states, in part, “[Y]ou were
evaluated by a consultant neurosurgeon on September 22,
2009,
who
diagnose
you
with
lumbar
radiculopathy…with…foraminal
narrowing.
You
were
informed by the specialist that this was not a life
threatening lesion and a recommendation was made for you
to received conservative treatment at this time. Further
review of your medical record reveals you were prescribed
appropriate medication in order to treat your condition
conservatively.” (Id., p. 14.)
Plaintiff entered the Residential Re-entry Center in early
December 2009; he later reported to the court that his back surgery

had been scheduled for August 19, 2010 (Doc. 7).
None of this material suggests that plaintiff properly exhausted
the claim he now presents against defendant Van Racy, nor does the
record support a claim of a constitutional violation. The “negligent
treatment of a medical condition does not constitute a medical wrong
under the Eighth Amendment.” Duffield v. Jackson, 545 F.3d 1234, 1239
(10th Cir. 2008)(internal quotations omitted). Rather, to establish
a claim under the Eighth Amendment, a plaintiff must show “deliberate
indifference to serious medical needs”. Estelle v. Gamble, 429 U.S.
97 (1976).

This standard requires both an objective showing that the

deprivation is “sufficiently serious”, Farmer v. Brennan, 511 U.S.
825, 834 (1994); and a subjective component that is satisfied where
a prison official “knows of and disregards an excessive risk to inmate
health and safety”. Id. at 837. The complaint alleges that defendant
Van Racy sought materials from plaintiff that included a synopsis from
his physician, a copy of medical records, and a medical opinion that
plaintiff would be totally disabled unless the surgery was allowed
in April 2010. (Doc. 1, p. 2.) There is no showing that plaintiff
provided this material, or that defendant had access to any other
materials that would reasonably suggest that delay in the surgery
would subject plaintiff to an extreme level of pain that could not
otherwise be controlled.
Accordingly, because the record shows neither exhaustion of the
claim

against

defendant

nor

any

evidence

that

suggests

a

constitutional violation by him, the court concludes plaintiff states

no claim for relief against this defendant.
Personal participation
The personal participation of a defendant is an essential
allegation in a civil rights action. See Bennett v. Passic, 545 F.2d
1260, 1262-63 (10th Cir. 1976). Where a defendant is a supervisor, he
may not be held liable for allegedly unconstitutional conduct of a
subordinate on a theory of respondeat superior. See Ashcroft v. Iqbal,
556 U.S. 662, 676 (2009). See Dodds v. Richardson, 614 F.3d 1185, 1198
(10th Cir. 2010)(“[W]hen a plaintiff sues an official under Bivens or
§

1983

for

conduct

‘arising

from

his

or

her

superintendent

responsibilities,’ the plaintiff must plausibly plead and eventually
prove

not

only

that

the

official’s

subordinates

violated

the

Constitution, but that the official by virtue of his own conduct and
state of mind did so as well.”)
The court has examined the complaint and all materials submitted
by plaintiff and finds no personal participation by defendant Lappin.
Because such participation is an essential allegation, the court
concludes plaintiff states no claim for relief against this defendant.
Conclusion
For the reasons set forth, the court concludes this matter is
subject to dismissal. Plaintiff has not demonstrated exhaustion of
the claim against defendant Van Racy, has not alleged personal
participation by defendant Lappin, and does not state a claim for
relief under the Eighth Amendment.
IT IS, THEREFORE, BY THE COURT ORDERED this matter is dismissed.

A copy of this order shall be transmitted to the plaintiff.
IT IS SO ORDERED.
DATED:

This 30th day of September, 2013, at Topeka, Kansas.

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