Baker v. Oneil et al

Filing 3

ORDER ENTERED: Case Nos. 12-3164-SAC and 12-3262-SAC are consolidated by the court. Plaintiff's motion for leave to proceed in forma pauperis in Case No. 12-3262-SAC is thereby moot. The complaint submitted in Case No. 12-3262-SAC is treated as plaintiff's second amended complaint filed in response to the show cause order entered on November 7, 2012. The second amended complaint in this consolidated action is dismissed as stating no claim for relief. Signed by District Judge Sam A. Crow on 1/22/2013. (Mailed to pro se party John T. Baker by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JOHN T. BAKER,
Plaintiff,
v.

CASE NO. 12-3164-SAC

CON MEDS SERVICES,
et al.,
Defendants.

JOHN T. BAKER,
Plaintiff,
v.

CASE NO. 12-3262-SAC

DR. BYAN O’NEIL, 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 while plaintiff was confined in the
Sedgwick County Detention Center in Wichita, Kansas.
On November 7, 2012, the court dismissed the Sedgwick County Jail
as a defendant, noted plaintiff’s amendment of the complaint to name
additional defendants, and directed plaintiff to clarify the facts
and claims in the amended complaint to avoid dismissal of all claims
against the remaining defendants as stating no claim for relief.
While no response is docketed in Case No. 12-3164-SAC, plaintiff
has submitted a separate complaint involving similar allegations.
Baker v. Byan Oneil, Case No. 12-3262-SAC.

The court liberally

construes this second pro se complaint as plaintiff’s response to the
show cause order entered in Case No. 12-3164-SAC, and consolidates
the two actions on its own motion.

Plaintiff’s motion for leave to

proceed in forma pauperis in Case No. 12-3262-SAC is thereby moot.
Having

reviewed

plaintiff’s

response,

however,

the

court

continues to find this consolidated action is subject to being
summarily dismissed.
"To state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the United
States and must show that the alleged deprivation was committed by
a person acting under color of state law."
42, 48 (1988).

West v. Atkins, 487 U.S.

A plaintiff must also provide facts to establish each

defendant's personal participation in the alleged deprivation of
plaintiff's constitutional rights.
994-95 (10th Cir.1996).

Jenkins v. Wood, 81 F.3d 988,

Although a pro se litigant's pleadings are

to be liberally construed, plaintiff retains the burden of alleging
Aenough facts to state a claim to relief that is plausible on its face.@
Bell

Atlantic

Corp.

v.

Twombly,

550

U.S.

544,

570

(2007)."

[C]onclusory allegations without supporting factual averments are
insufficient to state a claim on which relief can be based."

Hall

v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).
In the present case, plaintiff must allege omissions or acts
sufficiently harmful to suggest that defendants acted with deliberate
indifference to plaintiff’s serious medical needs.
Gamble, 429 U.S. 97, 105 (1976).

See Estelle v.

This deliberate indifference

standard has two components: "[1] an objective component requiring
that the pain or deprivation be sufficiently serious; and [2] a
subjective component requiring that the offending officials act with

a sufficiently culpable state of mind."

Miller v. Glanz, 948 F.2d

1562, 1569 (10th Cir.1991)(citing Wilson v. Seiter, 501 U.S. 294, 298
(1991)).
In his second amended complaint, plaintiff continues in his claim
that Con Meds Services (CMS) staff failed to provide proper medical
care after plaintiff was injured in a fall at the jail in May 2012,
and after plaintiff was injured in a prisoner altercation in July 2012.
Plaintiff cites being denied pain meds for a week after his fall, being
denied ice for facial swelling after the prisoner altercation, rude
remarks by defendant Lee, and the denial of unspecified medical care
in November 2012.

Plaintiff also continues to contend that negligent

medical care provided at the jail has damaged a finger on his left
hand.

The defendants specifically named in the second amended

complaint are:

Dr. Byan O’Neil, presumably as supervising medical

care at the jail; CMS Physician Assistant Lee; and Kendra Wolff as
supervising CMS nurses.1
However, § 1983 liability cannot be based solely on a defendant’s
supervisory

capacity,

because

government

officials

are

not

vicariously liable for the misconduct of their subordinates.

See

Serna v. Colorado Department of Corrections, 455 F.3d 1146, 1151 (10th
Cir.2006)(“There is no concept of strict supervisor liability under
§

1983.”)(quotation
1

omitted).

Plaintiff

alleges

no

specific

Plaintiff also names “all Con Meds Employees” as defendants. CMS, and CMS
employees Alicia Mefford and Jim Alexsander, named as defendants in the original
complaint as first amended, are no longer identified as defendants in the second
amended complaint. Because an amended complaint supersedes and replaces a previous
complaint, the court treats the second amended complaint as encompassing plaintiff’s
voluntary dismissal of these three defendants.

misconduct by Dr. O’Neil, thus this defendant can be dismissed because
plaintiff establishes no personal participation by this defendant in
the alleged violation of plaintiff’s constitutional rights.

See

Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir.1996)(“personal
participation is an essential allegation in a § 1983 claim”).
Likewise, plaintiff alleges only that defendant Wolff allowed
CMS staff to deny plaintiff proper medical care, including the denial
of pain medication for an eight day period after plaintiff’s fall
because the medication was either not prescribed or was unavailable
at the facility.

Even if the court were to assume this was sufficient

to establish Wolff’s personal participation in the alleged denial of
medical care, no claim for relief is stated against this defendant
because plaintiff’s allegations are inadequate to plausibly find that
Wolff acted with any deliberate indifference to plaintiff’s medical
needs.
Plaintiff claims defendant Lee refused to provide plaintiff with
ice for swelling on plaintiff’s face after plaintiff’s altercation
with another prisoner, was rude and threatening to plaintiff, and
falsely reported that plaintiff was acting up in the clinic.

However,

rude conduct does not support an actionable claim for damages under
§ 1983.

See Collins v. Cundy, 603 F.2d 825, 827 (10th Cir.1979)(mere

verbal abuse is not a constitutional violation actionable under §
1983).
swelling

And the isolated deprivation of ice for plaintiff’s facial
is

insufficient

to

plausibly

establish

constitutional claim of deliberate indifference.

an

actionable

Because

the

factual

basis

for

plaintiff’s

claims

of

constitutional deprivation has remained consistent through two
amendments of the complaint, and because the court continues to find
that factual basis insufficient to state an actionable claim for
relief under § 1983 against any defendant, the court finds allowing
plaintiff further opportunity to cure the deficiencies identified in
the second amended complaint would be futile.

Thus for the reasons

stated herein and in the show cause order entered on November 7, 2012,
the court concludes the second amended complaint should be dismissed
as stating no claim for relief.

28 U.S.C. § 1915(e)(2)(B)(ii); 28

U.S.C. § 1915A(b).
IT IS THEREFORE ORDERED that the two cases captioned herein are
consolidated by the court; that plaintiff’s motion for leave to
proceed in forma pauperis in Case 12-3262-SAC is thereby moot; and
that the complaint submitted in Case 12-3262-SAC is treated as
plaintiff’s second amended complaint, filed in response to the show
cause order entered on November 7, 2012.
IT IS FURTHER ORDERED that the second amended complaint in this
consolidated action is dismissed as stating no claim for relief.
IT IS SO ORDERED.
DATED:

This 22nd day of January 2013 at Topeka, Kansas.

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