Conley (ID 60437) v. McKune et al

Filing 66

ORDER ENTERED: Plaintiff's motion 2 for leave to proceed in forma pauperis is granted. Plaintiff is granted 30 days from the date of this order to file a First Amended Complaint that complies with court rules and sufficiently addresses ident ified deficiencies to avoid summary dismissal of complaint as stating no claim for relief. Plaintiff's motions 4 and 34 for a preliminary injunction and motion 7 for appointment of counsel are denied. Signed by Senior District Judge Sam A. Crow on 8/23/2012. (Mailed to pro se party Anthony Conley by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ANTHONY CONLEY,
Plaintiff,
v.

CASE NO.11-3200-SAC

DAVID MCKUNE, et al.,
Defendants.

O R D E R
This matter comes before the court on a pro se complaint filed
under 42 U.S.C. ' 1983 by a prisoner incarcerated in a Kansas
correctional facility.
identified as:

The defendants named in the complaint are

Kansas Department of Corrections Secretary Ray

Roberts; Kansas Governor Sam Brownback; Lansing Correctional Facility
(LCF) Warden David McKune; LCF Associate Wardens Kyle Deere and Rex
Pryor; LCF Correctional Officer Bryan; LCF Unit Team Manager Andrew
Parks; LCF M-Unit Counselor Joe Pantano; LCF Employee Brett Peterson;
Correct Care Solutions, LLC (CCS); CCS President and CEO Jerry Boyle;
CCS at LCF (CCS-LCF) Health Services Administrator Ellen Bartz; and
CCS-LCF Dentist Kent Murry.
Also before the court is plaintiff=s motion for leave to proceed
without prepayment of the district court filing fee.
Leave to Proceed In Forma Pauperis, 28 U.S.C. ' 1915
Plaintiff must pay the full $350.00 filing fee in this civil
action.

See 28 U.S.C. ' 1915(b)(1)(prisoner bringing a civil action

or appeal in forma pauperis is required to pay the full filing fee).
1

If granted leave to proceed in forma pauperis, plaintiff is entitled
to pay this filing fee over time, as provided by payment of an initial
partial filing fee to be assessed by the court under 28 U.S.C. '
1915(b)(1) and by periodic payments from plaintiff's inmate trust fund
account as authorized in 28 U.S.C. ' 1915(b)(2).
Pursuant to 28 U.S.C. ' 1915(b)(1), the court is required to
assess an initial partial filing fee of 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

representation

a
of

civil

action.

limited

Having

financial

considered

resources

and

plaintiff=s
prison

debt

obligations, the court finds no initial partial filing fee may be
imposed at this time, and grants plaintiff leave to proceed in forma
pauperis.

See 28 U.S.C. ' 1915(b)(4)(where inmate has no means to pay

initial partial filing fee, prisoner is not to be prohibited from
bringing a civil action).

Plaintiff remains obligated to pay the full

$350.00 district court filing fee in this civil action, through
payments from his inmate trust fund account as authorized by 28 U.S.C.
' 1915(b)(2).
Proper Amendment of the Complaint is Required
Plaintiff initiated this action with a 56 page complaint with
251 pages of attached exhibits, seeking damages as well as declaratory
and injunctive relief on allegations that defendants were acting with
deliberate indifference to plaintiff=s serious medical needs, namely
his need for corrective and cosmetic dental treatment.

Plaintiff

states his teeth are severely discolored, crooked, and crowded, and
insists that corrective lifesaving dental care is needed.

Plaintiff

cites in part that he can cut his mouth while eating, that he is at
2

risk of choking on food that can lodge between his teeth, and that
his dental condition is adversely impacting his sinuses.
Plaintiff thereafter submitted various exhibits in support of
his complaint.

These documents cite plaintiff’s developing fear of

dying if his dental needs are not met, and his claim that defendants
have forced him to seek out and use marijuana to alleviate his pain
and suffering.

Related to the allegations in the original complaint,

plaintiff submitted various pleadings titled in some manner as
amending the complaint.
Proposed Amendments
In his first (Doc. 15) attempt to amend the complaint on January
9, 2012, plaintiff modifies the relief being sought to include a demand
for plaintiff’s transfer to a medical center for a complete evaluation
of plaintiff’s medical needs, and for the court to order defendants
to provide plaintiff with marijuana for medical purposes.

In

subsequent attempts to amend (Docs 24, 29, 30, and 32) in March and
April 2012, plaintiff attaches exhibits regarding the continuing
denial of his health care requests and requests for specific medical
care, and alleges his grievances and mail are being mishandled or
ignored.

Citing

defendants’

failure

to

provide

adequate

and

effective treatment for his dental, vision, hearing, and facial hair
problems, plaintiff seeks unimpeded and unlimited access to the
self-treatment protocol he was forced to devise, namely:

medical

marijuana; electronic access through a computer and/or iPad to music,
video, and books; a single cell wherever he is housed; and access to
sexually explicit materials.
Under Rule 15(a)(1) of the Federal Rules of Civil Procedure,
plaintiff may amend his complaint "once as a matter of course" prior
3

to being served with defendants’ response to the complaint.
The rules for the District of Kansas require an amended complaint
to be submitted on a court approved complaint form.
9.1(a).

D.Kan.Rule

The amended complaint must name all defendants and contain

all claims being pursued including any or all of the claims asserted
in the original complaint, as an amended complaint completely
supercedes the existing complaint.

See generally Fed.R.Civ.P. 15 (to

add a party or claim to a complaint, plaintiff must file an Amended
Complaint which completely supercedes the original complaint, and
therefore must contain all claims the plaintiff intends to pursue in
the action including those raised in the original complaint; any
claims not included in the Amended Complaint shall not be considered).
In the present case, however, only one of plaintiff’s “amended”
complaints (Doc. 30) is submitted on a court approved form.
pleading,

which

purports

to

add

one

defendant,

And that

simply

and

inappropriately refers the court to the original complaint for all
other defendants and plaintiff’s claims.
Under the circumstances, the court will grant plaintiff an
opportunity to resubmit his first amended complaint in compliance with
court

rules,

naming

all

defendants

and

identifying

how

each

participated in the alleged violation of plaintiff’s rights under
Eighth

Amendment

regarding

plaintiff’s

dental

needs.

Because

plaintiff proceeds pro se and has already submitted numerous exhibits,
the court finds resubmission of any relevant exhibit already in the
record is not required.
Plaintiff is reminded that the Federal Rules of Civil Procedure
require a complaint, including an amended complaint, to contain "(1)
a short and plain statement of the grounds for the court's jurisdiction
4

...; (2) a short and plain statement of the claim showing that the
pleader is entitled to relief; and (3) a demand for the relief
sought...."

Fed.R.Civ.P. 8(a).

Plaintiff is strongly encouraged to

comply with these requirements.
Plaintiff is further admonished that he cannot treat this action
as a repository for all newly arising complaints about the conditions
of his confinement, and he cannot expand the scope of this action to
avoid the “3-strike” provision in 28 U.S.C. § 1915(g).1

Accordingly,

amendment of the complaint to encompass recent allegations beyond the
alleged deliberate indifference to plaintiff’s dental needs,2 and to
include plaintiff’s growing barrage of demands, will not be allowed.
Other Documents
The filing of documents concerning recent events related to
plaintiff’s Eighth Amendment dental claims will be considered as
supplements rather than amendments.

Fed.R.Civ.P. 15(d).

Plaintiff

is hereby notified that documents related to other claims or
allegations are not relevant to the claims at issue in this matter
will not be considered.

Nor will the court consider or address

repetitive or incomprehensible materials, or plaintiff’s submission
of “Mental Health Writings”

1
28 U.S.C. § 1915(g) contains a A3-strike@ provision which prevents a prisoner
from proceeding in forma pauperis in bringing a civil action or appeal if Aon 3 or
more prior occasions, while incarcerated or detained in any facility, [the prisoner]
brought an action or appeal in a court of the United States that was dismissed on
the grounds that it is frivolous, malicious, or fails to state a claim upon which
relief may be granted, unless the prisoner is under imminent danger of serious
physical injury.@
2

New allegations in the supplemental pleadings include his need for:
specific grooming materials and accommodations; electronic access to music and
educational materials; pornographic materials to maintain his heterosexuality;
medical marijuana for self-treatment; adherence to the teachings of Muhammad for
medical reasons; proper investigation and resolution of his grievances; and specific
pressed clothing.

5

Screening of the Complaint, 28 U.S.C. ' 1915A
Because plaintiff is a prisoner, the court is required to screen
the complaint and to dismiss it or any portion thereof that is
frivolous, fails to state a claim on which relief may be granted, or
seeks monetary relief from a defendant immune from such relief.
U.S.C. ' 1915A(a) and (b).

28

Although a complaint filed pro se by a party

proceeding in forma pauperis must be given a liberal construction,
Haines v. Kerner, 404 U.S. 519, 520 (1972), even under this standard
a pro se litigant=s Aconclusory 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).

Plaintiff bears the burden of alleging Aenough facts to state a claim
to relief that is plausible on its face.@
Twombly, 550 U.S. 544, 570 (2007).

Bell Atlantic Corp. v.

See Robbins v. Oklahoma, 519 F.3d

1242, 1247 (10th Cir.2008)(stating and applying Twombly standard for
dismissing a complaint as stating no claim for relief).
In the instant case, the court notes that plaintiff=s continuous
filing of supplemental materials to the complaint in a manner not
provided by court rules has unduly complicated the court’s initial
review of plaintiff=s claims.
Having reviewed plaintiff’s original and first amended complaint
as supplemented with relevant materials, the court finds the following
claims and defendants are subject to being summarily dismissed as
stating no claim for relief.
1915(e)(2)(B).

28 U.S.C. ' 1915A; 28 U.S.C. '

As indicated above, the court is granting plaintiff

an opportunity to resubmit the First Amended Complaint in compliance
with court rules.

Resubmission of the First Amended Complaint also

allows plaintiff an opportunity to address the following deficiencies
6

identified by the court.
Eleventh Amendment
Plaintiff sues each individual defendant in both their personal
and official capacity.

All claims against state defendants in their

official capacity, however, are barred by the Eleventh Amendment.
Subject to limited exceptions not apparently applicable in this
case, Athe Eleventh Amendment prohibits a citizen from filing suit
against a state in federal court.
1180

(10th

Cir.2002).

Ruiz v. McDonnell, 299 F.3d 1173,

"Eleventh

Amendment

immunity

applies

regardless of whether a plaintiff seeks declaratory or injunctive
relief, or money damages."

Steadfast Ins. Co. v. Agric. Ins. Co.,

507 F.3d 1250, 1252 (10th Cir.2007)(citation omitted).

Employees of

an arm of the state who are sued in their official capacities are
"generally entitled to assert the same immunities as the governmental
entity for which he or she works."

Ruiz, 299 F.3d at 1180 (citation

omitted).
The court thus finds all claims against individual state
defendants sued in their official capacity are subject to being
summarily dismissed.
Alleged Violations of State Statutes and Regulations
To the extent plaintiff seeks relief based upon defendants=
alleged violation of the Kansas Constitution, Kansas state law, or
Kansas prison regulations, no cognizable claim for relief under ' 1983
is stated.

See Jones v. City & County of Denver, Colo., 854 F.2d 1206,

1209 (10th Cir. 1988)(' 1983 provides relief for violations of federal
law by individuals acting under color of state law, but provides no
basis for relief for alleged violations of state law).
Given the court’s assessment herein that plaintiff’s federal
7

claims have no viability, the court declines to exercise its
jurisdiction over plaintiff's supplemental state law claims.

See

Smith v. City of Enid By and Through Enid City Com'n, 149 F.3d 1151,
1156 (10th Cir.1998)("When all federal claims have been dismissed,
the court may, and usually should, decline to exercise jurisdiction
over any remaining state claims.")(citing 28 U.S.C. § 1367(c)(3) and
Ball v. Renner, 54 F.3d 664, 669 (10th Cir.1995)).
Personal Participation
A defendant=s personal participation in the alleged violation of
plaintiff=s constitutional rights is essential for stating a claim for
relief under ' 1983.

Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th

Cir.2008); Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir.1996).
Plaintiff may not rely on a defendant=s supervision of alleged
wrong-doers to proceed under ' 1983 because government officials are
not vicariously liable for the misconduct of their subordinates.
AThere is no concept of strict supervisor liability under ' 1983.@
Serna v. Colorado Department of Corrections, 455 F.3d 1146, 1151 (10th
Cir.2006)(quotation omitted).
Thus at a minimum, the court finds defendants Brownback, Roberts,
McKune, Deere, and Pryor are subject to being summarily dismissed
because

plaintiff

fails

to

sufficiently

allege

any

personal

participation by these defendants in the alleged violation of his
constitutional rights.
“notified”

or

“aware

Mere reliance on these defendants being
of”

plaintiff’s

concerns

via

plaintiff’s

correspondence or administrative appeals is insufficient.
No Actionable Constitutional Claim
ATo state a claim under ' 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the United
8

States and must show that the alleged deprivation was committed by
a person acting under color of state law.@
42, 48 (1988).

West v. Atkins, 487 U.S.

The Eighth Amendment, applicable to the states through

the fourteenth amendment, prohibits the infliction of cruel and
unusual punishment on prisoners.
296-97 (1991).

Wilson v. Seiter, 501 U.S. 294,

Prison conditions violate the Eighth Amendment if

they cause the "unnecessary and wanton infliction of pain" grossly
disproportionate to the crime underlying the inmate's incarceration
or result in a deprivation of basic human needs.
452 U.S. 337, 346-47 (1981).

Rhodes v. Chapman,

An inmate must allege sufficient facts

to plausibly establish that he "is incarcerated under conditions
posing a substantial risk of serious harm" and that a prison official
acted with deliberate indifference to his health and safety.
v. Brennan, 511 U.S. 825 (1994).

Farmer

See also Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007)(a complaint must allege sufficient
facts, taken as true, "to state a claim to relief that is plausible
on its face").
To Astate a valid claim of medical mistreatment under the Eighth
Amendment ... a prisoner must allege acts or omissions sufficiently
harmful to evidence deliberate indifference to serious medical needs.@
Self v. Crum, 439 F.3d 1227, 1230 (10th Cir.2006).

The obligation

to provide medical treatment for prisoners includes dental care.
Ramos v. Lamm, 639 F.2d 559, 574 (10th Cir.1980)).
Here, plaintiff contends defendants are acting with deliberate
disregard to plaintiff=s reporting of physical and mental problems
related to plaintiff=s teeth being discolored, overcrowded, and out

9

of alignment.
recommended

3

Plaintiff claims defendant Murry at one time

braces

which

were

never

provided,

but

plaintiff

over-characterizes this outcome as interference with a medical order.
Plaintiff acknowledges that prison medical staff have reviewed
plaintiff=s dental needs, but complains that adequate treatment has
not been provided to correct his problems and alleviate or prevent
further mental anguish.
requests

for

cosmetic

Plaintiff also cites the refusal of his
surgery,

for

referral

to

a

specialized

orthodontist for evaluation and treatment, for greater investigation
of his claim that his sinuses and breathing are restricted by
overcrowded teeth and a high roof mouth, and for a mental health
evaluation.
Notwithstanding plaintiff=s own assessment of the severity of his
dental condition and the treatment he believes is required, his
Adisagreement with the course of treatment provided does not state a
constitutional violation."

Perkins v. Kan. Dep't of Corr., 165 F.3d

803, 811 (10th Cir.1999); see also Fitzgerald v. Corr. Corp. of Am.,
403 F.3d 1134, 1142 (10th Cir.2005)(holding mere difference of opinion
about treatment, even among professionals, does not give rise to claim
under the Eighth Amendment).

This is true even if the treatment in

question constituted medical malpractice.

Fitzgerald, 403 F.3d at

1143; Perkins, 165 F.3d at 811.
Moreover, the subjective component to the Eighth Amendment
3

Plaintiff=s allegations include specific claims that he can cut
his mouth or cheek when he chews, that food lodged in his teeth present
a choking hazard, that he is unable to seal his lips and hold saliva,
that he is suffering from compensating muscle strain from jutting out
his bottom jaw, and that he is suffering uneven wear on the chewing
surface of his teeth. Plaintiff also alleges his dental condition
is unattractive to others, and Acauses me to act out in violence.@
10

deliberate

indifference

standard

extraordinary degree of neglect.@

Ais

not

satisfied,

absent

Self, 439 F.3d at 1232.

an

Matters

such as Awhether to consult a specialist or undertake additional
medical testing@ fall within traditional medical judgments, and
generally do not violate the Eighth Amendment.

Id.

The court finds plaintiff=s allegations are insufficient to
plausibly establish that any defendant acted with knowing disregard
to an excessive risk to plaintiff=s health, thus plaintiff=s attempt
to seek relief under the Eighth Amendment Adeliberate indifference@
standard is subject to being summarily dismissed.
Plaintiff is further advised that to the extent his supplemental
documents center on allegations of staff mishandling of his health
care requests, grievances, or mail seeking intervention or review of
his medical care, these allegations are insufficient to state an
actionable Eighth Amendment claim of deliberate indifference to a
serious medical need, or a viable claim that plaintiff is being denied
his right to due process or access to the courts.
Corporate Defendant
To the extent plaintiff seeks relief from CCS under ' 1983, he
must allege sufficient facts to plausibly satisfy in part that he was
deprived of a constitutional right pursuant to a CCS practice or
policy.

See Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th

Cir.2003)(applying municipal liability test in Monell to private
entities being sued for relief under ' 1983).4

Plaintiff appears to

claim that cosmetic surgery and braces are not provided pursuant to
4

See Monell v. Dep't of Social Services of City of New York, 436
U.S. 658, 691-94 (1978)(stating requisite elements of a ' 1983 claim
against a municipality or private entity performing a state function).
11

CCS policy.

Plaintiff=s bare reference to a CCS policy is conclusory

at best, but more significantly, the court has already determined that
plaintiff has not sufficiently alleged the deprivation of braces and
cosmetic surgery in his case violated his constitutional rights.

To

the extent plaintiff seeks relief under ' 1983 against CCS or any CCS
employee, including President and CEO Boyle, the complaint presents
no viable claim for relief under ' 1983.
Motions for Preliminary Injunction
Under Rule 65(b) of the Federal Rules of Civil Procedure, a
temporary restraining order or preliminary injunction may be granted
only if Ait clearly appears from specific facts shown by affidavit or
by the verified complaint that immediate and irreparable injury, loss
or damage will result to the applicant.@

To obtain temporary or

preliminary injunctive relief, a moving party must be able to
demonstrate that there is a substantial likelihood of prevailing on
the merits; that he will suffer irreparable injury if preliminary
injunctive relief is not provided; that the threatened injury to the
movant outweighs whatever damage the proposed injunction may cause
the opposing party; and that issuance of the preliminary injunctions
would not be adverse to the public interest.

Kikumura v. Hurley, 242

F.3d 950, 955 (10th Cir.2001).
In the instant case, plaintiff’s first motion for a preliminary
injunction (Doc. 7) broadly claims he fears for his life if corrective
and cosmetic dental care is not provided for an admitted lifelong
condition, or if he is not provided medical marijuana pending
resolution of this action.

Finding none of the prerequisites for

obtaining a preliminary injunction are satisfied, this motion is
denied.
12

Plaintiff’s second motion (Doc. 34) is also denied because
plaintiff seeks preliminary relief on recent claims and allegations
not properly before the court.

Other than a broad demand for medical

services, plaintiff specifically demands relief to address his
concern

and

alleviate

his

distress

over

maintaining

his

heterosexuality, to be provided specific grooming materials, and to
be assigned a single cell in order to facilitate his individual needs.
Motion for Counsel
Plaintiff=s motion and repeated informal requests for appointment
of counsel are denied without prejudice.

Plaintiff has no right to

the assistance of counsel in this civil action, Durre v. Dempsey, 869
F.2d 543, 647 (10th Cir.1989), and bears the burden of convincing the
court that his claims have sufficient merit to warrant appointment
of counsel, Steffey v. Orman, 461 F.3d 1218, 1223 (10th Cir.2006).
Here, plaintiff contends appointed counsel is needed to make all
decisions regarding plaintiff=s medical care, and to handle the complex
legal

issues

involved

in

plaintiff=s

claims.

Having

reviewed

petitioner's claims, his ability to present said claims, and the legal
issues involved, the court finds the appointment of counsel in this
matter is not warranted.

See Long v. Shillinger, 927 F.2d 525, 526-27

(10th Cir.1991)(factors to be considered in deciding motion for
appointment of counsel).
Notice and Show Cause Order to Plaintiff
For the reasons stated herein, the court finds the complaint as
first amended and appropriately supplemented is subject to being
summarily dismissed unless plaintiff files a proper First Amended
Complaint in compliance with court rules to sufficiently address
deficiencies identified by the court.
13

The failure to do so in a proper

and timely manner may result in the original complaint being dismissed
as stating no claim for relief without further prior notice. 5

28

U.S.C. ' 1915A; 28 U.S.C. ' 1915(e)(2)(B).
IT IS THEREFORE ORDERED that plaintiff=s motion for leave to
proceed in forma pauperis (Doc. 2) is granted pursuant to 28 U.S.C.
' 1915(b)(4), and that payment of the $350.00 district court filing
fee is to proceed as authorized by 28 U.S.C. ' 1915(b)(2).
IT IS FURTHER ORDERED that plaintiff is granted 30 days from the
date of this order to file a First Amended Complaint that complies
with court rules and sufficiently addresses identified deficiencies
to avoid summary dismissal of complaint as stating no claim for relief.
IT IS FURTHER ORDERED that plaintiff=s motions for a preliminary
injunction (Docs. 4 and 34) and motion for appointment of counsel (Doc.
7) are denied.
Copies of this order shall be mailed to plaintiff and to the
Centralized Inmate Banking office for the Kansas Department of
Corrections.

The clerk’s office is to provide plaintiff with a court

approved form for filing under 42 U.S.C. § 1983.
IT IS SO ORDERED.
DATED:

This 23rd day of August 2012 at Topeka, Kansas.

s/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
5

Plaintiff is advised that dismissal of the complaint as stating
no claim for relief will count as a Astrike@ under 28 U.S.C. 1915(g)
The court further notes that it appears plaintiff’s litigation history
in the District of Kansas already contains two “strikes.” See Conley
v. McFarland, Case No. 02-3405-GTV)(complaint dismissed as
frivolous); Conley v. Nunnelley, Case No. 98-3438-GTV(complaint
dismissed as stating no claim for relief).
14