Huber v. Reichert et al

Filing 4

ORDER ENTERED: Plaintiff is granted thirty (30) days in which to submit to the court an initial partial filing fee of $12.00. Any objection to this order must be filed on or before the date payment is due. The failure to pay the fees as requi red herein may result in dismissal of this action without prejudice. Within the same thirty-day time period, plaintiff is required to show cause why this action should not be dismissed. Plaintiff's motion 3 to serve defendants through the Federal Bureau of Prisons is denied. Signed by Senior District Judge Sam A. Crow on 10/17/2012. (Mailed to pro se party James Jay Huber by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JAMES JAY HUBER,
Plaintiff,
v.

CASE NO.

12-3175-SAC

EDITH REICHERT,
CFNP, et al.,
Defendants.
O R D E R
This complaint was filed pursuant to 28 U.S.C. § 1331 by an
inmate of the United States Penitentiary, Leavenworth, Kansas
(USPL).

Plaintiff claims that he has been denied necessary medical

treatment and seeks money damages.

FILING FEE
The statutory fee for filing a civil complaint in federal court
is $350.00.

Plaintiff has filed an Application to Proceed without

Prepayment of Fees (Doc. 2), and has attached an Inmate Statement
in support as statutorily mandated.

Under 28 U.S.C. § 1915(b)(1),

a plaintiff granted such leave is not relieved of the obligation to
pay the full fee of $350.00 for filing a civil action.

Instead, it

merely entitles him to proceed without prepayment of the full fee,
and requires him to pay the filing fee over time through payments

1

deducted automatically from his inmate trust fund account as
authorized by § 1915(b)(2).

Furthermore, § 1915(b)(1) requires the

court 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 a civil action.

Having examined the

records of plaintiff’s account, the court finds that the average
monthly deposit to plaintiff’s account during the six-month period
for which information is provided was $ 61.86, and the average monthly
balance was much less.

The court therefore assesses an initial

partial filing fee of $ 12.00, twenty percent of the average monthly
deposit, rounded to the lower half dollar.

Plaintiff must pay this

initial partial filing fee before this action may proceed further.
He will be given time to submit the fee to the court.

His failure

to submit the assessed partial fee within the time allotted may result
in dismissal of this action without further notice.

ALLEGATIONS AND CLAIMS
Plaintiff names as defendants: Edith Reichert, employed as a
nurse at the United States Penitentiary, Florence, Colorado (USPF);
Sara Revell, Warden, USPF; unnamed Regional Director, Federal Bureau
of Prisons (BOP); unnamed Director, BOP; William McCollum, employed
as a doctor at the USPL; and Claude Chester, Warden, USPL.
support for his complaint, Mr. Huber alleges as follows.
2

As factual
In April

of 2008, while participating in outdoor recreation at the USPF,
plaintiff sustained a knee injury including “substantial cartilage
damage” and a torn medial meniscus.

On April 18, 2008, he was first

seen by medical staff at sick call and was “promptly sent to radiology
for x-rays.”
months.1

He waited but received no response for more than 4

On August 25, 2008, he returned to sick call because of

difficulty walking and “the total ineffectiveness of the pain
medication he was prescribed.”

He was advised that the pain in his

knee was not due to an injury but caused by “Mild Degenerative Change
(arthritis).”

Plaintiff did not dispute the arthritis diagnosis,

but insisted that something else must be wrong.

Defendant Nurse

Reichert made the initial diagnosis of arthritis and did not
recommend any further evaluation “though plaintiff repeatedly
returned to sick call.”
Plaintiff initiated the administrative remedies procedure. 2
Defendants Warden Revell and the unnamed Director and Regional
Director of the BOP during 2008/2009 were “made fully aware” of
plaintiff’s

“pursuit

administrative process.

for

medical

attention”

through

this

However, the only response they provided

was that he should to return to sick call.

He filed a BP-11, but

received no response.
On June 10, 2009, plaintiff returned to sick call due to pain
1

Attachments

to

complaints

may

be

considered

part

of

the

complaint.

2
Plaintiff’s exhibit D attached to his complaint shows that he submitted an
administrative remedy that was received on November 3, 2008.

3

and swelling, and x-rays were taken but no further tests were done.3
Shortly thereafter he was transferred to another institution.
On August 12, 2009, upon intake at the USPL plaintiff was
screened by defendant Dr. McCollum, explained what he had gone
through, and stated that he was still experiencing pain and limited
mobility.

Dr. McCollum failed to examine plaintiff’s knee during

the screening process. 4

Dr. McCollum said he would review the

situation but never got back to plaintiff and discontinued all his
medications.
In November 2009, plaintiff complained to defendant Warden
Chester at “Mainline,” and was advised to return to sick call.
On March 12, 2010, plaintiff returned to sick call where medial
meniscus tenderness was noted by Nurse Pettit who requested an “ortho
consult.”5

“Several months later,” plaintiff met with an orthopedic

surgeon who immediately diagnosed an injury and requested an MRI.

3
Plaintiff’s Exhibit E is of an examination on this date. It shows that he
complained of aching knee and shoulder pain, with no history of trauma. The
details of the examination of his shoulder and knee are provided, and indicate
that his gait and posture were normal. He was diagnosed with chronic pain. This
exhibit also shows that new lab and radiology tests on his knee and shoulder were
requested and medication was prescribed. Exhibit F is a Radiology Report showing
findings as to plaintiff’s chronic knee pain: “Negative except for: right knee:
small enthesophyte arising from anterior/superior aspect of patella; chronic
healed fx of distal femur.”
4
Plaintiff’s Exhibit G shows that on August 12, 2009, he was examined during
a Chronic Care Visit by Dr. McCollum who found no history of trauma, discontinued
aspirin that plaintiff had not been taking, and advised him “to report to sick
call for a sore right knee and right shoulder.”
5
Plaintiff’s Exhibit H indicates he reported that he had twisted his right
knee while jogging two years earlier. He complained that he felt “a balloon
sensation when knee is bent all the way” and a “tearing with every step.” The
examination revealed tenderness upon palpitation.

4

The MRI showed a “Medial Meniscus Tear,” and an arthroscopy was
ordered, which showed cartilage damage.

The meniscus tear and

cartilage damage caused varied swelling and a “steady, constant
pronounced limp” so that the “need for medical attention was obvious
even to a lay person.”

On May 24, 2011, “corrective surgery was

finally performed.”
Based on the foregoing allegations, plaintiff claims that he
sought and was denied medical treatment and suffered “substantial
and sustained physical pain” as well as mental/emotional stress for
“more than three years” in violation of his rights under the Eighth
Amendment.

He claims that each defendant acting in their individual

capacity had “first hand knowledge” of his “quest” for medical
treatment

and

showed

deliberate

indifference.

He

seeks

compensatory and punitive damages totaling $650,000.

SCREENING
Because Mr. Huber is a prisoner suing government officials, the
court is required by statute to screen his complaint and to dismiss
the complaint or any portion thereof that is frivolous, fails to state
a claim on which relief may be granted, or seeks relief from a
defendant immune from such relief.
28 U.S.C. § 1915(e)(2)(B).
complaint

and

applies

“less

pleadings drafted by lawyers.”

28 U.S.C. § 1915A(a) and (b);

A court liberally construes a pro se
stringent

standards

than

formal

Erickson v. Pardus, 551 U.S. 89, 94
5

(2007).

Nevertheless, a pro se litigant’s “conclusory allegations

without supporting factual averments are insufficient to state a
claim upon which relief can be based.”
1106, 1110 (10th Cir. 1991).

Hall v. Bellmon, 935 F.2d

The court “will not supply additional

factual allegations to round out a plaintiff’s complaint or construct
a legal theory on a plaintiff’s behalf.”

Whitney v. New Mexico, 113

F.3d 1170, 1173-74 (10th Cir. 1997).

The court accepts all

well-pleaded allegations in the complaint as true.
Blake, 469 F.3d 910, 913 (10th Cir. 2006).

Anderson v.

Nevertheless, “when the

allegations in a complaint, however true, could not raise a claim
of entitlement to relief,” dismissal is appropriate.
Corp. v. Twombly, 550 U.S. 544, 555, 558 (2007).

Bell Atlantic

To avoid dismissal,

the complaint’s “factual allegations must be enough to raise a right
to relief above the speculative level,” and there must be “enough
facts to state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570.

The complaint must offer “more than labels

and conclusions, and a formulaic recitation of the elements of a cause
of action.”

Id. at 555.

Having screened all materials filed, the

court finds that the complaint is subject to being dismissed for the
following reasons.

FAILURE TO STATE FACTS TO SUPPORT A CLAIM UNDER THE EIGHTH AMENDMENT
The court finds that the allegations in the complaint, taken
as true, fail to state an Eighth Amendment claim of denial of medical
6

treatment.

The United States Supreme Court has held that an inmate

advancing a claim of cruel and unusual punishment based on inadequate
provision of medical care must establish “deliberate indifference
to serious medical needs.”

Estelle v. Gamble, 429 U.S. 97, 106

(1976); Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005)(“A prison
official’s deliberate indifference to an inmate’s serious medical
needs is a violation of the Eighth Amendment’s prohibition against
cruel and unusual punishment.”).

The “deliberate indifference”

standard has two components: “an objective component requiring that
the pain or deprivation be sufficiently serious; and a subjective
component requiring that [prison] officials act with a sufficiently
culpable state of mind.”

Miller v. Glanz, 948 F.2d 1562, 1569 (10th

Cir. 1991); Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir. 2005).
To meet the objective component, the inmate must show the presence
of a “serious medical need,” that is, “a serious illness or injury.”
Estelle, 429 U.S. at 104, 105; Farmer v. Brennan, 511 U.S. 825, 834
(1994).

A serious medical need includes “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.”

Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980); Hunt

v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999).
“The subjective component is met if a prison official knows of
and disregards an excessive risk to inmate health or safety.”
Martinez, 430 F.3d at 1304 (citing Sealock v. Colorado, 218 F.3d 1205,
7

1209 (10th Cir. 2000)).

In measuring a prison official’s state of

mind, “the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.”

Id. at 1305 (citing

Riddle v. Mondragon, 83 F.3d 1197, 1204 (10th Cir. 1996)).

It

follows that an inadvertent failure to provide adequate medical care
or a negligent diagnosis “fail[s] to establish the requisite culpable
state of mind.”

Estelle, 429 U.S. at 106 (“[A] complaint that a

physician has been negligent in diagnosing or treating a medical
condition does not state a valid claim of medical mistreatment under
the Eighth Amendment.”); Wilson v. Seiter, 501 U.S. 294, 297 (1991).
As the United States Supreme Court explained:
[A]n inadvertent failure to provide adequate medical care
cannot be said to constitute “an unnecessary and wanton
infliction of pain” or to be “repugnant to the conscience
of mankind.” Thus, a complaint that a physician has been
negligent in diagnosing or treating a medical condition
does not state a valid claim of medial mistreatment under
the Eighth Amendment.
Medical malpractice does not
become a constitutional violation merely because the
victim is a prisoner. In order to state a cognizable
claim, a prisoner must allege acts or omissions
sufficiently harmful to evidence deliberate indifference
to serious medical needs. It is only such indifference
that can offend Aevolving standards of decency@ in
violation of the Eighth Amendment.
Estelle, 429 U.S. at 105-106 (footnote omitted).

Moreover, a claim

of total denial of medical care differs from a claim of inadequacy
of medical care.
1968).

Coppinger v. Townsend, 398 F.2d 392, 394 (10th Cir.

Where the complaint alleges a “series of sick calls,

8

examinations, diagnoses, and medication,” it “cannot be said there
was a ‘deliberate indifference’ to the prisoner’s complaints.”
Smart v. Villar, 547 F.2d 112, 114 (10th Cir. 1976).

Furthermore,

in situations where treatment was delayed rather than denied
altogether, the Tenth Circuit Court of Appeals requires that the
inmate suffer “substantial harm” as a result of the delay.
v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001).

Garrett

In cases involving

allegations of missed diagnoses or delayed treatment, the Tenth
Circuit has explained that plaintiffs may establish liability by
showing:
(1) a medical professional recognizes an inability to
treat the patient due to the seriousness of the condition
and his corresponding lack of expertise but nevertheless
declines or unnecessarily delays referral, e.g., a family
doctor knows that the patient needs delicate hand surgery
requiring a specialist but instead of issuing the referral
performs the operation himself; (2) a medical professional
fails to treat a medical condition so obvious that even
a layman would recognize the condition, e.g., a gangrenous
hand or a serious laceration; [or] (3) a medical
professional completely denies care although presented
with recognizable symptoms which potentially create a
medical emergency, e.g., a patient complains of chest
pains and the prison official, knowing that medical
protocol requires referral or minimal diagnostic testing
to confirm the symptoms, sends the inmate back to his cell.
Boyett v. County of Washington, 282 Fed.Appx. 667, 673 (10th
Cir.)(unpublished opinion cited for reasoning), cert. denied, 555
U.S. 1049 (2008)(quoting Self v. Crum, 439 F.3d 1227, 1232 (10th 2006),
cert. denied, 549 U.S. 856 (2006)).
Mr. Huber’s allegations and exhibits indicate that he was

9

provided, rather than denied, medical attention every time he went
to sick call.
initial

His complaint at most describes a possibly negligent

misdiagnosis

and

a

delay

in

effective

treatment.

Plaintiff’s allegations and exhibits do not show that any defendant
recognized his or her inability to treat but neglected to refer or
was presented with recognizable symptoms but completely denied care.
Plaintiff’s statement that his condition was so obvious that even
a lay person would recognize it is a formulaic recitation without
facts in support and is contradicted by the observations of various
medical providers and test results set forth in the partial medical
record provided by plaintiff.

The symptoms he describes of knee pain

and a limp may be caused by various disorders or injuries including
arthritis.
Plaintiff’s allegations regarding Dr. McCollum, read together
with his exhibits of the examination actually conducted and advice
given by this defendant, show that Dr. McCollum did not refuse to
provide him with medical care.

Instead, Dr. McCollum conducted a

general examination of Mr. Huber and told him to report to sick call
for his knee pain.

If plaintiff failed to take McCollum’s advice

to go to sick call until 7 months after it was given, that time without
treatment cannot be attributed to Dr. McCollum.

Plaintiff’s

exhibits also reveal that Dr. McCollum’s alleged discontinuance of
all plaintiff’s medication amounted to his stopping aspirin that
plaintiff had not been taking.

The court finds that the complaint
10

utterly fails to state a claim of denial of necessary medical
treatment against Dr. McCollum.
Likewise,

plaintiff’s

allegations

regarding

the

acts

or

inactions of defendants USPF Warden Revell, USPL Warden Chester,
unnamed BOP Regional Director, and unnamed BOP Director fail to state
an Eighth Amendment claim.

Plaintiff’s only factual allegation

against defendant Warden Chester is that Chester advised him to go
to sick call for his knee pain.

This can hardly be characterized

as a denial of medical care by defendant Chester.

Plaintiff’s

allegations regarding defendant Warden Revell and the two unknown
BOP officials in no way suggest that plaintiff requested necessary
medical attention from any of these individuals and that they were
qualified or authorized to provide such care but refused to assess
or diagnose and treat his symptoms.

Nor do they show that these

individuals knew about and disregarded a substantial risk of serious
harm to plaintiff.
Plaintiff appears to claim that the defendant wardens and the
BOP officials should be held liable based upon their supervisory
capacities.

He argues these defendants are the “most culpable”

because they were “in a position of authority” to “police” the BOP
through the administrative grievance process, and that they had the
“power to ensure that (constitutional) violations” did not occur.
An essential element of a civil rights claim against an individual
is that person’s direct personal participation in the acts or
11

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 claimed deprivation of a constitutional right
must be established); Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th
Cir.

1996);

Olson

v.

Stotts,

9

F.3d

1475,

1477

(10th

Cir.

1993)(affirming district court’s dismissal where “plaintiff failed
to allege personal participation of the defendants”).

“[T]he

defendant’s role must be more than one of abstract authority over
individuals who actually committed a constitutional violation.”
Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008).
held liable under

§

To be

1331, a supervisor must have personally

participated or acquiesced in the complained-of constitutional
deprivation.
1988).

See Meade v. Grubbs, 841 F.2d 1512, 1528 (10th Cir.

An “affirmative link” must exist between the constitutional

deprivation and “either the supervisor’s personal participation, his
exercise of control or direction, or his failure to supervise.”
at 1527.

Id.

This link is satisfied if “a supervisor has established

or utilized an unconstitutional policy or custom.”

Id. at 1528.

Plaintiff does not describe any unconstitutional policy or custom.
As the U.S. Supreme Court recently explained in Ashcroft v. Iqbal,
556 U.S. 662, 676 (2009):
[G]overnment officials may not be held liable for the
unconstitutional conduct of their subordinates under a
theory of respondeat superior. Iqbal Brief 46 (“[I]t is
undisputed that supervisory Bivens liability cannot be
established solely on a theory of respondeat superior”).
12

See Monell v. New York City Dept. of Social Servs., 436
U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)
(finding no vicarious liability for a municipal “person”
under 42 U.S.C. § 1983); see also Dunlop v. Munroe, 7 Cranch
242, 269, 3 L.Ed. 329 (1812) (a federal official’s
liability “will only result from his own neglect in not
properly
superintending
the
discharge”
of
his
subordinates’ duties); Robertson v. Sichel, 127 U.S. 507,
515-516, 8 S.Ct. 1286, 3 L.Ed. 203 (1888)(“A public officer
or agent is not responsible for the misfeasances or
position wrongs, or for the nonfeasances, or negligences,
or omissions of duty, of the subagents or servants or other
persons properly employed by or under him, in the discharge
of his official duties”). Because vicarious liability is
inapplicable to Bivens and § 1983 suits, a plaintiff must
plead that each Government-official defendant, through
the official=s own individual actions, has violated the
Constitution.
Id.

Plaintiff’s statement that the two wardens and the BOP Director

and Regional Director “acquiesced” in the alleged denial of medical
treatment when they failed to afford

him relief through the

administrative remedy process is simply not sufficient to show the
personal participation of each of these supervisory officials in the
alleged previous denial of medical treatment at the hands of the
medical

personnel

from

whom

plaintiff

actually

requested

and

received treatment for his symptoms.
The court finds that plaintiff fails to allege facts sufficient
to state a claim under the Eighth Amendment as against defendants
McCollum, Chester, Revell, and the two unknown BOP officials in
particular; and fails to state an Eighth Amendment claim in general.
Plaintiff is given time to allege additional facts against each of
these defendants and regarding his treatment in general that are

13

sufficient to state an Eighth Amendment claim.

If he fails to allege

additional sufficient facts, this action may be dismissed as against
these defendants without further notice.

LACK OF JURISDICTION OVER SOME DEFENDANTS
The only defendant whose acts described in the complaint include
her having examined plaintiff’s knee pain symptoms upon presentation
at sick call and her allegedly not having provided adequate treatment
is defendant Nurse Reichert.

However, plaintiff does not allege

facts or provide authority showing that this court has personal
jurisdiction over defendant Reichert or Warden Revell who were
employed at the USPF, or the unknown BOP Regional Director and unknown
BOP Director, who were also employed outside this district.

If

plaintiff fails to allege additional facts or provide authority
indicating that this court has personal jurisdiction over these
defendants within the time allotted to respond herein, this action
may be dismissed as against them for lack of jurisdiction without
further notice.

STATUTE OF LIMITATIONS BAR
A two-year statute of limitations is applicable to civil rights
claims.

Under this law, plaintiff is barred from bringing claims

based on events that occurred more than two years prior to the filing
of his complaint.

He executed his complaint on July 23, 2012.
14

It

follows that acts or inactions of defendants that took place in 2008
and 2009 are time-barred.

It appears from the face of the complaint

in this case that most, if not all, plaintiff’s claims were not
brought within that two-year time limit.

Plaintiff alleges that he

was injured and first sought medical attention in April 2008 and that
Nurse Reichert misdiagnosed and failed to properly treat his knee
condition in April 2008 and again in June 2009.

Thus, even if he

can establish jurisdiction over defendant Reichert, his claims based
upon her acts are clearly out of time.

He also alleges that he filed

administrative remedies complaining to Warden Revell and other BOP
officials regarding the alleged denial of medical treatment in 2008
and 2009.

These claims are also clearly time-barred.

The only defendants whose acts were taken within two years of
the filing of plaintiff’s complaint are Warden Chester and Dr.
McCollum.

However, the court has already discussed that plaintiff

has not alleged sufficient facts to state a claim of denial of medical
treatment against these two defendants.
Plaintiff is given time to show cause why this action should
not be dismissed as time-barred because the only facts he alleges
that might present a claim of denial of medical care against named
defendants occurred more than two years before he filed this
complaint.

If plaintiff fails to allege sufficient additional

facts, this action may be dismissed as time-barred without further
notice.
15

PLAINTIFF ORDERED TO SHOW CAUSE
Plaintiff is given time to show cause why this action should
not be dismissed for all the foregoing reasons.

If he fails to show

good cause within the time allotted, this action may be dismissed
without further notice.
MOTION TO SERVE
The court has considered plaintiff’s Motion to Serve Defendants
through the Federal BOP (Doc. 3).

In this motion, plaintiff “seeks

to perfect service” of his complaint and “all other filings in this
case” through the BOP “headquarters in Washington.”

His reasons

include that all defendants either are or were employed by the BOP
and may have moved or retired without plaintiff’s knowledge.

He asks

the court to order that service is complete upon mailing of all
materials to the BOP.

Plaintiff provides no authority for this

deviation from the rules enacted by Congress with respect to service
of process.

Since he refers to the acts of defendants taken in their

individual capacities only, each defendant will have to be personally
served if this action survives screening.

Accordingly, this motion

is denied.
IS THEREFORE BY THE COURT ORDERED that plaintiff is granted
thirty (30) days in which to submit to the court an initial partial
filing fee of $ 12.00.

Any objection to this order must be filed

16

on or before the date payment is due.

The failure to pay the fees

as required herein may result in dismissal of this action without
prejudice.
IT IS FURTHER ORDERED that within the same thirty-day time
period plaintiff is required to show cause why this action should
not be dismissed for the reasons stated herein.
IT

IS

FURTHER

ORDERED

that

plaintiff’s

Motion

to

Serve

Defendants through the Federal Bureau of Prisons (Doc. 3) is denied.
IT IS SO ORDERED.
Dated this 17th day of October, 2012, at Topeka, Kansas.

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

17