Johnson v. Figgins et al

Filing 3

MEMORANDUM AND ORDER ENTERED: Plaintiff's application 2 for leave to proceed without prepayment of fees is granted. Plaintiff is given thirty (30) days in which to show cause why this action should not be dismissed for failure to show the pe rsonal participation of each defendant and to allege sufficient facts to support a constituional claim of denial of medical treatment. Signed by Senior District Judge Sam A. Crow on 4/24/2013. (Mailed to pro se party Samuel Jay Johnson by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SAMUEL JAY JOHNSON,
Plaintiff,
v.

CASE NO.

13-3042-SAC

PETE FIGGINS,
Sheriff, 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 Wilson County Correctional Center, Fredonia,
Kansas.

Plaintiff claims that he was denied medical care.

The

court finds that the complaint fails to state a claim under the Eighth
Amendment, and requires plaintiff to cure the deficiencies discussed
herein or the matter will be dismissed.

FILING FEE
The statutory fee for filing a civil rights complaint is
$350.00.

Plaintiff has submitted an Application to Proceed without

Prepayment of Fees (Doc. 2).

Having considered the motion together

with the attached financial information, the court finds that
plaintiff presently lacks funds to pay the fee in full or in part.
Accordingly, the motion is granted.

1

Plaintiff is reminded that

under 28 U.S.C. § 1915(b)(1), being granted leave to proceed without
prepayment of fees does 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 funds become available pursuant to 28 U.S.C.
§ 1915(b)(2).

ALLEGATIONS AND CLAIMS
Plaintiff

names

as

defendants

Wilson

County

Sheriff’s

Department; Wilson County Correctional Facility (WCCF); Wilson
County, Kansas; Sheriff Pete Figgins; and the following employees
of the WCCF: Jason Ratzlaff, Lieutenant; Daniel McMurray, Sergeant;
Judy Micus, Former Lieutenant; and M. Kirk Hartnett, Former Captain.
As the factual background for this lawsuit, plaintiff alleges the
following.

On October 24, 2012, he was given double his normal dose

of the medication “gabapintin.”

He questioned the amount, and

Sergeant Doane who was passing out meds rechecked his chart and told
him the increased dose was correct.

Within an hour, plaintiff felt

light-headed and dizzy and his “heart started acting really weird.”1
He told Sgt. Doane about these symptoms and asked if she was sure
the new dose was correct.

Then he was informed that he should not

have been given that much.

Sgt. Doane left to call the doctor and

1

Later in his complaint, plaintiff alleges that he “was already having
problems on the gabapintin including dizziness, delusions, nausea, and muscle
tremors,” which he describes as side effects.

2

didn’t come back.

Plaintiff later spoke to Officer Curry who said

there was nothing he could do and that Sgt. Doane had told him the
doctor had said plaintiff would be OK.

Plaintiff alleges that one

could see through his shirt that his heart was “jumping around and
then locking up.”

“A little while later” plaintiff passed out, fell,

and was injured.

Later that night Curry and Doane found plaintiff,

got him into bed, and took his blood pressure which was 75/132 but
nothing else was done.

The next morning he was still in a lot of

pain and his heart was “still skipping around.”

He had difficulty

getting up to get his meds and yelled for another inmate to get help.
Sergeant Jason Ratzlaff told him to shut up or he would go to the
hole.

Johnson continued to yell for help, and “several officers”

were sent with the nurse to take him to the hole.

The nurse called

the Physician’s Assistant (PA) who said there was nothing wrong with
him and insisted that he get up.

The PA poked him in his ribs and

chest, told the nurse to give him Tylenol and Ibuprofen for pain,
but did not check his heart.

Plaintiff could not move for several

days, and his meds and meals were brought into his cell.
grievances.

He wrote

On November 2, 2012, he was taken to medical complaining

of “on going pains in (his) heart and left side” and his nose, which
he guesses was injured when he passed out.

Sheriff Figgins told

plaintiff that the PA had observed him by camera and said he had
nothing wrong with his heart and no long term effects from his
injuries, but Mr. Johnson “was not moved to a medical cell with a
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camera until almost a week later.”

On January 5, 2013, “the then

Nurse” promised to get plaintiff to a cardiologist and an Ear, Nose,
and

Throat

Specialist,

but

that

never

happened.

He

has

“continuously had problems” and been promised help, but has been put
off until the PA made rounds and for other reasons.
On February 1, Mr. Johnson was given the wrong dose for
hypertension based on his chart, even though staff knew it was wrong.
He was given the correct dose for a couple days, and then the wrong
dose again.

He states that he is “continually” given the wrong dose

and then “staff” refuses to do anything.

Plaintiff complains that

the person who provides medical services at the jail is actually a
PA and he is being denied the right to be examined and treated by
a “real licensed doctor.”

He also complains that he was “billed”

for a doctor visit when staff overdosed him but no doctor examined
him; Sheriff Figgins told him he “wasn’t given help” because it cost
too much; and Figgins is trying to act like nothing happened and
plaintiff wasn’t injured.
Plaintiff alleges that he exhausted administrative remedies on
his claims, and complains that his grievances have been irrationally
answered with “already seen and treated for problems” like nosebleed
or headache, or “contact your attorney.”

He further alleges that

when he wrote grievances “the Nurse in Medical” and Ratzlaff bickered
about who was at fault while doing nothing for plaintiff.

He also

alleges that he has been limited to two grievances a week, and most
4

are still not answered.
As the single count in his complaint, Mr. Johnson claims he has
the right to proper medical care for his injuries, which includes
being seen by a “real doctor” and cardiologist.

He seeks “proper

medical care by a doctor not an Assistant or a Nurse,” and “monetary
compensation” because he was injured due to staff actions and denied
proper medical care for his injuries and pain.

He also seeks to have

the jail staff, “this facility,” and the County pay all medical
expenses he has incurred while incarcerated at the WCCF.

SCREENING
Because Mr. Johnson 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 upon which
relief may be granted, or seeks relief from a defendant immune from
such

relief.

28

U.S.C.

§

1915A(a)

and

(b);

28

U.S.C.

§

1915(e)(2)(B).

STANDARDS
“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
5

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).

Erickson v. Pardus, 551

In addition, the court accepts all well-pleaded

allegations in the complaint as true.
910, 913 (10th Cir. 2006).

Anderson v. Blake, 469 F.3d

However, 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

A pro se litigant’s “conclusory allegations

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

Hall v. Bellmon, 935 F.2d

To avoid dismissal, the complaint’s

“factual allegations must be enough to raise a right to relief above
the speculative level.”

Twombly, 550 U.S. at 555.

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).

The court “will not

supply additional factual allegations to round out a plaintiff’s
complaint or construct a legal theory on a plaintiff’s behalf.”
6

Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
With respect to plaintiff’s claim of denial of medical treatment
in particular, the Eighth Amendment provides prisoners the right to
be free from cruel and unusual punishment.

The United States Supreme

Court has held that an inmate advancing a claim of cruel and unusual
punishment based on inadequate provision of medical care must
establish “deliberate indifference to serious medical needs.”
Estelle v. Gamble, 429 U.S. 97, 106 (1976); Boyett v. County of
Washington, 282 Fed.Appx. 667, 672 (10th Cir. 2008)(unpublished)2
(citing Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005)).

To make

out a constitutional deprivation under the deliberate indifference
standard, a plaintiff must prove two elements: (1) objectively, the
inmate’s

medical

subjectively,

the

needs

were

prison

culpable state of mind.”

“sufficiently

official

acted

serious,”

with

a

and

(2)

“sufficiently

Self v. Crum, 439 F.3d 1227, 1230-31 (10th

Cir.), cert. denied, 549 U.S. 856 (2006); see also Mata, 427 F.3d
at 751; Miller v. Glanz, 948 F.2d 1562, 1569 (10th Cir. 1991);
Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir. 2005).

In the

objective analysis, the inmate must show the presence of a “serious
medical need,” that is, “a serious illness or injury.”

Estelle, 429

U.S. at 104, 105; Farmer v. Brennan, 511 U.S. 825, 834 (1994);
Martinez, 430 F.3d at 1304.

A medical need is sufficiently serious

2

Unpublished cases are cited herein for persuasive reasoning and not as
controlling authority.

7

if it “has been diagnosed by a physician as mandating treatment or
. . . is so obvious that even a lay person would easily recognize
the necessity for a doctor’s attention.”

Sealock v. Colorado, 218

F.3d 1205, 1209 (10th Cir. 2000)(quoting Hunt v. Uphoff, 199 F.3d 1220,
1224 (10th Cir. 1999)).

A prison official has a sufficiently

culpable state of mind if the official “knows of and disregards an
excessive risk to inmate health or safety.”

Farmer, 511 U.S. at 837;

see also Estelle, 429 U.S. at 106; Martinez, 430 F.3d at 1304 (citing
Sealock, 218 F.3d at 1209).

In measuring a prison official’s state

of mind, “the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.”

Martinez, 430 F.3d

at 1305 (citing Riddle v. Mondragon, 83 F.3d 1197, 1204 (10th Cir.
1996)); Self, 439 F.3d at 1231 (quoting Farmer, 511 U.S. at 837).
An

inadvertent

failure

to

provide

adequate

medical

care

“fail[s] to establish the requisite culpable state of mind.”
Estelle, 429 U.S. at 106; Wilson v. Seiter, 501 U.S. 294, 297 (1991).
It follows that an inadvertent mistake in administering medication
constitutes medical negligence at most.
106.

See Estelle, 429 U.S. at

Negligent treatment does not constitute a medical wrong under

the Eighth Amendment.

Bruner-McMahon v. Hinshaw, 846 F.Supp.2d

1177, 1211 (D.Kan. 2012).

As the United States Supreme Court has

explained:
[A]n inadvertent failure to provide adequate medical care
8

cannot be said to constitute “an unnecessary and wanton
infliction of pain” or to be “repugnant to the conscience
of mankind.” Thus, a complaint that a physician has been
negligent in diagnosing or treating a medical condition
does not state a valid claim of medial mistreatment under
the Eighth Amendment.
Medical malpractice does not
become a constitutional violation merely because the
victim is a prisoner.
Estelle, 429 U.S. at 105-106 (footnote omitted).
Likewise, a mere difference of opinion between the inmate and
prison or jail medical personnel regarding diagnosis or reasonable
treatment does not constitute cruel and unusual punishment.

See

Estelle, 429 U.S. at 106-07; Handy v. Price, 996 F.2d 1064, 1067 (10th
Cir. 1993)(affirming that a quarrel between a prison inmate and the
doctor as to the appropriate treatment for hepatitis did not
successfully raise an Eighth Amendment claim); Ledoux v. Davies, 961
F.2d 1536 (10th Cir. 1992)(Plaintiff’s contention that he was denied
treatment

by

a

specialist

is

insufficient

to

establish

a

constitutional violation.); El’Amin v. Pearce, 750 F.2d 829, 833 (10th
Cir. 1984)(A mere difference of opinion over the adequacy of medical
treatment received cannot provide the basis for an Eighth Amendment
claim.); Oxendine v. Kaplan, 241 F.3d 1272, 1277 n. 7 (10th Cir. 2001).
The prisoner’s right is to medical care-not to the type or scope of
medical care he personally desires.
Furthermore,

“[d]elay

in

[providing]

medical

care

only

constitutes an Eighth Amendment violation where the plaintiff can
show that the delay resulted in substantial harm.”

9

Sealock, 218 F.3d

at 1210.

The Tenth Circuit has held that the “substantial harm

requirement may be satisfied by lifelong handicap, permanent loss,
or considerable pain.”

Garrett v. Stratman, 254 F.3d 949, 950 (10th

Cir. 2001).
To establish supervisory liability in a § 1983 action, the
plaintiff must show that: (1) a defendant promulgated, created,
implemented or possessed responsibility for the continued operation
of a policy; (2) the policy caused the alleged constitutional harm;
and (3) defendant acted with the state of mind required to establish
the alleged constitutional deprivation.

DISCUSSION
Plaintiff’s allegations are deficient in three main ways.
First, he does not allege facts showing the personal participation
of any named defendant in the alleged overdose or two erroneous doses
or in the failure to provide medical care for injuries resulting from
his fall.

For example, plaintiff does not allege that Sheriff

Figgins had any personal involvement in administering his medication
or providing medical treatment.

His claim that he was denied

administrative relief by certain jail employees is not sufficient
to show their personal participation in the underlying events.

The

only names mentioned in the complaint in connection with the
“gabapintin” overdose incident are Doane and Curry, and they are not
defendants.

No one is named as having given the incorrect doses of
10

hypertension

medication.

Plaintiff

mentions

Ratzlaff

in

his

complaint, but only as telling him to shut up or he would go to the
hole.

This verbal encounter was followed by plaintiff being

examined by the PA, who is also not a defendant.

Thus Mr. Johnson

fails to allege facts to establish personal participation on the part
of each defendant, which is an essential element of his claim.
failing

to

describe

each

defendant’s

personal

By

participation,

plaintiff also fails to indicate that each defendant knew of and
disregarded an excessive risk to his health or safety.
fails

to

satisfy

indifferent test.

the

subjective

component

of

the

Thus, he
deliberate

Farmer, 511 U.S. at 837.

Plaintiff similarly fails to allege sufficient facts in his
complaint to hold the WCCF or the Wilson County Sheriff’s Department
liable.

The WCCF is a jail facility that may be a department of

and/or operated by the county; however, it is not a separate suable
entity.

While a city, county, or municipality may be named as a

defendant in a civil rights action, it has been held that governmental
sub-units or departments are not separate suable entities and are
not proper defendants in a § 1983 action.

Lindsey v. Thomson, 275

Fed.Appx. 744, 747 (10th Cir. 2007)(unpublished)(citing Dean v.
Barber, 951 F.2d 1210, 1214 (11th Cir. 1992)(Sheriff’s departments
are not usually considered legal entities subject to suit.), citing
Martinez v. Winner, 771 F.2d 424, 444 (10th Cir. 1985), vacated as
moot, Tyus v. Martinez, 475 U.S. 1138 (1986)); see also Ketchum v.
11

Albuquerque Police Dept., 958 F.2d 381, at *2 (10th Cir. Mar. 12,
1991)(unpublished)(Neither a municipal police department nor a
county detention center is a suable entity because it lacks a legal
identity apart from the municipality).

In addition, plaintiff does

not allege sufficient facts to hold the County or the Sheriff in his
official capacity liable because he does not describe either a policy
or practice of the County or the Sheriff and explain how it was
unconstitutional

or

how

it

caused

plaintiff’s constitutional rights.

the

claimed

violation

of

See Monell v. Dept. of Social

Services of City of New York, 436 U.S. 658, 692 (1978).
sporadic incidents do not suggest a county custom.

Isolated,

Lankford v. City

of Hobart, 73 F.3d 283, 286 (10th Cir. 1996).
Second, plaintiff baldly alleges that he was injured in a fall,
but does not describe his injury so that it may be identified as
“sufficiently serious.”

He claims he exhibited symptoms from the

overdose that were similar to the side effects he normally had from
the medication and does not allege any lasting injury.

Since he

fails to adequately describe his injuries, he also fails to allege
facts showing that he was denied the appropriate medical care for
those injuries or that his symptoms were such that a jail employee
knew the risk of serious harm existed and drew the inference.
Third, plaintiff’s factual, as opposed to his conclusory,
allegations indicate that he received rather than was denied medical
attention.

A court need not accept “mere conclusions characterizing
12

pleaded facts.”
Cir. 1990).

Bryson v. City of Edmond, 905 F.2d 1386, 1390 (10th

Mr. Johnson’s claim thus appears to be based upon his

disagreement with the medical attention and treatment that he did
receive, and particularly the fact that it was provided by nurses
and a PA rather than a doctor.

Plaintiff does not allege facts

showing an injury from his fall that required treatment other than
the examination and pain medication that was provided.

There is no

general entitlement to be treated by a medical doctor or specialist.
In sum, the court finds that plaintiff has failed to state sufficient
facts to support a claim against any of the named defendants of
unconstitutional denial of treatment for a sufficiently serious
medical need.

PLAINTIFF REQUIRED TO SHOW CAUSE
Plaintiff is given time to cure the deficiencies in his
complaint that have been discussed herein or to otherwise show cause
why this action should not be dismissed for failure to state facts
to support a federal constitutional claim.
an Amended Complaint. 3

He may do so by filing

If he fails to cure the deficiencies

3

In order to add claims, significant fact allegations, or change defendants,
the plaintiff must submit a complete Amended Complaint. See Fed.R.Civ.P. Rule
15. An Amended Complaint is not simply an addendum to the original complaint,
but completely supersedes it. Therefore, the Amended Complaint must name all
parties and contain all claims the plaintiff intends to pursue in the action,
including any raised in the original complaint to be retained. Any claims not
included in the Amended Complaint are no longer before the court. Plaintiff must
write the number of this case (13-3042) at the top of the first page of his Amended
Complaint. He must name every defendant in the caption of the complaint and again
in its body where he must also describe the personal participation of each.

13

discussed herein or to show good cause within the prescribed time,
this action may be dismissed without further notice.
IT IS THEREFORE ORDERED that plaintiff’s Application for Leave
to Proceed without Prepayment of Fees (Doc. 2) is granted.

Plaintiff

is hereby assessed the full filing fee of $350.00, and the Finance
Office of the Facility where plaintiff is currently incarcerated is
directed to collect from plaintiff’s inmate account and pay to the
clerk of the court twenty percent (20%) of the prior month’s income
each time the amount in plaintiff’s account exceeds ten dollars
($10.00) until plaintiff’s outstanding filing fee obligation(s) are
paid in full.

Plaintiff is directed to cooperate fully with his

custodian in authorizing disbursements to satisfy the filing fee,
including but not limited to providing any written authorization
required by the custodian or any future custodian to disburse funds
from his account.
IT IS FURTHER ORDERED that plaintiff is given thirty (30) days
in which to show cause why this action should not be dismissed for
failure to show the personal participation of each defendant and to
allege sufficient facts to support a constitutional claim of denial
of medical treatment.
IT IS SO ORDERED.
Dated this 24th day of April, 2013, at Topeka, Kansas.

14

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

15