Gerlt v. Maye et al

Filing 30

ORDER ENTERED: Plaintiff's motions 26 & 28 for relief from judgment, motion 27 for reconsideration, and motion 29 to reopen case are granted. This matter is hereby reopened. This action is dismissed and all relief is denied, without p rejudice, as against the following named defendants: United States of America, "Federal Bureau of Prisons", Warden Richardson, Dr. Grote, P.A. Saturfield, John Doe, Jane Doe, Angela Dunbar, Dr. Chatterjee, United States Attorney General an d "Federal Bureau of Prisons - Grand Praire Texas." All of plaintiff's claims regarding conditions at the CCA against employees of the CCA are dismissed from this action, without prejudice; and plaintiff's claims for injunctive r elief, including that medical treatment be provided by defendants, are denied as moot. The clerk of the court shall prepare summons and waivers of service forms pursuant to Rule 4(d) of the Federal Rules of Procedure. Signed by Senior District Judge Sam A. Crow on 2/12/2014. (Mailed to pro se party Donald R. Gerlt by regular mail.) (smnd) Modified text to add dismissed defendants on 2/12/2014 (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DONALD R. GERLT,
Plaintiff,
v.

CASE NO.

12-3195-SAC

United States of
America, et al.,
Defendants.
O R D E R
This pro se civil action, erroneously styled as a habeas
corpus

petition,

was

originally

filed

in

the

District

of

Missouri and transferred to this court because plaintiff was
confined at the Leavenworth Detention Center, a private facility
operated
CCA).

by

Corrections

Corporation

of

America

(hereinafter

The court screened the initial pleading, found that Mr.

Gerlt complained of conditions of his confinement, and set forth
several ways in which his pleading was deficient.

Plaintiff was

assessed an initial partial filing fee and given the opportunity
to amend his complaint to cure the deficiencies.

On October 8,

2012, the court dismissed this action for failure to pay the
initial partial filing fee.

MOTIONS FOR RELIEF FROM JUDGMENT

1

Plaintiff has since filed four motions seeking to reopen
this action and for relief from judgment.

Plaintiff correctly

states in his motions that he paid the initial partial filing
fee in a timely manner.

The court erroneously dismissed this

action on the basis of his failure to pay the partial filing fee
because the payment was not recorded upon the case docket sheet.
Plaintiff’s post-judgment motions are granted due to the court’s
error, and the case is re-opened.

SCREENING OF SECOND AMENDED COMPLAINT
The court has screened plaintiff’s Second Amended Complaint
(Doc. 23) and finds that a response is required by some but not
all named defendants upon some but not all plaintiff’s claims.
The court begins by noting Mr. Gerlt was informed that he
was required by local court rule to submit his complaint upon
court-approved forms and was provided those forms.

His Second

Amended Complaint again fails to comply with this local court
rule because Mr. Gerlt does not fully utilize and complete the
forms provided.

Instead, he mainly refers to attachments, in

which he does not clearly set forth each of his claims followed
with the facts in support.
replete

with

durations

in

formulaic
many

The claims raised by Mr. Gerlt are

recitations

instances,

plausible factual allegations.

and

making

it

still

omit

difficult

dates
to

and

detect

Mr. Gerlt is reminded that he is
2

required to adhere to local court rules as well as the Federal
Rules of Civil Procedure, even as a pro se prisoner litigant.

A.

ALLEGATIONS AND CLAIMS IN SECOND AMENDED COMPLAINT

In his Second Amended Complaint, plaintiff alleges no facts
whatsoever on the first five pages, which include the only pages
of the court-approved form that he submits.

All his allegations

are presented in narrative form on eight non-form pages.
first

two

conclusory
numerous

paragraphs
and

at

of

most

constitutional

plaintiff’s
indicate

narrative

that,

provisions,

even

his

are

completely

though

main

The

he

claim

cites
is

of

deliberate indifference to his serious medical needs under the
Eighth Amendment.
Thereafter

in

his

Second

allegations are as follows.

Amended

Complaint,

plaintiff’s

He is a wheelchair-bound amputee.

He needs surgery at the stump site to amend nerve damage so he
can be properly fitted with a prosthesis, which he also needs.
He was denied a prosthesis by Steven Frankovich who stated in
medical records that a “wheelchair is sufficient care.”

Being

confined to a wheelchair has caused cruel and unusual punishment
to

plaintiff

including

atrophy,

deterioration and mental anguish.

inability

to

walk,

physical

He has been denied surgery

“by all places and defendants” of his confinement for over three
years.
3

Plaintiff was detained at the CCA in Leavenworth during
“pre-trial and post-conviction” between September 8, 2010, and
August 16, 2012.

A court in Missouri recommended a “speedy

transfer to a medical facility.”

He was under the care of the

United States Marshals Service (USMS) and the registered agent
of the CCA, “other defendants,” and CCA personnel.

At the CCA,

plaintiff was detained “in violation of “the A.D.A.” because the
facility was not in compliance with Department of Justice “codes
and regulations.”
as

defined

provide

by

him

“Defendants” knew he was “a disabled person

the
with

Rehabilitation

Act”

handicap-accessible

but

at

cells

times
or

did

not

showers.

Plaintiff was detained in cells on upper stairway levels with no
safety

or

accessibility

features.

seats and mobile shower heads.

Showers

lacked

stationary

On November 2, 2010, plaintiff

was given a plastic bath chair that broke in a shower with
uneven

flooring,

which

caused

plaintiff

sustained serious neck and back injuries.

to

fall.

Plaintiff

Dr. Grote refused to

see plaintiff, and it took two weeks for plaintiff to get in for
x-rays.

Plaintiff was left in severe pain for months, but was

finally taken to St. Luke’s Hospital for an MRI and epidural
shots for temporary pain relief.

To date he has not seen a

specialist, as recommended.
Defendants Franovich, Warden Richardson, Dr. Grote, P.A.
Saturfield “and all other applicable” acted “in concert” to deny
4

plaintiff sufficient medical treatment including rehabilitative
and

prosthesis

unnecessary
requests

needs,

pain.

and

which

resulted

Plaintiff

exhausted

his

in

filled

further

out

injury

numerous

administrative

remedies

and

medical
and

was

advised by Warden Richardson to pursue his issues in court.
“Defendants”
deliberate

knew

plaintiff’s

indifference

Penitentiary,

by

Leavenworth

wheelchair-bound person.
facility,

as

accessible.

required

conditions,

sending

him

(USPL)

where

and

to

the
he

acted
United

was

with
States

the

only

The USPL is not a level-3 medical
by

plaintiff

and

is

not

wheelchair-

“Defendants” forced him to walk on a prosthetic leg

that caused bruising, sores and pain, and he was made to walk up
stairs.
fitted

He suffered injuries from walking in an improperly
prosthesis.

Plaintiff

approximately

5

violations

Warden

by

to

6

months

Claude

was

detained

Maye

USPL

subjected

and

at
to

“multiple

and

his

staff.”

He

for

was

discriminated against as a disabled person in that he was not
provided
religious

access

to

the

services,

programs,

laundry

provided

to

law

recreational

service,

other

library,

canteen

inmates.

the

“leisure”

activities,
and

much

Plaintiff

library,

educational

more
filed

that

was

numerous

administrative remedies, and defendants at the USPL agreed he
should never have been sent there.

5

Plaintiff had to pay other inmates for necessary assistance
and was extorted by them.
and

his

staff”

assaulted.

who

He reported this problem to Mr. Maye

ignored

the

matter

until

plaintiff

was

After plaintiff submitted a lawsuit, Mr. Maye began

taking retaliatory action.

Mr. Gerlt was placed in segregation,

and his wheelchair was taken.

He had no other means to move

around, and for a few months was confined to a bed in a cell
without a shower and with black mold, which led to bed sores all
over his body and mental anguish.
In the month of December 2012, plaintiff spoke to Warden
Maye about the shower not being accessible and stated he had not
showered in five days.

Maye told him to use “the little blue

container,” even though it was not ADA compliant.

He informed

Associate Warden Loftness of his inability to shower due to ADA
violations.

Finally, plaintiff describes an incident on January

3, 2013, in which Warden May came to plaintiff’s cell on a
routine

visit

and,

after

plaintiff

yelled

at

him

about

the

conditions, Maye acted in a very hostile and retaliatory manner.
Maye cuffed

plaintiff,

forced him to crawl into the hallway

resulting in sores and bruising, tore up plaintiff’s belongings,
threw his medical sheets and other items into the hallway, and
threatened plaintiff.
Plaintiff,

who

is

currently

confined

at

the

Federal

Correctional Institution, Butner, North Carolina, is still being
6

denied a prosthesis “that is adequate to walk with because of
improper

socket

molding.”

The

latest

denial

was

by

P.A.

Hunterbusky, who stated that plaintiff was too short on time, so
surgery would not be scheduled.
Plaintiff cannot provide exact dates or detailed facts.
made

multiple

complaints

in

his

2009

criminal

case

He

to

“the

court” and his attorney, who finally filed two motions.

The

courts and defense counsel may be considered conspirators and
defendants.
The relief requested by plaintiff includes (1) an order
requiring defendants to provide surgery, treatment by a neck and
back

specialist,

rehabilitation,

and

a

properly-fitted

prosthesis; (2) seven million dollars in compensatory damages;
and (3) medical and all other related expenses for “all future
care required.”

B.
The

DEFENDANTS AND CLAIMS DISMISSED AND RESPONSE REQUIRED
court

requires

a

responsive

pleading

on

plaintiff’s

claims against the following individuals named as defendants:
Warden Claude Maye and USM Steven Franovich.
that

sufficient

facts

are

not

alleged

to

The court finds
show

personal

participation or other grounds for liability herein on the part
of the following named defendants, who are therefore dismissed
from this action without prejudice: United States of America,
7

“Federal Bureau of Prisons”, John Doe, Jane Doe, Warden Angela
Dunbar, and Dr. Chatterjee.

Dunbar and Chatterjee are alleged

to be employees of the FCI, Butner, North Carolina; are not
alleged to have participated in any acts that occurred at the
USPL, and are not shown to be within this court’s jurisdiction.
Furthermore, this action does not proceed against individuals
who are not named as defendants in the caption.

Rule 10 of the

Federal Rules of Civil Procedure provides that all parties must
be named in the caption of the complaint.
as

defendants

elsewhere

in

the

Second

Entities referred to
Amended

Complaint

are

United States Attorney General and “Federal Bureau of Prisons Grand Praire Texas.”

Again, plaintiff alleges no basis for

liability on the part of these federal agencies which, in any
event, as United States agencies are immune to suit for money
damages.

This

is

likewise

true

of

plaintiff’s

conclusory

statement that he was in the care of the United States Marshals
Service.

Any person or entity that defendant has mentioned in

the body of his Second Amended Complaint that has not been named
by

him

as

defendant.

a

defendant

is

not

treated

by

the

court

as

a

This includes judges who in any event are absolutely

immune to suit, and defense attorneys who in any event do not
act under color of state (or federal) law.
additional

defendants

only

by

filing

Plaintiff may name
a

complete

Complaint in which they are correctly designated.
8

Amended

The court finds that plaintiff may not properly join his
claims regarding conditions at the CCA against employees of that
private facility with his claims regarding conditions at the
USPL against USPL employees.

Plaintiff was previously informed

that he cannot combine in a single lawsuit claims about acts
taken by certain officials at one institution with claims about
acts

taken

by

different

officials

at

another

institution.

Instead, claims may only be brought in a single lawsuit that
have been caused by the same defendant or defendants, or when
all

the

claims

circumstances.

arise

from

the

Accordingly,

same

set

plaintiff’s

of

claims

facts

or

regarding

conditions at the CCA against employees at the CCA are dismissed
from this action without prejudice.

As a result, plaintiff’s

claims against Warden Richardson, Dr. Grote and P.A. Saturfield
are

dismissed

without

prejudice.

In

order

to

pursue

these

claims further, Mr. Gerlt must file a separate civil rights
lawsuit upon court-provided forms limited to claims arising at
the CCA against defendants who acted or failed to act at the
CCA.
The court denies plaintiff’s claims for injunctive relief
in the form of an order requiring that he be provided surgery,
treatment by a specialist, rehabilitation, and a properly-fitted
prosthesis.

Mr. Gerlt is no longer confined at the USPL.

As a

consequence, he is no longer subject to conditions there and is
9

no longer entitled to the provision of medical care by the USPL
defendants.
In sum, this action proceeds upon plaintiff’s claims for
damages against USM Franovich and USPL Warden Maye, as a result
of conditions and events alleged in the Second Amended Complaint
to have occurred while Mr. Gerlt was confined at the USPL.
IT IS THEREFORE ORDERED that plaintiff’s Motions for Relief
from Judgment (Docs. 26, 28), Motion for Reconsideration (Doc.
27), and Motion to Reopen Case (Doc. 29) are granted, and this
matter is hereby reopened.
IT IS FURTHER ORDERED that this action is dismissed and all
relief is denied, without prejudice, as against the following
named defendants: United States of America, “Federal Bureau of
Prisons”, Warden Richardson, Dr. Grote, P.A. Saturfield, John
Doe,

Jane

Doe,

Angela

Dunbar,

Dr.

Chatterjee,

United

States

Attorney General, and “Federal Bureau of Prisons - Grand Praire
Texas.”
IT

IS

FURTHER

ORDERED

that

all

of

plaintiff’s

claims

regarding conditions at the CCA against employees of the CCA are
dismissed

from

this

action,

without

prejudice;

and

that

plaintiff’s claims for injunctive relief, including that medical
treatment be provided by defendants, are denied as moot.
IT IS FURTHER ORDERED that the clerk of the court shall
prepare summons and waiver of service forms pursuant to Rule
10

4(d) of the Federal Rules of Procedure, to be served on the
remaining defendants by a United States Marshal or a Deputy
Marshal at no cost to plaintiff absent a finding by the court
that plaintiff is able to pay such costs.
Copies of this Order shall be transmitted to plaintiff, to
the remaining defendants, and to the United States Attorney.
IT IS SO ORDERED.
Dated this 12th day of February, 2014, at Topeka, Kansas.

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

11