Alexander v. Egli et al

Filing 11

MEMORANDUM AND ORDER ENTERED: This action is dismissed without prejudice for failure to state a cognizable claim for relief against defendants. Plaintiff's motion 9 for issuance of summons and complaint is denied as moot. Plaintiff's motion 4 for leave to proceed without prepayment of fees is granted. Signed by Senior District Judge Sam A. Crow on 12/09/14. Mailed to pro se party Willie M. Alexander by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
WILLIE M. ALEXANDER,
Plaintiff,
v.

CASE NO.

12-3101-SAC

RON EGLI, et al.,
Defendants.
MEMORANDUM AND ORDER
This pro se civil complaint was filed pursuant to 42 U.S.C. §
1983 by a federal prisoner while he was confined at the United States
Penitentiary,

Terre

Haute,

Indiana

(USPT).

1

Mr.

Alexander

complained that in March 2010 during earlier confinement at the
Leavenworth Detention Center, Leavenworth, Kansas (LDC) he was
denied proper medical treatment for chest pains and other heart
attack symptoms.

The LDC is a private prison facility operated by

the Corrections Corporation of America (CCA).

Upon screening the

complaint, the court found it “subject to being summarily dismissed”
for two main reasons: (1) failure to state a claim for relief under
§ 1983 because none of the LDC-CCA employees alleged to have denied
treatment acted “under color of state law,” and (2) the complaint
appeared to be time barred.

Plaintiff was ordered to show cause why

1

Mr. Alexander notified the court of his changes of address in December 2013
to Medical Center for Federal Prisoners, Springfield, Missouri, and in November
2014 back to USPT.

1

this action should not be dismissed.2

This matter is before the court

upon “Plaintiff’s Reply to this Court’s Order to Show Cause” (Doc.
3) and plaintiff’s Motion for Issuance of Summons (Doc. 9).

Having

examined all materials in the file, the court finds that plaintiff
has failed to show good cause why the complaint should not be
dismissed.

Accordingly, this action is dismissed pursuant to 28

U.S.C. § 1915A(b) for the reasons stated in the court’s prior Order
and herein, including failure to state a claim.

ATTEMPT TO AMEND AND SUPPLEMENT
Plaintiff’s response is entitled “Plaintiff’s Reply to this
Court’s Order to Show Cause” (Doc. 3)(hereinafter “Reply”).

In a

single sentence within this Reply, plaintiff “moves this Court to
allow him to amend the action before the court.”

The Federal Rules

of Civil Procedure require that motions set out “with particularity”
the grounds for the motion.

Fed.R.Civ.P. 7(b)(1).

Furthermore, “a

request for leave to amend must give adequate notice to the district
court . . . of the basis of the proposed amendment” before the court
is required to recognize the motion.

Calderon v. Kansas Dept. of

Social & Rehab. Svcs., 181 F.3d 1180, 1186-87 (10th Cir. 1999).

Even

though pro se pleadings are held to less stringent standards than
pleadings drafted by lawyers, pro se litigants must follow the same

2

Plaintiff was also given time to pay an initial partial filing fee, and he
complied.

2

procedural rules as other litigants.

Hughes v. Rowe, 449 U.S. 5,

9 (1980); see Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.
3 (10th Cir. 2002).

Plaintiff’s Reply is not even captioned as a

motion and is certainly not a conventional Motion to Amend.

Nor did

plaintiff submit a complete Amended Complaint 3 with his imbedded
request.
Nonetheless, plaintiff proceeds in his 12-page Reply as if it
is not only his response to the show cause order but an amendment
to his complaint as well.

He repeats allegations from his original

complaint and presents new allegations.

He reargues his Eighth

Amendment claims and presents new arguments.

He even refers to a

new defendant and attempts to add allegations concerning events that
occurred later than those in the original complaint.
Amended

Complaint

completely

supersedes

the

Generally, an

prior

complaint.

Plaintiff’s Reply is not itself a complete amended complaint.

It

does not contain a caption with all the prior defendants and the new
defendant named therein.

It fails to provide additional information

for the old and new defendants to facilitate service and lacks other
information

that

is

required

in

the

court’s

form

complaint.

Consequently, it would be difficult to treat plaintiff’s Reply,
standing alone, as his Amended Complaint.
On the other hand, prior to service, a plaintiff may amend his

3

Mr. Alexander is no stranger to this and other courts. Local court rules
require that civil rights complaints be submitted upon court-approved forms.

3

complaint as a matter of course pursuant to Rule 15 of the Federal
Rules of Civil Procedure.

The court has resolved this matter by

fully considering the original complaint together with plaintiff’s
Reply and attached exhibits, and allowing these two filings together
to serve as plaintiff’s Amended Complaint.

As a result, the court

has also fully considered all the additional allegations and claims
made by plaintiff in his Reply that are his attempt to cure the
deficiencies in his original complaint.
To the extent that plaintiff attempts in his Reply to raise new
claims based upon events that allegedly occurred after the filing
of the original complaint, the proper method was to file a motion
to supplement.

Fed.R.Civ.P. 15(d)(events occurring since date of

complaint are proper for inclusion in a supplemental pleading).
Nevertheless, the court has fully considered these supplemental
allegations and claims.

ALLEGATIONS AND CLAIMS
In his original § 1983 complaint, Mr. Alexander named the
following defendants:

Ron Egli, Physician Assistant (PA), LDC-CCA;

Dr. Stewart Grote, LDC-CCA; Warden, LDC-CCA; and United States
Department of Justice.

He claimed that his Eighth Amendment right

to be free from cruel and unusual punishment was violated because
defendants failed to provide him with proper medical treatment.

In

his Reply, plaintiff adds some allegations as to his treatment at
4

the LDC-CCA.

The court finds from plaintiff’s original complaint

together with his Reply, that Mr. Alexander has alleged the following
to support his claim.

On March 19, 2010, at the LDC-CCA, Mr.

Alexander was taken to the medical department “via emergency for
complaints of severe chest pains, uncontrollable coughing,” vomiting
and nausea.

He was seen by defendant PA Elgi who diagnosed him with

a “bad case of heartburn” and prescribed medication for that ailment.
Defendant

Elgi

failed

to

check

plaintiff’s

“proper

vital

statistics,” and generally failed to follow proper protocol for a
patient with severe chest pain.

Plaintiff was returned to his cell.

If Elgi had followed proper protocol, he would have discovered that
plaintiff “was suffering an acute heart attack.”4

On March 23, 2010,

at 8:15 a.m., plaintiff again suffered severe chest pains and
shortness of breath and went to medical.

He was given a breathing

treatment and returned to his cell per Egli’s orders.

At 10:30 a.m.,

he was rushed to the medical unit with uncontrollable coughing,
“decreased wind peak flow,” vomiting, and diarrhea.

Egli checked

his wind peak flow, diagnosed him with bronchitis, and he returned
to his cell.

On March 24, 2010 at 4:30 p.m., plaintiff returned to

the medical department “via emergency” with the “same complaints”.
He was also experiencing shooting pains in his left arm and jaw area.5
4

Mr. Alexander exhibits pages of pertinent medical records but does not
provide a medical record for this March 19, 2010 medical encounter.
5

Plaintiff does exhibit LDC medical records for March 23 and 24, 2010, which
recorded his symptoms during these clinical encounters as “coughing and decreased

5

He “was seen by Amanda Whistance (LPN), who took the plaintiff’s vital
signs

and

then

called

defendant

Stewart

Grote

for

orders.”

Plaintiff was given breathing treatments and kept overnight for
observation.

He was seen by LPN Ashley the following morning and

informed Ashley “that at the present time he was filling (sic) much
better.”

That day, he was also seen by Dr. Grote.

Dr. Grote informed

plaintiff that he would order an x-ray and asked plaintiff “for
permission to the (USMS) to have a gallbladder ultrasound done.”
Instead of following through with the x-ray and ultrasound, Dr. Grote
and defendant Egli cleared plaintiff for transfer to the Oklahoma
Federal Transfer Center (OFTC).

Defendant Grote failed to “forward

the proper medical documentation” or inform medical staff at the OFTC
of plaintiff’s serious medical issues.

The United States Marshals

Service (USMS) transported plaintiff “without properly ascertaining
the facts” regarding plaintiff’s medical condition.
Plaintiff claims that he suffered for several days with symptoms
and eventually had a heart attack.

He also claims that “because of”

Elgi’s action, he suffered severe heart damage and required a
pacemaker.

He asserts that Dr. Grote should have cancelled the

transfer and determined the cause of plaintiff’s chest pains by
having the x-ray and ultrasound completed or performing an EKG.

He

complains that Dr. Grote instead did nothing to insure that

wpf”, vomiting and diarrhea, nausea, and “unable to breathe.” No mention is made
of an acute heart attack or even that plaintiff complained of chest, arm, or jaw
pain.

6

plaintiff’s serious medical needs would be handled properly before
his transfer or at the next institution, and that as a result
plaintiff suffered irreversible damage to his heart.

He further

claims that the BOP was “never notified properly” of his medical
condition.

Plaintiff holds the CCA Warden responsible for the

actions of his medical staff.

He seeks compensatory, punitive, and

actual damages for personal injury and mental, emotional damage.
In

his

Reply,

plaintiff

adds

the

following

allegations

regarding events that occurred after his transfer out of the LDC-CCA
and during his brief stay at the OFTC.
March 25, 2010.

He arrived at the OFTC on

While at the OFTC “[t]he Defendant in Oklahoma

Richard Hutchinson like the other two Defendant’s (sic)”6 failed to
order more tests, and improperly diagnosed his symptoms on March 28,
2010, as asthma rather than congestive heart failure.

On April 1,

2010, he was transferred from the OFTC to the United States
Penitentiary-McCreary in Pine Knot, Kentucky (USPM).
Plaintiff further adds in his Reply the following allegations
concerning events after he arrived at the USPM.
he was no longer experiencing symptoms.

Once he arrived,

Then on April 26, 2010, he

went to sick-call complaining of abdominal pain persisting for four

6

Plaintiff concludes that for “all the reasons stated above” he has shown
cause why “the court should not dismiss this suit against the Defendant Richard
Hutchinson.” Defendant Hutchinson was not listed as a defendant in the caption
of either the original complaint or the Reply, and was not mentioned in the body
of the original complaint.
The court has herein considered Hutchinson as a
possible defendant due to plaintiff’s Reply, which in part has been treated as
an amendment to his complaint.

7

days.

On May 3, he returned to sick-call complaining of a dry,

hacking cough persisting for a week, and explained all his prior
symptoms and treatments to “Bennett-Baker, K. (FNP/ACNP).”7
was done that day.
done today.

An EKG

Bennett-Baker’s recorded comments included “CXR

Left ventrical hypertrophy with brochial cuffing.

Cardiomegally.”

Bennett-Baker found, among other things, that

plaintiff was “desaturated with exertion,” “dyspneic with exertion,”
had “new onset of pitting edema in bilateral lower extremities,”
diminished

breath

sounds,

and

reported

“experiencing

chest

pressure/tightness ‘off and on’ for several days approximately 6-8
weeks ago.”

Bennett-Baker assessed plaintiff with presumptive

“congestive heart failure, unspecified”
emergent cardiology evaluation.”

and commented:

“needs

That day she sent plaintiff to the

local hospital to be examined by a cardiologist.

Doc. 3-1 at 14.

Plaintiff’s Exhibit G indicates that on May 6, 2010, Bennett-Baker
talked with Cardiologist Dr. Iqbal and was informed of Iqbal’s
diagnosis of “Cardiomyopathy”8 and prognosis that “if no improvement
with medication, he will need to have an implanted defibrillator.”
Id. at 21.

Plaintiff was given medications for cardiomyopathy and

7

Plaintiff’s exhibited BOP “Clinical Encounter” dated May 3, 2010 (Doc. 3-1
at pg. 14) shows that he informed Bennett-Baker at the USPM: “I also noticed last
night that my legs are really swollen up,” that he had to stop 2-3 times to rest
while walking to chow, he “had experienced midsternal pressure/tightness while
in the county jail”, he had a hacking cough but no cold, antacids and laxatives
had not helped, his “trouble getting (his) air . . . just gets worse”, he had gained
8 pounds since his arrival at the USPM, and he was “choking out” when lying down
at night to sleep.
8

Cardiomyopathy is generally described as a chronic disease of the heart
muscle (myocardium).

8

blood tests.

Id.

He was discharged from the hospital on May 6,

2010, with instructions for “medical management with ace inhibitor,
beta blocker, and antiarrhythmic X 3 months, then needs to return
for outpatient echocardiogram.”

Plaintiff exhibits additional

medical records from Springfield dated November 10, 2010, in which
Dr. Hare records: “ICD placed yesterday, no problems with procedure.”
Id. at 2.
Plaintiff concludes that his complaint should not be dismissed.
He includes a “Relief Requested” segment, in which he again seeks
an array of damages.

PLAINTIFF’S RESPONSE TO SHOW CAUSE ORDER
As noted, in plaintiff’s Reply he repeats allegations and
arguments from his original complaint and presents new ones, which
the court has considered.

In addition, he suggests that the court’s

prior screening order required him to “demonstrate that his medical
need (was) objectively sufficiently serious.”

He thus re-alleges

that the delay “from March 19, 2010” and defendants’ failure to
properly examine, diagnose, and treat him resulted in “greater,
substantial heart damage” and adds that it resulted in his “losing
48% of his heart ejection fraction.”

He then discusses cases in

which a defendant medical provider knew about and disregarded a
substantial risk to the plaintiff’s health.

He also compares

defendant Egli’s actions to a defendant in Mata v. Saiz, 427 F.3d
9

745 (10th Cir. 2005), who “neither administered first aid nor summoned
medical

assistance,”

failed

to

contact

“qualified

medical

personnel,” and responded that she could do nothing since “the
infirmary was closed,” and the inmate’s “sole recourse was to return
to sick call the next morning.”

Plaintiff then refers to the

“reasons stated above” as showing “cause why this court should not
dismiss” his lawsuit against defendants Egli and Grote.

DISCUSSION
In its prior screening order, the court found that the complaint
stated no claim for relief under § 1983 because the CCA employees
named as defendants did not act “under color of state law.”

The court

further found that even if the complaint were liberally construed
as seeking relief under Bivens, it still failed.

For the latter

finding, the court cited Minneci v. Pollard, ___ U.S. ___, 132 S.Ct.
617, 626 (2012).

In Minneci, the United States Supreme Court

expressly held:
[W]here, as here, a federal prisoner seeks damages from
privately employed personnel working at a privately
operated federal prison, where the conduct allegedly
amounts to a violation of the Eighth Amendment, and where
that conduct is of a kind that typically falls within the
scope of traditional state tort law (such as the conduct
involving improper medical care at issue here), the
prisoner must seek a remedy under state tort law.”).
Id.

The primary reason for dismissing plaintiff’s claims against

defendants Egli, Grote, and Warden is that plaintiff has no cause

10

of action in federal court against these individuals who acted only
as employees of a private corporation.

None was a state actor or

a federal official.
The

court

did

not

suggest

in

its

screening

order

plaintiff’s medical needs were not sufficiently serious.

that

Nor did

it discuss any other element of his Eighth Amendment claim.

The

additions to the complaint that plaintiff makes in his Reply do not
address,

and

therefore

do

not

cure,

his

failure

to

state

a

cognizable claim in federal court against the LDC-CCA employees.
His repeated assertions that his claim is meritorious and his
references to Mata are likewise irrelevant arguments.
The complaint fails to state a claim against defendant Warden.
This claim is expressly based on nothing more than the Warden’s
supervisory capacity.

It is settled that a supervisor’s liability

may not be predicated solely upon a theory of respondeat superior.
Rizzo v. Goode, 423 U.S. 362, 371 (1976); Gagan v. Norton, 35 F.3d
1473, 1476 FN4 (10th Cir. 1994), cert. denied, 513 U.S. 1183 (1995);
see

Gallagher

v.

Shelton,

587

F.3d

1063,

1069

(10th

Cir.

2009)(“Supervisory status alone does not create § 1983 liability.”).
Instead, an essential element of a civil rights claim against an
individual is that person’s direct personal participation in the acts
or inactions upon which the complaint is based.

Trujillo v.

Williams, 465 F.3d 1210, 1227 (10th Cir. 2006)(A defendant’s direct
personal

responsibility

for

the
11

claimed

deprivation

of

a

constitutional right must be established).

Plaintiff has alleged

no facts whatsoever showing the direct personal participation of
defendant Warden in the improper diagnosis or treatment of his
medical conditions.
The complaint states no claim against the “United States
Department of Justice.”

Plaintiff may have named this federal

agency as a defendant based upon his bald allegations regarding the
USMS.

However, he alleges no facts regarding involvement in his

medical care on the part of the Department of Justice.

In any event,

the complaint states no claim against this defendant because federal
agencies are absolutely immune to suit for money damages.9
Plaintiff attempts to add Richard Hutchinson as a defendant in
this case by simply referring to Hutchinson in his Reply and adding
allegations that on March 28, 2010, Hutchinson failed to provide
proper treatment at the OFTC when he diagnosed plaintiff’s symptoms
as asthma and did not order further medical testing.

However, this

federal court is not the proper venue for plaintiff’s lawsuit against
a resident of Oklahoma, and plaintiff suggests no scenario under
which this court would have personal jurisdiction over non-resident
Hutchinson.

See Trierweiler v. Croxton and Trench Holding Corp.,

9

Plaintiff does not mention the Federal Tort Claims Act (FTCA) and has not
named the United States as sole defendant. Nor does he indicate that he has
complied with any other provisions of the FTCA, including the administrative tort
claim process, which is a jurisdictional prerequisite.

12

90 F.3d 1523 (10th Cir. 1996).10
The court concludes that plaintiff has failed to state a viable
claim in this federal court against any of the named defendants.
Accordingly, this action is dismissed for failure to state a claim.

FAILURE TO EXHAUST BOP REMEDIES
It is also clear from the face of the complaint that Mr.
Alexander did not exhaust BOP administrative remedies prior to filing
this action.

He answered “No” to the form question on his complaint

regarding administrative remedies, and stated that he did not exhaust
because

he

was

transferred.

Full

and

proper

exhaustion

of

administrative remedies is required and cannot be ignored by the
court.

See 42 U.S.C. § 1997e(a).11

Plaintiff provides no facts or

authority suggesting that his transfer warrants an exception to this
statutory prerequisite to filing a lawsuit in federal court.
Finally, the court notes that plaintiff’s own allegations and
exhibits plainly show he was provided medical attention each time
he reported to sick-call from March 19, 2010, up to and including
May 6, 2010, when he was diagnosed with congestive heart failure and
10

The court declines to transfer plaintiff’s claim against Hutchinson to the
District of Oklahoma for reasons including that plaintiff’s amendment seeking to
add Hutchinson as a defendant in this case was filed in July 2012, which is more
than two years after Hutchinson’s acts are alleged to have occurred.
11

Section 1997e(a) provides:
No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.

13

immediately treated for this serious condition.

See Smart v.

Villar, 547 F.2d 112, 114 (10th Cir. 1976)(Where the complaint
alleges a “series of sick calls, examinations, diagnoses, and
medication,” it “cannot be said there was a ‘deliberate indifference’
to the prisoner’s complaints.”).
IT IS THEREFORE BY THE COURT ORDERED that this action is
dismissed without prejudice for failure to state a cognizable claim
for relief against the defendants.
IT IS FURTHER ORDERED that plaintiff’s Motion for Issuance of
Summons and Complaint (Doc. 9) is denied as moot.
IT IS FURTHER ORDERED that plaintiff’s Motion for Leave to
Proceed without Prepayment of Fees (Doc. 4) is granted.

Plaintiff

is hereby assessed the remainder of the $350.00 filing fee to be paid
through payments automatically deducted from his inmate trust fund
account as authorized by 28 U.S.C. § 1915(b)(2).

The Finance Office

of the Facility where plaintiff is currently incarcerated is directed
by copy of this Order to collect from plaintiff’s account and pay
to the clerk of the court twenty percent (20%) of the prior month’s
income each time the amount in plaintiff’s account exceeds ten
dollars ($10.00) until plaintiff’s outstanding filing fee obligation
has been paid in full.

Plaintiff is directed to cooperate fully with

his custodian in authorizing disbursements to satisfy the filing fee,
including but not limited to providing any written authorization
required by the custodian or any future custodian to disburse funds
14

from his account.
The clerk is directed to send a copy of this Order to plaintiff,
to the finance officer at the institution in which plaintiff is
currently confined, and to the court’s finance office.
IT IS SO ORDERED.
Dated this 9th day of December, 2014, at Topeka, Kansas.

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

15