Keltner v. Bartz et al

Filing 4

MEMORANDUM AND ORDER ENTERED: Plaintiff is given thirty (30) days in which to submit a complete, certified copy of his inmate account statement for the appropriate six-month period. Within the same thirty-day period, plaintiff is required to show g ood cause why this action should not be dismissed for failure to state a claim. Plaintiff's motion 3 to appoint counsel is denied. Signed by Senior District Judge Sam A. Crow on 2/27/2013. (Mailed to pro se party Eugene C. Keltner by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
EUGENE C. KELTNER,
Plaintiff,
v.

CASE NO.

13-3022-SAC

(fnu) BARTZ, Nurse, Lansing
Correction Facility, et al.,
Defendants.
MEMORANDUM AND ORDER
This pro se civil complaint was filed pursuant to 42 U.S.C. §
1983 by an inmate of the El Dorado Correctional Facility, El Dorado,
Kansas.

Having examined the complaint, the court finds as follows.

MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES
The statutory fee for filing a civil rights action in federal
court is $350.00.

Plaintiff has filed a Motion to Proceed without

Prepayment of Fees (Doc. 2).

However, this motion is incomplete.

A prisoner seeking to bring a civil action without prepayment of fees
is required to submit a “certified copy of the trust fund account
statement (or institutional equivalent) for the prisoner for the
6-month period immediately preceding the filing” of the action
Aobtained from the appropriate official of each prison at which the
prisoner is or was confined.”

28 U.S.C. § 1915(a)(2).

The

financial information provided by Mr. Keltner is not for the
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appropriate six-month period and is not a certified statement showing
deposits and balances.

This action may not proceed until plaintiff

provides the financial information required by federal law.

He will

be given time to do so, and is forewarned that if he fails to comply
with the provisions of § 1915 in the time allotted, this action may
be dismissed without further notice.
Plaintiff is reminded that under 28 U.S.C. § 1915(b)(1), being
granted leave to proceed without prepayment of fees will not relieve
him of the obligation to pay the full amount of the filing fee.
Instead, it entitles him to pay the fee over time through payments
automatically deducted from his inmate trust fund account as
authorized by 28 U.S.C. § 1915(b)(2).1

FACTUAL BACKGROUND
As the factual background for this complaint, plaintiff alleges
as follows.

On March 19, 2012, at the Lansing Correctional Facility,

Lansing, Kansas (LCF), he was on the segregation yard when inmate
E in an adjacent cage attempted to climb the fence and was cut badly
on barbed wire.
catching him.

Plaintiff saw E about to fall and tried to help by
As a result, plaintiff’s face and upper body were

covered with E’s blood.

E was climbing another fence when he was

1

Pursuant to § 1915(b)(2), the Finance Office of the facility where
plaintiff is currently confined will be authorized to collect twenty percent (20%)
of the prior month’s income each time the amount in plaintiff’s account exceeds
ten dollars ($10.00) until the filing fee has been paid in full.

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tackled by officers, who were then also covered with E’s blood.
was cuffed and taken away by paramedics.

E

Three hours later, officers

began removing the remaining inmates from the yard.

Plaintiff asked

why the officers were wearing orange inmate uniforms and was told
they had been contaminated with E’s blood.
and at first defendant Beck refused.

He asked to take a shower,

Plaintiff then refused to cuff

up and return to his cell until he got a shower.

He was told to,

and did, take off his clothes because they were contaminated.

“A

short while later” Beck returned and said plaintiff could have a
shower.

Plaintiff took a 2-minute cold shower without soap, because

the officer with him refused to let him get soap from his cell and
did not know how to turn on the hot water.

“The CO” that announced

breakfast said that he and Beck would tell the next shift that
plaintiff needed a shower with soap and hot water, which never
happened.

After breakfast, plaintiff yelled for a sick call and a

shower, but officers walking by his cell ignored him.

“So finally

(plaintiff) set his whole cell on fire,” and authorities came to put
out the fire.

“Officer in charge” would not listen to plaintiff,

and informed him that he was being “put on M.R.A.”

The “Black Suites

(sic)” came and asked plaintiff to cuff up, but he refused.

“They”

shot him with “a chemical agent called Vapor that caused him to vomit
blood.”

He was dragged out of his cell handcuffed, and all his

property was taken.

He was left in a bare cell for 72 hours wearing

only boxers and still not provided a shower or sick call.
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On March

23, 2012, he was given a shower.

On this same date, he filed a

grievance that he gave to Lee.
On March 27, 2012, plaintiff was transported to “El Dorado Super
Max.”

Upon his arrival he requested HIV and HepC tests, which “they

refused” stating he had been tested in June.
grievance and “finally was tested.”

Plaintiff filed a

“Lansing” never responded to

his March 23 grievance, so he filed another at the EDCF on April 9,
2012.

In response to that grievance, Mrs. Walker told him that she

and Bartz had looked at computer records, which showed that he was
tested for HIV and HepC on May 3, 2012, as well as in June 2011 and
the results were negative.

Mrs. Walker was a Unit Team Manager, not

medical staff, and plaintiff never gave her permission to look at
his test results.

Bartz was a health care provider, and was not

allowed to give plaintiff’s test results to anyone without his
authorization.
Plaintiff additionally alleges that “[b]efore the fire and this
whole situation” he was “fighting (his) criminal court cases,” and
that since these events he was forced to sit in a cell with none of
his law work and no stamps.

He claims that as a result he was unable

to write certain motions and communicate with his attorneys, and that
he ran out of time to file “a 2254” and now has to prove why.

CLAIMS
Plaintiff complains that these events have adversely affected
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his trust in the prison medical staff and system and his access to
the courts.

Under Count I in his complaint, he claims that defendant

Nurse Bartz violated “the HIPPA law” and “Patient Confidentiality
privacy Rule” by giving his test results to Unit Team Member Walker.
He does not formulate any other count.

He seeks $250,000 in punitive

damages and “for civil penalties.”

SCREENING
Because Mr. Keltner is a prisoner, the court is required by
statute to screen his complaint and to dismiss the complaint or any
portion thereof that is frivolous, fails to state a claim on which
relief may be granted, or seeks relief from a defendant immune from
such

relief.

1915(e)(2)(B).

28

U.S.C.

§

1915A(a)

and

(b);

28

U.S.C.

§

“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.”

West v.

Atkins, 487 U.S. 42, 48-49 (1988)(citations omitted); Northington
v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992).

A court liberally

construes a pro se complaint and applies “less stringent standards
than formal pleadings drafted by lawyers.”
U.S. 89, 94 (2007).

The court accepts all well-pleaded allegations

in the complaint as true.
Cir. 2006).

Erickson v. Pardus, 551

Anderson v. Blake, 469 F.3d 910, 913 (10th

However, the court “will not supply additional factual
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allegations to round out a plaintiff’s complaint or construct a legal
theory on a plaintiff’s behalf.”

Whitney v. New Mexico, 113 F.3d

1170, 1173-74 (10th Cir. 1997).

A pro se litigant’s “conclusory

allegations without supporting factual averments are insufficient
to state a claim upon which relief can be based.”
935 F.2d 1106, 1110 (10th Cir. 1991).

Hall v. Bellmon,

The complaint must offer “more

than labels and conclusions, and a formulaic recitation of the
elements of a cause of action.”
U.S. 544, 555 (2007).

Bell Atlantic Corp. v. Twombly, 550

Moreover, “when the allegations in a

complaint, however true, could not raise a claim of entitlement to
relief,” dismissal is appropriate.

Twombly, 550 U.S. at 558.

To

avoid dismissal, the complaint’s “factual allegations must be enough
to raise a right to relief above the speculative level.”
550 U.S. at 555.

Twombly,

Put another way, there must be “enough facts to

state a claim to relief that is plausible on its face.”

Id. at 570.

The Tenth Circuit Court of Appeals has explained “that, to state a
claim in federal court, a complaint must explain what each defendant
did to [the pro se plaintiff]; when the defendant did it; how the
defendant’s action harmed (the plaintiff); and, what specific legal
right the plaintiff believes the defendant violated.”

Nasious v.

Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492
F.3d 1158, 1163 (10th Cir. 2007).

Having applied these standards

to the complaint filed herein, the court finds it is subject to being
dismissed for the following reasons.
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DEFENDANTS
It is a basic pleading requirement in a civil complaint, whether
filed pro se or not, that each individual from whom relief is sought
be named in the caption.

Rule 10 of the Federal Rules of Civil

Procedure provides that the title of the complaint “must” name all
parties.

Pro se litigants are not excused from adherence to the

Federal Rules.

In addition, the court-approved complaint form used

by plaintiff directed that he provide information on each named
defendant in the paragraphs following the caption.

Furthermore,

each properly-designated defendant must be referred to again in the
body of the complaint where the plaintiff is required to describe
each defendant’s personal participation in the acts upon which the
complaint is based.

If these basic requirements are not met at the

start of a lawsuit, service and notice problems will inevitably
follow.
In this case, plaintiff has named the following people in the
caption:

Nurse Bartz, Unit Team Walker, CO1 Beck, and Warden McKune.

In the paragraphs below the caption he provides information for Bartz
and Walker only.

The complaint fails to state a claim against

defendant Warden McKune, who is not alleged to have personally
participated in any of the acts upon which the complaint is based.
Plaintiff has not made allegations in the body of his complaint
that clearly indicate his intent to seek relief against any party
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other than those named in the caption.

Thus, this court does not

“liberally construe” the complaint as having been filed against
persons mentioned in the complaint who were not named in the caption.2

FAILURE TO STATE A FEDERAL CONSTITUTIONAL CLAIM
Plaintiff’s allegations against defendant Beck, that Beck
refused at first and a short while later permitted a shower, taken
as true fail to state a federal constitutional claim.

Plaintiff does

not state what constitutional right Beck violated or describe how
he was harmed by Beck’s actions.

Accordingly, the court finds that

plaintiff’s claim against Beck is subject to being dismissed.
Plaintiff’s claims against Bartz and Walker likewise fail to
state a federal constitutional violation.

Plaintiff alleges that

he filed a grievance regarding his requests for HIV and HepC tests,
to which Unit Team Manager Walker responded.

By complaining about

this matter in a grievance to the unit team manager, plaintiff plainly
and properly invited the involvement of defendant Walker.

It was

therefore no constitutional violation for Walker to consult with
prison medical staff while investigating his grievance regarding
medical tests.

2

Plaintiff may file an Amended Complaint if he intended to name any defendants
other than those in the caption.
He is reminded that an Amended Complaint
completely supersedes the original complaint. Therefore, he may not simply refer
to the original complaint, but must submit a complete Amended Complaint that
contains all his claims and allegations. An Amended Complaint must be upon
court-provided forms and have the number of this case, 13-3022, written at the
top of the first page.

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Nor was it a violation of patient confidentiality or plaintiff’s
right to privacy for defendant Bartz to provide this particular
information

to

circumstances.
right

to

plaintiff’s

unit

team

manager

under

these

The Supreme Court has recognized a constitutional

information

privacy

under

the

Fourteenth

Amendment,

Whalen v. Roe, 429 U.S. 589, 599–600 (1977); and the Tenth Circuit
Court of Appeals “has repeatedly interpreted the Supreme Court’s
decision

in

(Whalen)

as

creating

a

right

to

privacy

in

the

non-disclosure of personal information” including confidential
medical information.

Herring v. Keenan, 218 F.3d 1171, 1175 (10th

Cir. 2000), cert. denied, 534 U.S. 840 (2001)(citations omitted).
Nevertheless, the matter becomes more difficult when the personal
information is that of a prison inmate.

While “prison inmates do

not shed all fundamental protections of the Constitution at the
prison gates,” Wolff v. McDonnell, 418 U.S. 539, 555 (1974); they
retain only those rights that “are not inconsistent with their status
as prisoners or with the legitimate penological objections of the
corrections system.”
822 (1974)).

Id. (citing Pell v. Procunier, 417 U.S. 817,

Assuring that prison inmates receive necessary medical

attention entails cooperation between non-medical and medical prison
personnel.

This is not a case involving the improper “dissemination

of intensely private medical information” such as HIV-positive
status or transsexualism, to other inmates or random prison staff.
See e.g., Franklin v. McCaughtry, 110 Fed.Appx. 715, 719 (7th Cir.
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2004)(unpublished)(citation omitted)(Prisoners “at best have very
limited privacy rights.”); Cortes v. Johnson, 114 F.Supp.2d 182, 185
(W.D.N.Y. 2000)(Prisoners do not have a constitutional right to
complete confidentiality of medical records).
Plaintiff’s

assertion

that

Bartz

violated

HIPAA

(Health

Insurance Portability and Accountability Act, Publ.L. 104-101, 110
Stat. 1936 (Aug. 21, 1996)) by revealing his medical tests to Walker
also fails to present a plausible legal basis for his claims for money
damages or other relief.

HIPAA provides both civil and criminal

penalties

disclosures

for

improper

of

medical

information.

However, all courts to consider the matter have held that HIPAA does
not create a private right of action.

See Acara v. Banks, 470 F.3d

569, 571–72 (5th Cir. 2006)(While no other circuit court has
specifically addressed this issue . . . [e]very district court that
has considered this issue is in agreement that the statute does not
support a private right of action.)(citations omitted).

HIPAA

“specifically indicates that the Secretary of HHS (the Department
of Health and Human Services) shall pursue the action against an
alleged offender, not a private individual.”

Logan v. Dept. of

Veterans Affairs, 357 F.Supp.2d 149, 155 (D.D.C. 2004); University
of Colorado Hosp. v. Denver Pub. Co., 340 F.Supp.2d 1142, 1144-45
(D.Colo. 2004).

Since HIPAA does not make available a private right

or cause of action, plaintiff has no entitlement to injunctive or
monetary relief for alleged violations of the HIPAA.
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Howard v.

Douglas County Jail, 2009 WL 1504733, *4 (D.Kan. May 28, 2009); see
also Acara, 470 F.3d at 572 (“[T]here is no private cause of action
under HIPAA and therefore no federal subject matter jurisdiction.”);
Smith v. Smith, 2007 WL 2332394, *2 (E.D. Ky. Aug. 13, 2007)(Because
plaintiff had no private right of action under HIPAA, claim must be
dismissed with prejudice.); Taylor v. Morse, 2008 WL 3822962, *6
(N.D.Cal. Aug. 13, 2008)(Because there is no such right, plaintiff’s
HIPAA claim is not cognizable under 42 U.S.C. § 1983.).
In his statement of background facts, plaintiff describes other
alleged conditions or incidents at the EDCF including his being
sprayed with a chemical agent, placed on MRA after he set fire to
his cell, and confiscation of his property.

However, he has not

named as defendants the person or persons who actually participated
in these incidents.

Those persons who are named defendants, Walker,

Bartz and Beck, are not alleged to have personally participated in
any of these events.

Plaintiff does not even assert that his

constitutional rights were violated during these other events, which
resulted from his serious misconduct and refusal to be cuffed.

The

court may not construct a legal theory on plaintiff’s behalf.
Plaintiff’s allegations regarding the confiscation of his property
including his legal material and stamps are similarly deficient.3

3

Plaintiff’s allegations are not sufficient to state a claim of denial of
access to the courts as to either his “criminal cases” or the 2254 action that
he does have presently pending in federal court. His allegations that his efforts
in these matters were impeded by his not possessing his legal work and stamps are
conclusory. For example, he does not include dates, explain why he could not

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Plaintiff is required to show cause why this complaint should
not be dismissed based upon the foregoing reasoning for failure to
state a federal constitutional claim.

If he fails to show good cause

within the time allotted, this action may be dismissed without
further notice.
The court has considered plaintiff’s Motion to Appoint Counsel
(Doc. 3) and finds that it should be denied.
assistance of counsel in a civil action.

There is no right to

Moreover, it appears likely

that this complaint will be dismissed for failure to state a claim.

IT IS THEREFORE BY THE COURT ORDERED that plaintiff is given
thirty (30) days in which to submit a complete, certified copy of
his inmate account statement for the appropriate six-month period.
IT IS FURTHER ORDERED that within the same thirty-day period,
plaintiff is required to show good cause why this action should not
be dismissed for failure to state a claim.
IT IS FURTHER ORDERED that plaintiff’s Motion to Appoint Counsel
(Doc. 3) is denied.
IT IS SO ORDERED.
Dated this 27th day of February, 2013, at Topeka, Kansas.

communicate with his counsel by other means, or allege that any non-frivolous case
filed by him has actually been dismissed. In addition, he does not allege that
Walker, Bartz or Beck participated in denying him access or confiscating his
property.

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

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