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
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