Trammell (ID 55831) v. Denning et al
MEMORANDUM AND ORDER granting 5 Defendants' Motion to Dismiss; granting 5 Defendants' Motion to Dismiss; granting 7 Defendants' Motion to Dismiss.All claims except the challenge to the medical policy are hereby dismissed with pr ejudice. IT IS FURTHER ORDERED that Plaintiff shall have up to and including November 26, 2012 to show cause in writing why the deficiencies identified by the Court why the remaining claim challenging his medical treatment should not be dismissed fo r failure to state a claim. Failure to show cause by this date may result in dismissal of this action with prejudice and without further notice. Signed by District Judge Julie A. Robinson on 10/31/2012.Mailed to pro se party David Travvell, #55831, Hutchinson Correctional Facility, PO Box 1568, Hutchinson, KS 67504 by regular mail (pp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DAVID WALTER TRAMMELL,
CASE NO. 12-3152-JAR
FRANK DENNING, et al.,
MEMORANDUM AND ORDER
This matter is a civil rights complaint filed pursuant to 42
U.S.C. § 1983 by a prisoner in state custody. Plaintiff proceeds pro
se and submitted the full filing fee. Defendants have filed two motions
to dismiss the Complaint (Docs. 5, 7).
A federal court must conduct a preliminary screening of a civil
action in which a prisoner seeks relief from a governmental officer
or entity and must dismiss the complaint or any part of it that is
frivolous, malicious, or fails to state a claim for relief.1
A party proceeding pro se is entitled to a liberal construction
of his pleadings.2 However, a pro se party must “follow the same rules
of procedure that govern other litigants.”3
Plaintiff’s complaint reflects that he fell and sustained
28 U.S.C. § 1915A(a)-(b).
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520
Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994)(citing Green v. Dorrell,
969 F.2d 915, 917 (10th Cir. 1992)).
injuries on April 23, 2010, inside the New Century Adult Detention
Center in Johnson County, Kansas. He claims that officers responsible
for the facility ignored a pervasive risk of harm caused by standing
water in the recreation area where he fell, and he complains that he
did not receive appropriate medical attention in April, May, and June
2010, for his injuries and complaints of pain. Finally, he complains
that he suffered unnecessarily due to a policy of Correct Care Services
classifying inguinal hernia repair as an elective surgical procedure.
The limitation period
The statute of limitations for a complaint brought under § 1983
“is drawn from the personal-injury statute of the state in which the
federal district court sits.” 4 In Kansas, the two-year statute of
limitations period in K.S.A. § 60-503(a)(4) for “injury to the rights
of another” applies.5
Although state law governs the statute of limitations, federal
law determines when the federal claim accrues. 6 “A § 1983 action
accrues when facts that would support a cause of action are or should
Here, plaintiff’s injury occurred in April 2010, and his
complaint describes requests for medical care immediately afterward
and during the following months of May and June 2010.
complaint is deemed filed when it is delivered to prison officials
Mondragon v. Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008).
Garcia v. Univ. of Kan., 702 F.2d 849, 851 (10th Cir. 1983).
See Baker v. Bd. of Regents, 991 F.2d 628, 632 (10th Cir. 1993).
Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir.)(internal citation omitted), cert.
denied, 549 U.S. 1059 (2006).
for mailing. 8 Plaintiff executed the complaint on June 27, 2012. 9
Thus, any claim that arose more than two years prior to that date is
time-barred unless the limitations period was tolled.
Under Kansas common law, plaintiff is entitled to tolling of the
limitation period during the time required to exhaust administrative
The complaint states that plaintiff completed his grievances on
July 10, 2010. 11 The grievance in question arose from the medical
decision to treat plaintiff with a hernia truss, which was provided
to him in early June 2010, rather than the surgery he desires. The
complaint describes plaintiff’s pursuit of relief from that decision
through the administrative remedy process, ending with a denial of
relief on July 10, 2010.12 Accepting these facts as true, the court
finds, for purposes of this screening, that the limitation period was
tolled until July 10, 2010, for the plaintiff’s claim concerning the
The medical claim
Plaintiff challenges the decision to treat his hernia with an
external support rather than by surgical repair. Prison authorities
“violate the Eighth Amendment’s ban on cruel and unusual punishment
if their ‘deliberate indifference to serious medical needs of
prisoners constitutes the unnecessary and wanton infliction of
See Houston v. Lack, 487 U.S. 266, 270—71 (1988).
Complaint, Doc. 1, at 6.
See Bloom v. McPherson, 346 F. App’x 368, 371 (10th Cir. 2009).
See Complaint, Doc. 1, at 31.
requires a showing that the medical need 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.” 15 The subjective component requires a
showing that the defendant prison official “knows of and disregards
an excessive risk to inmate health or safety.”16
It is settled that a prison physician is “free to exercise his
or her independent professional judgment, and an inmate is not
entitled to any particular course of treatment.” 17 This standard
requires a prisoner to establish a “deliberate refusal to provide
medical attention, as opposed to a particular course of treatment.”18
Here, the plaintiff acknowledges that he was seen by a physician
and diagnosed with a non-strangulated hernia. While the plaintiff
states the physician said he needed corrective surgery, the physician
did not prescribe that procedure. Rather, plaintiff was provided with
a hernia truss in early June 2010, as directed by the physician, and
the responses to his grievances uniformly reflected that no other
treatment had been ordered.19
The facts stated by plaintiff do not state a claim for relief
under the Eighth Amendment. Not only did plaintiff receive the medical
Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006) (quoting Estelle v. Gamble,
429 U.S. 97, 104 (1976)).
See Farmer v. Brennan, 511 U.S. 825, 834 (1994).
Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000).
Farmer, 511 U.S. at 837.
Callahan v. Poppell, 471 F.3d 1155, 1160 (10th Cir. 2006) (quoting Snipes v.
DeTella, 95 F.3d 586, 591 (7th Cir. 1996)).
Fleming v. Uphoff, 210 F.3d 389 (table), 2000 WL 374295, at *2 (10th Cir. Apr.
12, 2000) (citation omitted).
Complaint, Doc. 1, at 30-31.
treatment ordered by the physician, it appears this treatment is
recognized as an appropriate practice.20 Likewise, there is no factual
basis to suggest that the policy classifying surgical repair of a
non-strangulated inguinal hernia as an elective procedure meets the
subjective standard for a claim under the Eighth Amendment.
“[A] pro se litigant . . . is entitled to notice and an opportunity
to amend the complaint to overcome any deficiency unless it is clear
that no amendment can cure the defect.”21
if amendment would be futile.22
Leave need not be granted
The Court finds that amendment in this
case would be futile on the claims barred by the statute of
But the Court will allow Plaintiff an additional period
of time to cure the deficiency on his challenge to the medical
treatment prescribed for his non-strangulated hernia.
Accordingly, the court finds that dismissal of this matter is
appropriate on the grounds that all claims except the challenge to
the medical policy are time-barred and that the medical policy claim
fails to state a claim for relief.
The Court will allow Plaintiff
an opportunity to amend this remaining claim for relief.
IT IS THEREFORE ORDERED BY THE COURT that Defendants’ motions
to dismiss (Docs. 5, 7) are granted.
All claims except the challenge
to the medical policy are hereby dismissed with prejudice.
IT IS FURTHER ORDERED that Plaintiff shall have up to and
See, e.g., Jackson v. Jackson, 456 F. App’x 813, 814—15 (11th Cir. 2012) (citing
the “common medical practice to postpone surgery until a hernia becomes
strangulated”); Winslow v. Prison Health Servs., 406 F. App’x 671, 674—75 (3d Cir.
2011)(citing evidence in the record that “the standard treatment for an inguinal
hernia was non-surgical”); Clark v. Adams, 233 F. App’x 400, 401 (5th Cir. 2007)
(per curiam) (affirming the summary dismissal of prisoner’s complaint as frivolous
where he complained prison physician failed to refer him for surgery and instead
provided a truss and medication).
Denton v. Hernandez, 504 U.S. 25, 34 (1992).
See Gee v. Pacheco, 627 F.3d 1178, 1194 (10th Cir. 2010).
including November 26, 2012 to show cause in writing why the
challenging his medical treatment should not be dismissed for failure
to state a claim.
Failure show cause by this date may result in
dismissal of this action with prejudice and without further notice.
IT IS SO ORDERED.
Dated: October 31, 2012
s/ Julie A. Robinson
United States District Judge
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