Foster v. Langdon et al

Filing 7

ORDER ENTERED: The State of Kansas is dismissed as a defendant. Counts I and II in the complaint are dismissed and defendants Pert, Bracken, Biltoft and Royer are dismissed as party defendants in this matter. Plaintiff is granted twenty (20) days to further supplement Count III in his complaint to allege how many of the remaining defendants personally participated in this alleged violation of plaintiff's rights under the Fourteenth Amendment. Signed by Senior District Judge Sam A. Crow on 12/5/2012. (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 damages and injunctive relief
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

Following the

court’s initial screening of the complaint pursuant to 28 U.S.C. §
1915A(a), the court directed plaintiff to show cause why the complaint
should not be summarily dismissed as stating no claim for relief.
Fourth and Fifth Amendments
Plaintiff seeks damages on allegations that Topeka Police
Officers

Pert, Bracken, Biltoft, and Royer violated the Fourth,

Fifth, and Fourteenth Amendments in securing the victim’s confession
and in their interrogation of plaintiff.

The court found plaintiff

presented no factual or legal basis for these claims.
1

In response,

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. Because the address reported
by plaintiff in his complaint is the address of the Shawnee County Adult Detention
Center, the court presumes plaintiff was a “prisoner” as defined by 28 U.S.C. §
1915(h) when he filed his complaint on October 3, 2012.

plaintiff reasserts legal arguments the court has found to lack legal
merit.

Thus for the reasons stated by the court on October 16, 2012,

these claims and defendants Pert, Bracken, Biltoft, and Royer are
summarily dismissed.

28 U.S.C. § 1915A(b).

Eleventh Amendment
The

court

further

found

the

Eleventh

plaintiff’s suit against the State of Kansas.
fails to address this Eleventh Amendment bar.

Amendment

barred

Plaintiff’s response
Accordingly, the court

dismisses the State of Kansas as a defendant.
Delayed Medical Care
Plaintiff also claims various defendants2 acted with deliberate
indifference to his medical needs in violation of the Fourteenth
Amendment.3

The court found plaintiff’s vague and 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 cites delayed medical treatment for his
diabetes, and claims the delayed treatment caused him physical harm.
"Under the Fourteenth Amendment's Due Process Clause, pretrial
detainees are entitled to the same degree of protection against denial
of medical care as that afforded to convicted inmates under the Eighth

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.
3
Plaintiff also alleged violations of K.S.A. 21-3425, and 28 U.S.C. § 1986,
but an alleged violation of a state statute provides no basis for relief under §
1983, and plaintiff’s conclusory claim of discrimination is insufficient to proceed
under § 1986. In response plaintiff simply identifies himself and the victim as
African American, but provides no factual or legal basis for stating a plausible
§ 1986 claim.

Amendment."

Estate of Hocker ex rel. Hocker v. Walsh, 22 F.3d 995,

998 (10th Cir.1994).

Thus a pretrial detainee=s claim that he received

inadequate medical treatment while he was in jail is evaluated under
the standard of "deliberate indifference to serious medical needs."
Id. (quotation omitted).
Deliberate indifference to a serious medical need of a prisoner
violates the Eighth Amendment.
(1992).

Hudson v. McMillian, 503 U.S. 1, 9

To state such a claim, a prisoner must show both that the

conditions of his confinement pose “a substantial risk of serious
harm,” and that officials acted with a “sufficiently culpable state
of mind” arising from “deliberate indifference to inmate health or
safety.”

Farmer v. Brennan, 511 U.S. 825, 834 and 837 (1994).

A

delay in medical treatment does not constitute a constitutional
violation unless it can be shown that the delay resulted in substantial
harm.

See White v. Colorado, 82 F.3d 364, 366-67 (10th Cir.1996);

Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir.1993).
Here, plaintiff states only that Corizon noted at some point in
time that plaintiff was diabetic, that plaintiff was to receive shoes
to protect his feet, that “others” either ignored this well accepted
standard of care or failed to recognize it was needed.

Plaintiff

claims 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(s).
These allegations could be sufficient to warrant a response, but
only if plaintiff further amends his complaint to identify which of
the remaining defendant(s) personally participated in this alleged
misconduct, because a defendant’s personal participation is an

essential allegation of a § 1983 claim.

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

direct

personal

responsibility

for

the

deprivation of a constitutional right must be established.”).

claimed
Absent

such amendment in a timely manner, this remaining count and all
remaining defendants are subject to being summarily dismissed as
stating no claim for relief.
Plaintiff is reminded that a claim of constitutional deprivation
by a municipality such as Shawnee County or the City of Topeka, or
by a private entity such as Corizon, requires sufficient facts to
plausibly find the deprivation of plaintiff’s constitutional rights
was pursuant to policy or custom of the municipality or private entity.
See Monell v Department of Social Services, 436 U.S. 658 (1978); Dubbs
v. Head Start, Inc., 336 F.3d 1194 (10th Cir.2003).

Plaintiff’s bare

and broad reference to Corizon having “a checkered past of negligence,
indifference, under staffing, inadequate training, or cost cutting,”
and to Corizon’s use of an alleged antiquated x-ray machine, is
insufficient.

Hall v. Bellmon, 935 F.2d 1106, 1108 (10th Cir.

1991)("[C]onclusory allegations without supporting factual averments
are insufficient to state a claim on which relief can be based.").
Plaintiff’s request for the production of documents in his
Shawnee County District Court criminal case, State v. Foster, Case
No. 12-CR-321, is denied without prejudice as a premature and
misdirected request for discovery.

IT IS THEREFORE ORDERED that the State of Kansas is dismissed
as a defendant.
IT IS FURTHER ORDERED that Counts I and II in the complaint are
dismissed, and that defendants Pert, Bracken, Biltoft, and Royer are
dismissed as party defendants in this matter.
IT IS FURTHER ORDERED that plaintiff is granted twenty (20) days
to further supplement Count III in his complaint to allege how any
of the remaining defendants personally participated in this alleged
violation of plaintiff’s rights under the Fourteenth Amendment.
IT IS SO ORDERED.
DATED:

This 5th day of December 2012 at Topeka, Kansas.

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