Clark v. Roberts et al

Filing 3

ORDER ENTERED: Plaintiff's motion 2 for leave to proceed in forma pauperis is denied as moot. Plaintiff is granted twenty (20) days to show cause why the complaint should not be summarily dismissed. Signed by Senior District Judge Sam A. Crow on 6/13/2012. (Mailed to pro se party Ulysses Clark by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ULYSSES CLARK,
Plaintiff,
v.

CASE NO.11-3218-SAC

RAY ROBERTS, et al.,
Defendants.

O R D E R
Before the court is a 35 page civil complaint seeking relief
under 42 U.S.C. § 1983, filed pro se by a prisoner incarcerated in
a Kansas correctional facility.1
Background and Claims
Plaintiff states that he has diabetes, and that he is an
“incomplete quadriplegic” with limited motion after a 1993 back
injury.

In his complaint plaintiff alleges jail and prison staff

have acted with deliberate indifference to his medical needs, and
details specific allegations related to claims of inadequate medical
care and assistance during plaintiff’s confinement in the Geary
County jail, the Kansas Department of Corrections (KDOC) Reception
and Diagnostic Unit (RDU) at the El Dorado Correctional Facility
(EDCF), and the Norton Correctional Facility (NCF). Plaintiff names
as defendants some 38 individuals spanning those various facilities,

1

Plaintiff subsequently submitted the full $350.00 district
court filing fee in this matter. Accordingly, plaintiff’s pending
motion for leave to proceed in forma pauperis under 28 U.S.C. §
1915, submitted without the certified financial records required by
§ 1915(a)(2), is moot.

and the State of Kansas.
Claim I - Geary County Defendants2
Plaintiff’s first claim concerns his confinement in the Geary
County Jail from June 26 to December 14 in 2009 during which he was
held in a suicide cell and his calls for medical attention were
ignore.

Plaintiff claims the cell was not handicap accessible,

there was inadequate attention to his bowel and catheter needs, bed
sores beyond his reach were left untreated, the lack of handicap
shower caused him to repeatedly fall, medical care was provided only
by

a

physician

substitution

of

assistant

rather

prescribed

than

a

medications

doctor,

the

jail’s

caused

significant

fluctuation in plaintiff’s blood sugar, and this long term isolation
caused him emotional pain and psychological damage.
Claim II - KDOC-EDCF/RDU Defendants
While confined in the RDU at EDCF from December 14, 2009, to
April 19, 2010, plaintiff claims no care was provided for his
paralysis, diabetes, and cancer (which plaintiff cites for the first

2

The court reads the complaint as naming the following
defendants regarding plaintiff’s confinement in the Geary County
Jail:
Lt. Wilbur
Deputy Supervisory Guard Ballard
Corporal Guard Arouni
Deputy Guard Florberg
Deputy Guard Hillenbrant
three “Jane Doe” guards
Advance Medical (as providing contracted medical services)
Advance Medical Nurse or PA Jennifer
Advance Medical Nurse Taylor
Advance Medical Doctor “John Doe”
two “Jane Doe” Advance Medical Nurses or PAs
2

He claims he received no palliative care or therapy,3 and

time).
was

not

provided

adequate

pain

preparations, and ostomy supplies.

management,

wound

and

skin

He further claims he was denied

a commode chair, wheelchair cushions, and a specialized mattress.
Claim III - CCS-EDCF/RDU Defendants
As a separate claim, plaintiff sets forth specific allegations
against CCS defendants during his four month confinement in RDU,
including inattention to his bed sores, failing to provide adequate
enemas or care to plaintiff’s catheter and bowel needs, failing to
provide massages or medications to control muscle spasms, and not
providing

water

during

the

night

or

an

electric

toothbrush.

Plaintiff also claims these defendants failed to transfer him to a
state correctional facility for better medical care, and claims they
placed him in general population without a call button and without
proper medication to prevent excessive sweating.
Claim IV - KDOC-NCF Defendants4
From April 19, 2010, to the date he filed his complaint,
plaintiff

was

confined

in

NCF

but

for

two

days

when

he

was

3

Plaintiff cites not receiving radiation therapy, physical
therapy, occupational therapy, chemotherapy, and respiratory
therapy. He also claims care from a psychiatric nurse or social
worker was not provided.
4

The court reads the complaint as naming the following NCF
defendants:
Health Administrator Tien
Dr. Villanueva
Nurse Smothers
Nurse Delimont
Director of Nursing Chishum
Nurse Rutherford
Warden Shelton
Unit Team Manager Petrie
3

transferred to the Geary County jail for a court appearance.
Plaintiff claims his transfer to NCF, a facility not equipped
to meet his medical needs, was in retaliation for his grievances
against CCS staff at EDCF.

Plaintiff states a proper shower chair

was not provided, subjecting him to falls with the risk of infection
and inmate abuse.

Plaintiff states he received no assistance in

personal care or with bowel and catheter problems. A companion aide
was assigned, but that aide did not address plaintiff’s handicap
needs, and would not “spot” weights for plaintiff. Plaintiff states
he was forced to wear diapers when the facility ran out of catheters
in June or July 2011, and necessary catheter supplies were not
available on November 27, 2011.

Plaintiff was directed to walk

daily, but was subjected to inmate abuse when his falls were not
attended to promptly.
Relief Sought
On these claims plaintiff seeks damages from all defendants,
his transfer to the Larned State Mental Health Correctional Facility
as the only Kansas facility able to handle his medical and emotional
problems,

and

to

be

provided

specific

medical

equipment

and

specialized treatment.
Screening of the Complaint
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.
See 28 U.S.C. § 1915A(a) and (b).

See Plunk v. Givens, 234 F.3d

1128, 1129 (10th Cir.2000)(§ 1915A applies to all prison litigants,
without regard to their fee status, who bring civil suits against a
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governmental entity, officer, or employee).
A

pro

se

party’s

complaint

must

be

given

a

liberal

construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). However,
a party proceeding pro se has “the burden of alleging sufficient
facts on which a recognized legal claim could be based.”

Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).
To state a claim for relief, the complaint must present
allegations of fact, assumed to be true, that “raise a right to
relief above the speculative level.”
Twombly, 550 U.S. 544, 555 (2007).

Bell Atlantic Corp. v.
The complaint must present

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

Id. at 570.
allegations

At this stage, the court accepts all wellas

true

favorable to the plaintiff.

and

views

them

in

the

light

most

Id. at 555.

Having carefully reviewed the materials submitted by plaintiff,
the court finds the complaint is subject to being dismissed for the
following reasons.
Statute of Limitations
The court first finds plaintiff’s first claim against Geary
County defendants is subject to being summarily dismissed as time
barred.
A two-year statute of limitations applies to civil rights
actions brought pursuant to 42 U.S.C. § 1983.

Baker v. Board of

Regents of State of Kan., 991 F.2d 628, 630-31 (10th Cir. 1993).
Here, plaintiff’s allegations against the Geary county defendants
involve events occurring outside the two year limitation period, but
for any event that might have occurred on the day of plaintiff’s
transfer

from

that

county

facility.
5

Accordingly,

absent

a

cognizable allegation of constitutional error on that single day,
plaintiff’s claims against the Geary County defendants state no
claim for relief because they are time barred.
Personal Participation
Plaintiff’s second, third, and fourth claims are subject to
being

dismissed

because

the

complaint

fails

to

set

forth

a

sufficient factual or legal basis for plausibly establishing any
particular named defendant’s personal participation in the alleged
violation of plaintiff’s rights.
Personal participation is an essential allegation in a § 1983
action.

Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir.1976).

Plaintiff may not rely on the doctrine of respondeat superior to
hold a defendant liable by virtue of the defendant's supervisory
position, or a broad claim that defendants “condoned, ignored, or
turned a blind eye to” the violation of plaintiff’s rights.
v. Goode, 423 U.S. 362 (1976).

Rizzo

See also Dodds v. Richardson, 614

F.3d 1185, 1194-95 (10th Cir.2010)(questioning viability of § 1983
supervisory

liability

after

Ashcroft

v.

Iqbal,

556

U.S.

662

(2009)).
Also, to the extent plaintiff seeks damages from municipal or
corporate defendants, such as Geary County or CCS, these claims are
subject to being summarily dismissed because plaintiff fails to
allege any factual basis for plausibly finding that an official
policy or custom of the municipality or corporation directly caused
the violation of plaintiff’s constitutional rights.
Dept.

of

Social

Services,

436

U.S.

658

See Monell v.

(1978)(setting

forth

requirements for municipal liability as a “person” subject to suit
under § 1983); Dubbs v. Head Start, Inc., 336 F.3d 1194 (10th
6

Cir.2003)(extending Monell to private defendants sued under § 1983).
Conclusory Allegations
Plaintiff also fails to identify any specific factual support
for his bare claims of conspiracy and civil rights violations. Such
conclusory allegations are insufficient to state a claim for relief.
See

Hall

v.

Bellmon,

935

F.2d

1106,

1110

(10th

Cir.

1991)

("conclusory allegations without supporting factual averments are
insufficient to state a claim on which relief can be based”).
Eleventh Amendment Immunity
To the extent plaintiff names the State of Kansas as a party
defendant, any such claim should be dismissed because the Eleventh
Amendment doctrine of sovereign immunity bars private individuals
from suing nonconsenting states in federal court.
454 F.3d 1154, 1157 (10th Cir.2006).

Opala v. Watt,

See Saunders ex rel. Rayl v.

Kansas Dept. of Social & Rehabilitation Services, 317 F.Supp.2d
1233, 1241 (D.Kan.2004)(State of Kansas has not waived sovereign
immunity from suits under 42 U.S.C. § 1983).
Joinder Principles
Finally, to the extent plaintiff can avoid summary dismissal of
his claims for the reasons stated above, joinder concerns are
implicated by plaintiff naming a wide range of defendants in at
least three different facilities.
The Federal Rules of Civil Procedure allow joinder of claims
and defendants “arising out of the same transaction, occurrence, or
series of transactions or occurrences” that involve questions of law

7

or fact common to all defendants.5

Plaintiff’s combining of all

allegations at the different facilities into one complaint involves
the type of joinder of claims and defendants that is discouraged
under the Federal Rules of Civil Procedure and the Prison Litigation
Reform Act.
Accordingly, notwithstanding plaintiff’s repeated underlying
allegations of being denied necessary medical care, severance of the
complaint into separate actions to comply with joinder principles
will be necessary on any claims that are not summarily dismissed for
the reasons stated above, and that involve defendants at different
institutions.
Notice and Show Cause Order to Plaintiff
For

the

reasons

stated

herein,

the

court

concludes

the

complaint is subject to being summarily dismissed as stating no
claim for relief.

The court thus directs plaintiff to show cause

why the all claims and defendants should not be summarily dismissed
for the reasons stated by the court.

The failure to file a timely

response may result in dismissal of the complaint without further
prior notice.
IT IS THEREFORE ORDERED that plaintiff’s motion for leave to
proceed in forma pauperis (Doc. 2) is denied as moot.
IT IS FURTHER ORDERED that plaintiff is granted twenty (20)

5

Fed.R.Civ.P. 18 allows a plaintiff to join “either as
independent or as alternate claims, as many claims, legal,
equitable, or maritime, as the party has against an opposing party.”
Fed.R.Civ.P. 20 allows the joinder of several parties if the
claims arose out of a single transaction and contain a question of
fact or law common to all the defendants.
8

days to show cause why the complaint should not be summarily
dismissed for the reasons stated by the court.
IT IS SO ORDERED.
DATED:

This 12th day of June 2012 at Topeka, Kansas.

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

9