Griffin v. Werholtz et al

Filing 25

MEMORANDUM AND ORDER. Defendant Debra Lundrys motion 24 to dismiss or for summary judgment is granted. See attached for more details. Signed by U.S. District Senior Judge Sam A. Crow on 1/5/2012. Mailed to pro se party: Mr. Bobby Griffin, Reg. No. 67104, Hutchinson Correctional Facility, PO Box 1568, Hutchinson, KS 67504 by regular mail. (bmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BOBBY GRIFFIN,
Plaintiff,
vs.

Case No. 10-3203-SAC

ROGER WERHOLTZ, et al.,
Defendants.
MEMORANDUM AND ORDER
This case comes before the court on the motion of the defendant,
Debra Lundry, 1 the Health Services Administrator at Hutchinson Correctional
Facility, to dismiss or grant summary judgment. Plaintiff has not responded
to the motion. Plaintiff Bobby Griffin, an inmate at Hutchinson Correctional
Facility (HCF), filed suit against defendant under 42 U.S.C. §1983, claiming
she violated his 8th Amendment rights by subjecting him to cruel and
unusual punishment based on deliberate indifference to his medical needs
regarding his umbilical hernia.
Motion to Dismiss Standard
To survive a motion to dismiss, a plaintiff must allege facts sufficient
to demonstrate his claim for relief is plausible on its face. Jordan–Arapahoe,
LLP v. Board of County Com'rs of County of Arapahoe, Colo., 633 F.3d 1022,
1025 (10th Cir. 2011) (citing Bryson v. Gonzales, 534 F.3d 1282, 1286
(10th Cir. 2008); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
1Plaintiff’s

Amended Complaint (Doc. 9) names only Debra Lundry as a defendant.

“ ‘A claim has facial plausibility when the [pleaded] factual content [ ] allows
the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.’ “ Jordan–Arapahoe, 633 F.3d at 1025 ( quoting
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1940 (2009)). In making
this determination, the court accepts as true all well-pleaded factual
allegations included in the complaint. Howard v. Waide, 534 F.3d 1227,
1243 (10th Cir. 2008). The court does not, however, accept legal
conclusions, and “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal, 129 S.Ct.
at 1949.
Although a complaint filed pro se by a party must be given a liberal
construction, Haines v. Kerner, 404 U.S. 519, 520 (1972), “conclusory
allegations without supporting factual averments are insufficient to state a
claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). “[The] 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).
Summary Judgment Standard
Summary judgment shall be granted “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). In considering a motion
for summary judgment, the court must view the facts and inferences drawn
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from the record in the light most favorable to the nonmoving party. Burke v.
Utah Transit Auth. and Local 382, 462 F.3d 1253, 1258 (10th Cir. 2006)
(quotation omitted). Although defendant, as the moving party, bears the
initial burden of production, once she meets this burden, Plaintiff “may not
rest on [his] pleadings, but must bring forward specific facts showing a
genuine issue for trial.” Kannady v. City of Kiowa, 590 F.3d 1161, 1169
(10th Cir. 2010) (citation and internal quotations omitted).
Facts
Plaintiff most recently entered the custody of the Department of
Corrections on September 27, 2004. He was initially placed in the reception
and diagnostic center at the El Dorado Correctional Facility, then was
transferred to the Hutchinson Correctional Facility on November 3, 2004,
where he remains.
Defendant Lundry was employed Correct Care Solutions, LLC as the
Director of Nursing in April of 2005, when plaintiff first discovered his hernia.
Defendant was promoted to the position of Health Services Administrator
(HSA) on February 19, 2007, and remains in that position. As HSA, she is
assigned to oversee health care services provided to inmates housed at the
Hutchinson Correctional Facility in Hutchinson, Kansas. Defendant is a
licensed as a registered nurse, but has never seen Plaintiff for purposes of
medical treatment. She is not employed as a care provider or as a decision
maker regarding medical care provided to Plaintiff.
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Defendant responded to a grievance filed by Plaintiff, BB00015893,
which complained about the treatment of his umbilical hernia. Plaintiff
desired more aggressive treatment, including surgery. Defendant’s response
dated April 12, 2010, was based on her review of Plaintiff’s medical file and
on her years of experience as a registered nurse. That response essentially
states the following: she reviewed Plaintiff’s medical record; his hernia had
not increased in size since first documented in April of 2005; Dr.
Bumguardner did not recommend surgical repair of Plaintiff’s hernia; the
doctor’s plan of treatment was for Plaintiff to maintain weight lifting
restrictions of 25 pounds; and Plaintiff’s hernia did not prevent him from
working or participating in work programs, or from any daily activities, or
require “heavy narcotics” for pain control, or require any special treatment.
Doc. 23 & Exh 4.
Defendant additionally responded on July 14, 2010 to a form 9 inquiry
Plaintiff sent to her (Doc. 9, “Exhibit N”), which sought a copy of any written
protocol for treating his umbilical hernia. Defendant told Plaintiff there was
no written protocol for treatment of a hernia, that the facility physician
decided the appropriate treatment for each patient, and that the physician
had decided that treatment was not currently indicated for Plaintiff’s hernia.
Defendant opines that the treatment Plaintiff received for his umbilical
hernia is in line with treatment that was necessary and appropriate for his

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condition. She states that Plaintiff was not refused any treatment he should
have received nor was given any treatment he should not have been given.
Plaintiff disagrees.
Discussion
Exhaustion
Defendant first raises the affirmative defense that Plaintiff has failed to
exhaust his administrative remedies as required by the Prison Litigation
Reform Act (PLRA), 42 U.S.C. § 1997e(a). See Jones v. Bock, 549 U.S. 199,
216 (2007). The exhaustion requirement is mandatory and “unexhausted
claims cannot be brought in court.” Id. at 211.
Defendants' motion is framed in the alternative for summary
judgment, and Defendant has attached materials outside the pleadings.
Because the Court has considered these materials to determine whether
Plaintiff exhausted his administrative remedies before filing this action,
Defendant’s motion is treated as a motion for summary judgment on the
issue of exhaustion. See Fed.R.Civ.P. 12(d); 56.
The Martinez report (Doc. 23) states that “Plaintiff sought to exhaust
his administrative remedies via the grievance process” by grievance
#BB00015893. Plaintiff filed that grievance on April 9, 2010, received a
negative response from defendant Lundry dated April 12, 2010, appealed to
the warden on April 15, 2010, then appealed the warden’s denial to

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Physician Contract Management Consultant for the Kansas Department of
Corrections. Id., p. 5.
Defendant contends solely that the Martinez report fails to include any
grievances filed against her, individually. This argument must fail because
“exhaustion is not per se inadequate simply because an individual later sued
was not named in the grievances.” Jones v. Bock, 549 U.S. 199, 219 (2007).
The court finds no evidence that Plaintiff was ever informed he was required
to identify the wrongdoers in his grievances. Without such notice, “a
grievance satisfies § 1997e(a)'s exhaustion requirement so long as it
provides prison officials with enough information to investigate and address
the inmate's complaint internally.” Kikumura v. Osagie, 461 F.3d 1269,
1285 (10th Cir. 2006), overruled on other grounds as recognized in Robbins
v. Oklahoma, 519 F.3d 1242 (10th Cir. 2008). The Court, having reviewed
Plaintiff’s grievance (Doc. 23, Exh. 4), finds that it gives the officials
adequate notice of the nature of Plaintiff’s complaint, and, in addition to
other matters raised in this case, specifically complains that Ms. Lundry
failed to respond to Plaintiff’s Form 9, which asked her to look into why
“they” were “refusing to treat, or actually repair” his hernia. Id. Plaintiff’s
grievance satisfies the exhaustion requirement because “it is not ‘so vague
as to preclude prison officials from taking appropriate measures to resolve
the complaint internally.”) Kikumura, 461 F.3d at 1283 (quoting Brownell v.

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Krom, 446 F.3d 305, 310 (2d Cir. 2006).
Defendant’s Personal Participation
Defendant also seeks dismissal of Plaintiff's § 1983 claims on grounds
that Plaintiff has failed to allege facts demonstrating that she personally
participated in the alleged deprivation of his constitutional rights.
To establish a claim under § 1983, a plaintiff must prove he was
deprived of a right secured by the Constitution or laws of the United States
and that the alleged deprivation was committed under color of law. American
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). “In order for
liability to arise under § 1983, a defendant's direct personal responsibility for
the claimed deprivation of a constitutional right must be established.” Trujillo
v. Williams, 465 F.3d 1210, 1228 (10th Cir. 2006). A defendant cannot be
held liable in a civil rights action based solely upon his or her supervisory
capacity. Sandifer v. Green, 126 Fed.Appx. 908, 909 (10th Cir. 2005). Nor
can personal participation be shown based solely on one’s denial of a
grievance. Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009).
The amended complaint claims that in April of 2010, Plaintiff submitted
an inmate request to staff member, Form 9, to Debra Lundry, stating that he
wanted to talk to her about repairing his hernia on his belly button because
it was hurting him all of the time, that he had been to the clinic several
times, and that he had stayed overnight at the clinic suffering from “very

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bad” pain. (Doc. 9, p. 3.) Plaintiff alleges Defendant gave no response to this
request.
Plaintiff further alleges that in July of 2010, he submitted another
Form 9 to Debra Lundry asking for the protocol for the treatment of umbilical
hernias, but she denied the existence of any written protocol and referred to
a doctor’s note that treatment of Plaintiff’s hernia was not indicated at that
time. Doc. 9 p. 5.
Defendant shows the Court that she never saw the Plaintiff as a
patient, that she is not a care provider, and that she does not make
treatment decisions. Instead, she is an administrator or overseer.
A plaintiff may demonstrate personal participation “by showing the
defendant-supervisor personally directed the violation or had actual
knowledge of the violation and acquiesced in its continuance.” See
Woodward v. City of Worland, 977 F.2d 1392, 1400 (10th Cir. 1992). Neither
of these is shown here. Plaintiff has presented no facts to dispute
Defendant’s assertion that she was not in charge of his treatment and did
not make his treatment decisions. Plaintiff has not shown any policy,
regulation or practice enforced by Defendant that led to his alleged injury,
see Bruner v. Baker, 506 F.3d 1021, 1026 (10th Cir. 2007) or any
affirmative link between the alleged constitutional deprivation and
Defendant’s acts or failure to act. Summary judgment is therefore warranted

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for Defendant due to her lack of personal participation in the alleged
constitutional deprivation.
Plaintiff’s Medical Needs
Defendant additionally contents that Plaintiff’s medical condition was
not serious enough to be cognizable under § 1983.
The Eighth Amendment right to be free from cruel and unusual
punishment is violated if prison officials show “deliberate indifference to an
inmate's serious medical needs.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir.
2005). A prison official does not violate that standard “unless the official
knows of and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the
inference.” Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (quoting
Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
To make out a constitutional deprivation under this standard, plaintiff
must prove two elements: (1) objectively, the inmate's medical needs were
“sufficiently serious,” and (2) subjectively, the prison official acted with a
“sufficiently culpable state of mind.” Id. at 1230-31; see also Mata, 427 F.3d
at 751.
A medical need is sufficiently serious if it “has been diagnosed by a
physician as mandating treatment or ... is so obvious that even a lay
person would easily recognize the necessity for a doctor's attention.”
Sealock, 218 F.3d at 1209 (quoting Hunt v. Uphoff, 199 F.3d 1220,
1224 (10th Cir.1999)).
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Boyett v. County of Washington, 282 Fed.Appx. 667, 672, 2008 WL
2483286, 4 (10th Cir. 2008).
Plaintiff’s Amended Complaint fails to plead that Plaintiff has a “serious
medical need.” Plaintiff’s allegations show that he was repeatedly seen in the
clinic for his hernia, was given medication for his pain, and was given an
“abdominal binder,” but he wishes to have surgery for his hernia. Plaintiff
complains that he is not being given “proper treatment.” Plaintiff claims that
he was not provided with adequate medical treatment, but this is insufficient
to allege constitutionally deliberate indifference.
A negligent failure to provide adequate medical care, even one
constituting medical malpractice, does not give rise to a constitutional
violation. Moreover, a prisoner who merely disagrees with a diagnosis or a
prescribed course of treatment does not state a constitutional
violation.
Perkins v. Kan. Dep't of Corr., 165 F.3d 803, 811 (10th Cir. 1999) (citation
omitted). Viewed in the light most favorable to the Plaintiff, his complaints
merely reflect differences of opinion regarding the appropriate course of his
medical treatment.
Additionally, the record fails to show that Plaintiff’s umbilical hernia
may have constituted a serious medical need. Plaintiff’s medical records
confirm that he was frequently seen in relation to his hernia. (Doc. 23-2, p.
3-7). Plaintiff was given an abdominal binder, was provided medication, and
was instructed how to reduce the hernia, but the physician deemed Plaintiff
to be repeatedly non-complaint with his instructions. (Doc. 23-2, p. 3-7, 28).
Dr. Bumguarnder told Plaintiff on May 6, 2010 and on other dates that his
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hernia was not severe but was merely cosmetic, and did not require surgery.
(Doc. 9, p. 11, 22; Doc. 23-2, p. 31, 59, 71, 82, 91.)
Defendant’s State of Mind
Even assuming, however, that Plaintiff had a serious medical need,
the Court finds no evidence raising a material question of fact that
Defendant acted with deliberate indifference, which requires a higher degree
of fault than negligence or gross negligence. Berry v. City of Muskogee,
Oklahoma, 900 F.2d 1489, 1495-96 (10th Cir. 1990) (citation omitted).
A prison official has a sufficiently culpable state of mind if the official
“knows of and disregards an excessive risk to inmate health or safety.”
Farmer, 511 U.S. at 837, 114 S.Ct. 1970; see also Estelle v. Gamble,
429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (concluding “a
complaint that a physician has been negligent in diagnosing or treating
a medical condition” does not show deliberate indifference).
Boyett, 282 Fed.Appx. at 672, 2008 WL 2483286, 4. Nothing in the record
suggests that Defendant knew of and disregarded an excessive risk to
Plaintiff’s health, as is required. See Farmer, 511 U.S. at 837.
IT IS THEREFORE ORDERED that Defendant’s motion to dismiss or for
summary judgment is granted.
Dated this 5th day of January, 2012, at Topeka, Kansas.

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

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