Foster v. Langdon et al

Filing 11

ORDER ENTERED: Plaintiff's request for reconsideration of the dismissal of Claims I and II is denied. The supplemented complaint is dismissed pursuant to 28 U.S.C. 1915(e)(2)(B)(ii). Signed by Senior District Judge Sam A. Crow on 2/14/2013. (Mailed to pro se party Modest T. Foster by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MODEST T. FOSTER,
Plaintiff,
v.

CASE NO. 12-3213-SAC

ANDREW T. LANGDON, et al.,
Defendants.

O R D E R
Plaintiff proceeds pro se and in forma pauperis on a complaint
filed under 42 U.S.C. § 1983, seeking relief on two claims based on
allegations of constitutional deprivation related to plaintiff’s
arrest and pretrial confinement on charges of aggravated assault and
domestic battery that were subsequently dismissed,1 and on one claim
of deliberate indifference to his medical needs.
Screening of the Complaint and Amended Complaint
The court screened the complaint pursuant to 28 U.S.C. §
1915A(a), and directed plaintiff to show cause why the complaint
should not be summarily dismissed as stating no claim for relief.

In

response, plaintiff filed an amended complaint.
The

court

reviewed

plaintiff’s

response

and

dismissed

plaintiff’s first and second claims, finding no legal basis for
plaintiff’s claim for damages against Topeka Police Officers Pert,
Bracken, Biltoft, and Royer on allegations that these defendants

1
See State v. Foster, Shawnee County District Court Case 12-CR-321. Plaintiff
states the charges were dismissed May 9, 2012, approximately seven weeks after
plaintiff’s preliminary hearing on March 20, 2012.

violated the Fourth, Fifth, and Fourteenth Amendments in securing the
victim’s confession and in interrogating plaintiff.

The court also

found plaintiff’s claims against the State of Kansas were barred by
the Eleventh Amendment.
As for plaintiff’s remaining third claim - that defendants2 acted
with deliberate indifference to his medical needs - the court found
plaintiff’s bare allegation of being denied necessary medical care
for

a

serious

condition

was

too

vague

to

state

a

cognizable

constitutional claim of deliberate indifference to plaintiff’s
medical needs.

In response plaintiff cited delayed medical treatment

for his diabetes, but stated only that Corizon noted at some point
in time that plaintiff was diabetic, that plaintiff was to receive
shoes to protect his feet, and that “others” either ignored this well
accepted standard of care or failed to recognize it was needed.
Plaintiff claimed this delay in providing necessary treatment caused
him to lose his right big toenail and to suffer a swollen leg with
a disfiguring deep wound to his left inner heel at some later date.
The court found these allegations could be sufficient to warrant
a response but only if plaintiff further amended his complaint to
sufficiently identify which of the remaining defendant(s) personally
participated in this alleged misconduct.

See Fogarty v. Gallegos,

523 F.3d 1147, 1162 (10th Cir.2008)(“Individual liability under § 1983
must be based on personal involvement in the alleged constitutional
violation.”)(quotation omitted); Trujillo v. Williams, 465 F.3d 1210,
2

On this claim plaintiff references Corizon (identified as the heath care
provider for Shawnee County Correctional Facility), the Shawnee County Correctional
Facility (not named as a defendant, and an entity not subject to suit), Shawnee County
Corrections Director Richard Kline, Shawnee County District Attorney Chad Taylor,
Shawnee County Assistant District Attorneys Joshua Smith and Emily Yessen, the City
of Topeka, Shawnee County, and the State of Kansas.

1227 (10th Cir.2006)(“[F]or liability to arise under § 1983, a
defendant's

direct

personal

responsibility

for

the

claimed

deprivation of a constitutional right must be established.”).
Plaintiff’s Response
Claims I and II
In response, plaintiff filed various pleadings to supplement his
complaint as amended, asking for reconsideration of the dismissal of
claims I and II.

Plaintiff shifts or clarifies his claims to now

broadly argue that he was illegally seized and restrained with
unnecessary force in violation of the Fourth Amendment, that the
police filed a false report, and that his rights under the Fifth
Amendment were violated when officers included information in their
police report that had been obtained from plaintiff without first
advising plaintiff of his constitutional rights.

However, plaintiff

was taken into custody pursuant to a presumptively valid arrest, and
there is no allegation that plaintiff’s answers to police questioning
about the presence of possible weapons was used against plaintiff in
a

criminal

proceeding

self-incrimination.

in

violation

of

his

right

against

Accordingly, plaintiff’s revised arguments for

his first and second claims continue to present no actionable claim
for

seeking

damages

under

§

1983.

Plaintiff’s

motion

for

reconsideration is denied.3
Also, to the extent plaintiff may be attempting to seek damages
from defendants Taylor, Smith, and Yessen for their involvement in
3

Alternatively, plaintiff requests an interlocutory appeal from the court’s
dismissal of Claims I and II. To the extent plaintiff seeks to appeal the court’s
dismissal of Claims I and II and/or the court’s denial of plaintiff’s motion for
reconsideration, plaintiff may do so by filing a notice of appeal in the district
court within 30 days from the final order and judgment entered this date in this
matter. See Fed.R.App.P. 4(a)(1)(A).

prosecuting plaintiff on criminal charges, any such claim is barred
by established immunity.

See Gagan v. Norton, 35 F.3d 1473, 1475

(10th Cir. 1994)(AState prosecutors are entitled to absolute immunity
against suits brought pursuant to ' 1983 for activities intimately
associated with the judicial process.@)(internal quotations omitted).
Claim III
As to plaintiff’s claim of being denied treatment for his medical
needs, the court finds the supplemented and amended complaint presents
no plausible claim of constitutional significance for the purpose of
seeking relief under § 1983.
To proceed on this claim plaintiff’s pro se allegations, when
liberally construed and taken as true, must be sufficient to plausibly
establish

that

the

alleged

deprivation

of

medical

care

was

sufficiently serious, and that defendants acted with deliberate
indifference to plaintiff’s medical needs.

See Farmer v. Brennan,

511 U.S. 825, 834 (1992)(Eighth Amendment claim of deliberate
indifference to a prisoner’s medical needs requires an objective
showing of a sufficiently serious pain or deprivation, and

a

subjective showing of a defendant’s sufficiently culpable state of
mind); Estate of Hocker ex rel. Hocker v. Walsh, 22 F.3d 995, 998 (10th
Cir.1994)(same standard applies to a pretrial detainee’s claims of
inadequate medical care).
In his response, plaintiff documents that on March 1, 2012,
Corizon authorized plaintiff to have his own shoes while confined.
The shoes were delivered to the facility the next day, but were not
given to plaintiff for twelve days.

Even if the court presumes the

lack of plaintiff’s shoes for that period of time contributed to the

accidently injury and/or loss of plaintiff’s toenail, plaintiff
identifies no defendant as personally participating in delaying
plaintiff’s acquisition of his shoes.

Moreover, notwithstanding

plaintiff’s submission to the court of his toenail, this identified
temporary loss falls far short of establishing the substantial harm
required for advancing a deliberate indifference claim based upon
delayed treatment. See White v. Colorado, 82 F.3d 364, 366-67 (10th
Cir.1996); Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir.1993).
Plaintiff continues to reference a wound on his left heel.
However, he documents that medical attention was provided for this
concern, and fails to allege any factual basis for linking the twelve
day deprivation of his street shoes to this heel wound.
Plaintiff also provides a single facility grievance in which he
complains of low blood sugar due to the lack of evening snacks, swollen
legs and feet, blood pressure concerns, fecal drainage, and acid
reflux.

No

response

to

this

grievance

is

provided,

but

significantly, plaintiff does not allege continued inattention by any
defendant to these medical issues.
And

finally,

plaintiff

identifies

no

constitutionally

significant denial of medical care pursuant to a policy or custom of
the City of Topeka, Shawnee County, or Corizon.

At best, plaintiff

contends these defendants are responsible for employing staff who
failed to provide adequate medical care to plaintiff during his
confinement in the county facility.

This is insufficient to

establish an actionable claim for relief against these municipal and
corporate defendants.

See Monell v Department of Social Services,

436 U.S. 658 (1978); Dubbs v. Head Start, Inc., 336 F.3d 1194 (10th

Cir.2003).
In sum, even if the court were to assume plaintiff’s medical
concerns

could

demonstrate

a

serious

medical

need

posing

“a

substantial risk of serious harm,” plaintiff’s allegations fail to
provide a factual basis for plausibly finding that any named defendant
acted with a “sufficiently culpable state of mind” arising from
“deliberate indifference to [plaintiff’s] health or safety.”

Farmer

v. Brennan, 511 U.S. 825, 834 and 837 (1994).
Thus for the reasons stated herein and in the show cause order
dated December 5, 2012, the court concludes the complaint as
supplemented by plaintiff should be dismissed as stating no claim for
relief.
IT

28 U.S.C. § 1915(e)(2)(B)(ii).
IS

THEREFORE

ORDERED

that

plaintiff’s

request

for

reconsideration of the dismissal of Claims I and II is denied, and
that the supplemented complaint is dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii).
IT IS SO ORDERED.
DATED:

This 14th day of February 2013 at Topeka, Kansas.

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