Denmark-Wagner (ID 93947) v. Correct Care Solutions, Inc. et al

Filing 5

ORDER ENTERED: Plaintiff's motion 2 for leave to proceed in forma pauperis is granted. Plaintiff is granted twenty (20) days to show cause why the complaint should not be dismissed as stating no claim for relief. Plaintiff's motion 3 for appointment of counsel is denied without prejudice. Signed by Senior District Judge Sam A. Crow on 1/15/2013. (Mailed to pro se party Charles Denmark-Wagner by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CHARLES DENMARK-WAGNER,
Plaintiff,
v.

CASE NO. 12-3169-SAC

CORRECT CARE SOLUTIONS, et al.,
Defendants.

O R D E R
Plaintiff,

a prisoner incarcerated in the Hutchinson

Correctional Facility (HCF) in Kansas, filed a pro se complaint
seeking relief under 42 U.S.C. § 1983.
Motion to Proceed In Forma Pauperis, 28 U.S.C. § 1915
Plaintiff has paid the initial partial filing fee assessed by
the court under 28 U.S.C. 1915(b)(1), and is granted leave to proceed
'
in forma pauperis.

Plaintiff remains obligated to pay the remainder

of the $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).
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. 28
U.S.C. § 1915A(a) and (b).

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 conclusory 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 enough facts to

state a claim to relief that is plausible on its face.
Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Having reviewed the complaint, the court finds it is subject to
being summarily dismissed as stating no claim upon which relief can
be granted under § 1983.

28 U.S.C. § 1915A(b); 28 U.S.C. §

1915(e)(2)(B)(ii).
“To state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the United
States and must show that the alleged deprivation was committed by
a person acting under color of state law.” West v. Atkins, 487 U.S.
42, 48 (1988).
In the present case, plaintiff seeks monetary, injunctive, and
declarative relief on allegations that defendants are violating his
constitutional rights by acting with deliberate indifference to his
serious medical needs.

Plaintiff documents his complaints in 2010

and 2011 of groin pain from a hernia, and that the medical care provided
in response has been ineffective and inadequate. Plaintiff further
states his hernia pain is not being treated in the proscribed manner,
which plaintiff contends is surgery pursuant to his reading of
information

provided by the Mayo Clinic about hernias.

The

defendants named in the complaint are the Secretary of the Kansas

Department of Corrections (KDOC), the HCF Warden, Correct Care
Services (CCS), and nine CCS medical staff at HCF.
Constitutional Standard
A[D]eliberate indifference to medical needs amounts to an Eighth
Amendment violation only if those needs are >serious.= @
McMillian, 503 U.S. 1, 9 (1992).

Hudson v.

To satisfy this constitutional

standard, a prisoner plaintiff must be able to prove that (1)
objectively,

the prisoner’s medical needs were “sufficiently

serious,” and (2) subjectively, the prison official acted with a
“sufficiently culpable state of mind.” Self v. Crum, 439 f.3d 1227,
1230-31 (10th Cir.2006).
A medical need is serious Aif the condition has been diagnosed
by a physician as mandating treatment or ... is so obvious that even
a lay person would easily recognize the necessity for a doctor's
attention.@

Garrett

v.

Stratman,

Cir.2001)(quotation omitted).

254 F.3d 946, 949 (10th

A showing of deliberate indifference

requires that a prison official “knows of and disregards an excessive
risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825,
837 (1994).
Here,

plaintiff states that medical staff has repeatedly

provided Tylenol and a hernia belt truss to address his complaints
of hernia pain, for which.

Although plaintiff insists his pain

continues, states his truss is uncomfortable and ineffective, and
contends surgery is appropriate as a long term solution, this is
insufficient to allege a constitutionally significant claim.
Even if the court were to assume that plaintiff sufficiently
alleged

a serious medical need, plaintiff’s allegations are

insufficient

to plausibly find that any defendant acted with

deliberate

indifference in addressing plaintiff’s medical

complaints.

Instead, plaintiff’s allegations constitute nothing

more than either a claim of negligent medical treatment or a difference
of opinion between him and the prison medical providers as to what
constitutes adequate medical treatment for his condition. It is well
settled, however, that neither negligent treatment nor an inmate's
mere disagreement with the treatment provided states a federal
constitutional violation.

Plaintiff's bald allegation

- that

surgery is the appropriate medical standard and proscribed treatment
-

is insufficient to establish that the treatment being provided is

constitutionally inadequate.
Personal Participation
Nor

does plaintiff identify each defendant’s personal

participation in the alleged deprivation of his constitutional
rights.

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

Cir.1976)(personal participation is an essential allegation in a §
1983 action).

“[F]or liability to arise under § 1983, a defendant's

direct personal responsibility for the claimed deprivation of a
constitutional right must be established.”
F.3d 1210, 1228 (10th Cir.2006).

Trujillo v. Williams, 465

A defendant cannot be held liable

in a civil rights action based solely upon his or her supervisory
capacity.

Sandifer v. Green, 126 Fed.Appx. 908, 909 (10th Cir.2005).

Here, plaintiff alleges only that the KDOC Secretary and the HCF
Warden denied plaintiff’s administrative appeals However, personal
participation cannot be shown based solely upon one’s denial of an
administrative grievance.

Gallagher v. Shelton, 587 F.3d 1063, 1069

(10th Cir.2009).
Plaintiff names nine CCS staff as defendants, but specifically
identifies only CCS Administrator Lundry’s responses to plaintiff’s
queries, telling plaintiff that there was no established protocol for
treatment of an Inguinal hernia; that there was no definitive method
for determining the severity of pain being reported by a patient; and
that there would be no change in plaintiff’s treatment or medication.
To the extent plaintiff seeks relief from CCS, plaintiff
identifies no deprivation of necessary medical treatment pursuant to
a CCS policy or custom. See Dubbs v. Head Start, Inc., 336 F.3d 1194
(10th Cir.2003)(applying requirements in

Monell v. Department of

Social Services, 436 U.S. 658 (1978), to private § 1983 defendants
providing governmental services).
Show Cause Order to Plaintiff
The court thus directs plaintiff to show cause why the complaint
should not be summarily dismissed as stating no claim for relief.
The
failure to file a timely response may result in the complaint being
dismissed for the reasons stated herein, and without further prior
notice.

Plaintiff’s motion for appointment of counsel is denied

without prejudice to plaintiff renewing this request if this action
is

not summarily dismissed pursuant to § 1915A(b) and §

1915(e)(2)(B)(ii).
IT IS THEREFORE ORDERED that plaintiff’s motion for leave to
proceed in forma pauperis (Doc. 2) is granted, with payment of the
remainder of the $350.00 district court filing fee to proceed as
authorized by 28 U.S.C. § 1915(b)(2).
IT IS FURTHER ORDERED that plaintiff is granted twenty (20) days

to show cause why the complaint should not be dismissed as stating
no claim for relief for the reasons identified by the court.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment
of counsel (Doc. 3) is denied without prejudice.
IT IS SO ORDERED.
DATED:

This 15th day of January 2013 at Topeka, Kansas.

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