Martino v. United States Marshal Service et al

Filing 3

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted thirty (30) days in which to submit his complaint upon forms provided by the court and to show cause why his claims should not be dismissed. Signed by Senior District Judge Sam A. Crow on 6/23/2011. (Mailed to pro se party Joseph Anthony Martino by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JOSEPH A. MARTINO,
Plaintiff,
v.

CASE NO.

11-3075-SAC

UNITED STATES MARSHAL
SERVICE, et al.,
Defendants.
MEMORANDUM AND ORDER
This civil complaint was filed pro se by an inmate of the
Federal

Correctional

Institution,

Terminal

Island,

California.

Plaintiff names as defendants Rich Meffron, Supervisor United States
Marshal Service (USMS); Jackson County Detention Center, Holton,
Kansas

(JCDC);

Charles

Cornell,

Jackson

County

Sheriff;

James

Gilchrist, Captain, JCDC; Holton Family Health Clinic; and “John
Does 1-25.”

Plaintiff paid the filing fee.

FACTUAL ALLEGATIONS AND CLAIMS
As the factual basis for his complaint, Mr. Martino alleges as
follows.

On March 25, 2008, he was arrested in Saline County,

Kansas, for federal drug law violations.

A federal grand jury

returned an indictment against him. He was transferred into federal
custody and to Topeka where he was “under the supervision of
Defendant Meffron.”

After arraignment, plaintiff was ordered into

the care and custody of U.S. Marshal (USM) Meffron and others
unknown.

He was then transported to the care and custody of

defendant JCDC, under the supervision of defendants Sheriff Cornell
and Captain Gilchrist and others unknown. At all relevant times, he

was awaiting federal grand jury proceedings, and was “under the care
and control” of the USMS “and those contracted facilities.”

During

intake processing at the JCDC, he stated that he has Jobbs Syndrome,
back problems and had been prescribed medication by his private
physician.

On March 31, 2008,1 plaintiff requested to see medical

staff due to back pain and a skin infection on his shoulder.

About

five days later, plaintiff “received a written response . . . that
his medical request was sent to the ‘Feds’ for approval.”

The

medical treatment was approved, and on April 4, 2008, plaintiff was
scheduled to see “the jail’s contract medical staff” for the
infection on his shoulder that “was becoming increasingly worse.”
He was not seen for unknown reasons even though other inmates were
seen, and was rescheduled to the following week.
on April 9, 2008.

The same occurred

On April 16, 2008, he was seen “by Defendant

Holton” and prescribed an antibiotic.

On September 23, 2008, he

requested medical attention for a “nasal infection outside his
nose.”

He was seen “shortly thereafter,” a culture was done, and

medicine was prescribed.

On September 27, 2008, a positive finding

of Methicillian-Resistant Staphlococcus Aureus (MRSA) was made from
the culture.

New medication was prescribed, but “no follow up care

was given.”

However, plaintiff also alleges that during April

through December 2008, he was treated for MRSA and charged for
prescriptions and medical treatment.2
On December 12, 2008, plaintiff was “granted pretrial release”
1

The dates provided by plaintiff are preceded by “on or about.”

2
A pretrial detainee’s right to receive adequate medical care is
protected by the Fourteenth Amendment and the standard for evaluating his claim
is the same as under the Eighth Amendment. A plaintiff must allege “deliberate
indifference to serious medical needs.” Meade v. Grubbs, 841 F.2d 1512, 1530 (10th
Cir. 1988); Garcia v. Salt Lake County, 768 F.2d 303, 307 (10th Cir. 1985).

2

and allowed to return to California.

While on pretrial release in

California from April 2009 through October 2009, plaintiff was
treated for “MRSA outbreaks” by private healthcare providers.
treatment

included

“several

surgical

procedures”

significant pain and “scar deformities.”

that

His

caused

He was required to have

“multiple (30 plus debridements) and extensive surgery to remove
scar tissue” from his back “the size of a football” in “hopes of
getting the tissue to heal” and to “remove the active and extremely
painful calcified MRSA.”
Plaintiff claims that defendants “knowingly and willfully”
failed to follow “routine maintenance” for sanitary and healthful
living

conditions

“to

prevent

disease”,

including

failure

to

implement screening measures for infection for all inmates, and that
substandard conditions at the JCDC resulted in him and “a number of
other detainees” being exposed to and infected with MRSA.3

He also

claims that he was denied proper diagnosis and treatment, which
resulted in “prolonged and improper initial treatment” and caused
“irreparable harm, pain, and unneeded suffering.”

Plaintiff claims

that as a result of the MRSA, his immune system has been permanently
damaged so that he is in need of life long medical care and
treatment, and that he has suffered significant pain and scar
deformities from multiple surgical procedures.

He further claims

that as a direct result of the MRSA, he has suffered from “multiple
psychological conditions” including a form of post traumatic stress,
3
Plaintiff alleges that on or about November 23, 2009, “the United
States District Court for the District of Kansas found that plaintiff’s MRSA
condition was in fact contracted while plaintiff was incarcerated at the (JCDC).”
Taking judicial notice of the criminal court file, the court can find no such
recorded finding at this time. Nor is that a finding that would normally be
entered in a criminal case. See U.S. v. Martino, 08-cr-40027-SAC (terminated
12/15/2009).

3

depression

and

others

psychiatric treatment.

requiring

ongoing

psychological

and

Plaintiff additionally alleges that he is

now uninsurable, has incurred thousands of dollars in medical and
pharmacy costs due to his MRSA condition, and that he has been sued
and harassed by collection agencies as a result of his outstanding
medical bills.
Plaintiff

generally

claims

that

defendant

Meffron

“was

responsible for the inmate supervision, control, security, hygiene,
food service, physical plant, and staff and training among other
things for all federal detainees” being held at the JCDC.

He

further claims that Jackson County “was responsible for the well
being of all individuals incarcerated in” JCDC, and that defendants
Cornell and Gilchrist and other unknown individuals were responsible
for “the operations of the jail system.”

He also claims that

“pursuant to the agreement between” the USMS and Jackson County,
“the responsibility for federal inmates requiring medical and or
dental care must first be approved by the U.S. Marshal,” that the
JCDC by and through the Sheriff is responsible for arranging medical
and dental visits to health care facilities, and that the Sheriff
has

the

“ultimate

responsibility

to

make

sure”

standards

are

followed and agreements are complied with.

SCREENING
Because Mr. Martino is a prisoner, the court is required by
statute to screen his complaint and to dismiss the complaint or any
portion thereof that is frivolous, fails to state a claim on which
relief may be granted, or seeks relief from a defendant immune from
such relief.

28 U.S.C. § 1915A(a) and (b).
4

Having screened all

materials filed, the court finds the complaint is subject to being
dismissed.

LEGAL STANDARDS
A court liberally construes a pro se complaint and applies
“less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
litigant’s

“conclusory

allegations

Nevertheless, a pro se

without

supporting

factual

averments are insufficient to state a claim upon which relief can be
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

based.”

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.”
1997).

Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.
The court employs the same standard for dismissal under §

1915(e)(2)(B)(ii) as that used for motions to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6).
Cir.

2007).

To

Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th

avoid

dismissal,

the

complaint’s

“factual

allegations must be enough to raise a right to relief above the
speculative level.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

555 (2007)(citation omitted).

Put another way, there must be

“enough facts to state a claim to relief that is plausible on its
face.”

Id. at 570.

The court accepts all well-pleaded allegations

in the complaint as true and considers them in the light most
favorable to the nonmovant.
(10th Cir. 2006).

Anderson v. Blake, 469 F.3d 910, 913

“[W]hen the allegations in a complaint, however

true, could not raise a claim of entitlement to relief,” dismissal
is appropriate. Twombly, 550 U.S. at 558. The complaint must offer
“more than labels and conclusions, and a formulaic recitation of the
5

elements of a cause of action.”

Id. at 555.

Having screened all

materials filed, the court finds that this complaint is subject to
being dismissed for the following reasons.

FORM COMPLAINT REQUIRED
Plaintiff’s complaint is not upon court provided forms as
required by local rule.
complaint upon forms.

He shall be given time to submit his

If he fails to comply with this requirement

within the time allotted, this action may be dismissed without
further notice.

IMPROPER DEFENDANTS
Defendant Jackson County Detention Center is a jail building
and not a “person” subject to a suit for money damages in a civil
rights action.

“Holton Family Health Clinic” is also not a person.

Accordingly, these defendants should be dismissed from this action.
It is not clear whether or not Mr. Martino meant to name the County
as a defendant.

If he did, he must allege sufficient facts in his

from complaint, as opposed to conclusory statements, indicating
municipal liability. “Municipal entities and local governing bodies”
such as counties do not enjoy absolute immunity from suit under §
Moss v. Kopp, 559 F.3d 1155, 1168 (10th Cir. 2009).

1983.”

However, “[t]o establish a claim for damages under § 1983 against
municipal entities or local government bodies, the plaintiff must
prove (1) the entity executed a policy or custom (2) that caused the
plaintiff to suffer deprivation of constitutional or other federal
rights.”
County

Id.

liable

Plaintiff appears to be seeking to hold Jackson
based

upon

the

acts
6

of

its

individual

county

employees.

“‘[A] municipality cannot be liable under § 1983 on a

respondeat

superior

theory.’”

Leatherman

v.

Tarrant

County

Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166
(1993)(quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691
(1978)).

STATUTE OF LIMITATIONS
“[An] action brought pursuant to 42 U.S.C. § 1983 or 28 U.S.C.
§ 1331,4 is subject to the statute of limitations of the general
personal injury statute in the state where the action arose.”

See

United States v. Kubrick, 444 U.S. 111, 120 (1979); Hardin v.
Straub, 490 U.S. 536, 539 (1989).

K.S.A. § 60-513(a)(4) provides a

two-year limitations period for bringing an action “for injury to
the rights of another.”
While state law governs the length of the limitations period
and tolling issues, “the accrual date of a § 1983 cause of action is
a question of federal law.”
(2007).

Wallace v. Kato, 549 U.S. 384, 388

Under federal law, the claim accrues “when the plaintiff

has a complete and present cause of action.”

Id. at 388 (internal

4
A claim of violation of constitutional rights by a federal official
or employee may be raised under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971) pursuant to 28 U.S.C. § 1331.
See
Martelon v. Temple, 747 F.2d 1348, 1350-51 (10th Cir. 1984), cert. denied, 471
U.S. 1135 (1985)(noting that while 42 U.S.C. § 1983 claims are brought against
state officers, equivalent actions against federal officials must be brought
pursuant to Bivens).
Section 1331 provides jurisdiction over a civil action
“arising under the Constitution, laws or treaties of the United States.”
In
Bivens, the U.S. Supreme Court recognized an implied private remedy for damages
for violation of the Fourth Amendment by “a federal agent acting under color of
his authority.” The Supreme Court later extended Bivens to provide a damages
remedy for violation of the Fifth Amendment Due Process Clause, see Davis v.
Passman, 442 U.S. 228 (1979); and violation of the Eighth Amendment’s guarantee
against cruel and unusual punishment, see Carlson v. Green, 446 U.S. 14 (1980).
“Like an action brought under 42 U.S.C. § 1983, a Bivens action as a general
matter ‘is subject to the statute of limitations of the general personal injury
statute in the state where the action arose’.” Turner v. Schultz, 130 F.Supp.2d
1216, 1221 (D.Colo. 2001)(citing Industrial Constructors Corp. v. United States
Bureau of Reclamation, 15 F.3d 963, 968 (10th Cir. 1994).

7

quotation marks and citation omitted).

In other words, “[a] § 1983

action accrues when facts that would support a cause of action are
or should be apparent.”

Fogle v. Pierson, 435 F.3d 1252, 1258 (10th

Cir. 2006), cert. denied, 549 U.S. 1059 (2007)(internal quotation
marks and citation omitted); see Thorpe v. Ancell, 367 Fed.Appx.
914, (10th Cir. 2010)(unpublished).5

A district court may dismiss a

complaint filed by an inmate if it is patently clear from the
allegations tendered that the action is barred by the statute of
limitations.

Fogle, 435 F.3d at 1258-59 (citing Jones v. Bock, 549

U.S. 199, 214 (2007)); Brown v. Unified School Dist. 501, Topeka
Public Schools, 465 F .3d 1184, 1188 (10th Cir. 2006)(citations
omitted); Johnson v. Johnson County Comm’n Bd., 925 F.2d 1299, 1301
(10th Cir. 1991); see Fratus v. Deland, 49 F.3d 673, 674-75 (10th
Cir. 1995)(district court may consider affirmative defenses sua
sponte when the defense is obvious from the face of the complaint.).
It

plainly

appears

from

the

face

of

the

complaint

that

plaintiff’s claims for actions and inactions that occurred at the
JCDC are barred by the applicable statute of limitations.
acts

or

inactions

alleged

in

the

complaint

as

the

All the
cause

of

plaintiff’s contraction of MRSA at the JCDC, including failure to
immediately diagnose and provide adequate treatment, obviously
occurred on or before December 12, 2008, since he was released to
California on or about that date.

Plaintiff’s claims based upon

these events therefore appear to have accrued no later than December
12, 2008, and the two-year statute of limitations began running
under Kansas law at that time.

Plaintiff’s complaint was executed

5

The unpublished opinions cited herein are not cited as binding
precedent but for persuasive value. See Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.

8

on March 30, 2011.

Plaintiff has not alleged facts suggesting that

he would be entitled to statutory or equitable tolling.

To the

extent that plaintiff is attempting to recover for claims of
unconstitutional conditions of confinement and denial of timely and
adequate medical treatment for MRSA at the JCDC in violation of the
Eighth Amendment, his claims appear to be barred by the applicable
statute of limitations.

Plaintiff will be given time to show cause

why these claims should not be dismissed as barred by the applicable
statute of limitations.
To the extent that plaintiff is claiming negligence on the part
of the defendants who are employees of the USMS, those claims appear
to be time barred under 28 U.S.C. § 2675(a).
of the United States.

The USMS is an agency

Plaintiff claims that the named and John Doe

defendants employed by the USMS acted in a negligent manner.

Under

the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. (FTCA), a
prospective plaintiff must first present his claim in writing to the
appropriate federal agency before he may maintain a common law tort
claim against an employee of the United States based upon acts taken
within the scope of his or her employment.

28 U.S.C. § 2675(a).

Section 2675(a) provides:
An action shall not be instituted upon a claim against the
United States for money damages for injury or loss of
property or personal injury or death caused by the
negligent or wrongful act or omission of an employee of
the government while acting within the scope of his office
or employment, unless the claimant shall have first
presented the claim to the appropriate Federal agency and
his claim shall have been fully denied by the agency in
writing and sent by certified or registered mail. . . .
The statute of limitations for submitting an administrative tort
claim to the agency is two years.
proper

defendant

in

an

FTCA

28 U.S.C. § 2401(b).

complaint
9

is

the

United

The only
States.

“Because the FTCA constitutes a waiver of the government’s sovereign
immunity, the notice requirements established by the FTCA must be
strictly construed.
be waived.”

The requirements are jurisdictional and cannot

Bradley v. United States ex rel. Veterans Admin., 951

F.2d 268, 270 (10th Cir. 1991)(citation omitted). Plaintiff has not
established, or even alleged, that he has met this administrative
prerequisite.

Consequently, this court appears to lack subject

matter jurisdiction over his common law tort claims against the
actual defendant in such claims, the United States, and these claims
are subject to being dismissed.6
IT IS THEREFORE BY THE COURT ORDERED that plaintiff is granted
thirty (30) days in which to submit his complaint upon forms
provided by the court and to show cause why his claims should not be
dismissed as barred by the statute of limitations and for the other
reasons stated herein.
IT IS SO ORDERED.
Dated this 23rd day of June, 2011, at Topeka, Kansas.

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

6
Whether the district court has subject matter jurisdiction over an
FTCA claim is a question of law. Estate of Trenadue v. U.S., 397 F.3d 840, 852
(10th Cir. 2005).

10