Sikorski v. LNU (1) et al

Filing 4

MEMORANDUM AND ORDER ENTERED: Plaintiff's motions 2 & 3 for leave to proceed in forma pauperis are provisionally granted. Plaintiff is granted to and including October 14, 2011, to show cause why this matter should not be summarily dismisse d. The failure to file a timely response may result in the dismissal of this action without additional prior notice to the plaintiff. Signed by Senior District Judge Sam A. Crow on 9/14/2011. (Mailed to pro se party William Lynndon Sikorski by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WILLIAM LYNNDON SIKORSKI,
Plaintiff,
CIVIL ACTION
No. 11-3152-SAC

vs.
(FNU)(LNU), ADMINISTRATOR,
CHASE COUNTY JAIL, et al.,

Defendants.

MEMORANDUM AND ORDER
This matter comes before the court on a civil rights
complaint filed pursuant to 42 U.S.C. § 1983 by a prisoner
confined at the Wyandotte County Detention Center, Kansas City,
Kansas.
Plaintiff proceeds pro se and seeks leave to proceed in
forma pauperis.

This motion is governed by 28 U.S.C. § 1915.

Pursuant to 28 U.S.C. § 1915(b)(1), the court must assess as an
initial partial filing fee twenty percent of the greater of the
average monthly deposits or average monthly balance in the
prisoner's account for the six months immediately preceding the
date of filing of a civil action.
Having examined the limited records available, the court
finds the average monthly deposit to plaintiff's account is

$14.56, and the average monthly balance is $1.59.

However, the

court

supplied

takes

note

that

the

financial

statement

by

plaintiff reflects a negative balance of approximately $30.00 in
late August 2011.

Having considered this, the court will grant

provisional leave to proceed in forma pauperis.1
Screening
The Court must conduct a preliminary screening of a civil
complaint brought by a prisoner against a governmental entity or
an officer or employee of such an entity.

28 U.S.C. § 1915A(a).

Likewise, the court must screen a civil complaint filed in forma
pauperis by any litigant.

28 U.S.C. § 1915(e)(2).

Following

this review, the court must dismiss a complaint, or any portion
of it, that presents claims that are frivolous or malicious,
fails to state a claim upon which relief may be granted, or
seeks monetary relief from a defendant who is immune from such
relief. 28 U.S.C. §§ 1915A(b), 1915(e)(2)(B).
All relevant events in the present action occurred during
plaintiff’s incarceration in the Chase County Jail.
June 1, 2011, plaintiff slipped and fell.

On or about

He told staff he

needed to go to the hospital or to return to the Wyandotte
1

Plaintiff is advised that he remains obligated to pay the
$350.00 filing fee in this action. These payments will be
made in installments calculated pursuant to 28 U.S.C.
§1915(b)(2).
2

County Jail.

However, he was placed on bedrest and meals were

brought to him.
On June 4, 2011, plaintiff attempted to get out of bed,
unassisted, in the early morning.

He slipped and required staff

assistance to be put back in bed.

A nurse checked on him mid-

morning and brought an adult diaper, which was seen by other
inmates.

Two other inmates carried plaintiff to segregation.

Plaintiff complains the jail staff failed to follow rules
and

regulations,

exposed

him

to

humiliation

and

emotional

suffering caused by the ridicule of other inmates due to the
diaper, and that he suffered inhumane treatment due to the
transfer to segregation by other inmates.

The court construes

the complaint to allege a violation of his rights under the
Eighth Amendment’s ban on cruel and unusual punishment.
First, to state an Eighth Amendment claim for failure to
provide medical care, “a prisoner must allege acts or omissions
sufficiently harmful to evidence deliberate indifference to
serious medical needs.”
(1976).

Estelle v. Gamble, 429 U.S. 97, 106

This standard includes both an objective component,

showing that the pain or deprivation be sufficiently serious,
and a subjective component, showing that the government officials acted with a sufficiently culpable state of mind.
v. Seiter, 501 U.S. 294, 298–99 (1991).
3

Wilson

A medical need is sufficiently serious “if it is one that
has been diagnosed by a physician as mandating treatment or one
that is so obvious that even a lay person would easily recognize
the necessity for a doctor's attention.”

Garrett v. Stratman,

254 F.3d 946, 949 (10th Cir.2001)(quotation omitted). The court
assumes for purposes of screening the complaint that plaintiff’s
condition satisfies this component.
The subjective component is met “if an officer knows of and
disregards an excessive risk to a detainee's health or safety.
Essentially, the officer must 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.”

Olsen v. Layton

Hills Mall, 312 F.3d 1304, 1315 (10th Cir. 2002)(citations and
punctuation omitted).

Here, it is apparent that plaintiff was

given medical attention and that jail officers provided meals to
him in his cell.

He was seen by a nurse, and he was transferred

to a segregated housing area after he fell the second time.2
While plaintiff expressed a preference for a transfer to a
hospital or a return to the Wyandotte County Jail, his disagreement with the medical attention offered does not give rise to a

2

It is unclear precisely when plaintiff was returned to the
Wyandotte County Jail; however, he executed the complaint
there on August 18, 2011.
4

cognizable claim for relief.

See Perkins v. Kansas Dept. of

Corrections, 165 F.3d 803, 811 (10th Cir.1999)(“a prisoner who
merely disagrees with a diagnosis or a prescribed course of
treatment does not state a constitutional violation”).
Likewise, to the extent plaintiff complains of his transfer
to segregation by other inmates, the complaint does not suggest
either a deliberate indifference to plaintiff’s medical needs or
a culpable state of mind by any governmental officer.
Finally, to the extent that plaintiff seeks compensatory
damages for emotional suffering caused by the responding nurse’s
production of the diaper in view of the other prisoners, he
fails to state a claim for relief.
The Prison Litigation Reform Act, 42 U.S.C. § 1997e, bars
a prisoner from bringing a claim “for mental or emotional injury
suffered while in custody without a prior showing of physical
injury.”

See 42 U.S.C. § 1997e(a) and (e). “[A]lthough claims

for mental and emotional distress can be brought pursuant to §
1983, ...

1997e(e) provides that ‘such a suit cannot stand

unless the plaintiff has suffered a physical injury in addition
to

mental

or

emotional

harms.’”

Turner

v.

Schultz,

130

F.Supp.2d 1216, 1222–23 (D.Colo. 2001)(quoting Perkins v. Kansas
Department of Corrections, 165 F.3d 803, 807 (10th Cir. 1999)).
Plaintiff’s claim of emotional suffering as a result of the
5

ridicule he suffered from other inmates because of the diaper
does not rest on an allegation of physical injury caused by a
government officer, and therefore, it fails to state a claim
upon which relief may be granted.
For these reasons, the court is considering the summary
dismissal

of

this

action.

Plaintiff

will

be

granted

an

opportunity to show cause why this dismissal should not be
entered.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motions
for leave to proceed in forma pauperis (Docs. 2 and 3) are
provisionally granted.
IT IS FURTHER ORDERED plaintiff is granted to and including
October 14, 2011, to show cause why this matter should not be
summarily dismissed for the reasons set forth.

The failure to

file a timely response may result in the dismissal of this
action without additional prior notice to the plaintiff.
A copy of this order shall be transmitted to the plaintiff.
IT IS SO ORDERED.
Dated at Topeka, Kansas, this 14th day of September, 2011.

S/ Sam A. Crow
SAM A. CROW
United States Senior District Judge
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