Lewis v. Maye et al

Filing 3

MEMORANDUM AND ORDER: Plaintiff is granted 30 days to submit an intial partial filing fee of $12.50. Any objection to order must be filed by date payment is due. Failure to pay the fee, may result in dismissal of action without prejudice. Plaint iff is also given 30 days to show cause why the United States should not be substituted as sole defendnt in plaintiff's FTCA claim and why his claims against individuals should not proceed as claims for injunctive relief only and as against the individual defendants in their official capacities. Signed by Senior District Judge Sam A. Crow on 5/3/2013. Mailed to pro se party Charles F. Lewis by regular mail (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CHARLES F. LEWIS,
Plaintiff,
v.

CASE NO.

13-3050-SAC

CLAUDE MAYE, et al.,
Defendants.
MEMORANDUM AND ORDER
This

pro

se

civil

complaint

was

filed

pursuant

to

the

Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-2680 (FTCA) by
an inmate of the United States Penitentiary, Leavenworth, Kansas
(USPL).

Mr. Lewis claims that since his placement at the USPL

in September 2008 he has been denied proper medical treatment in
connection with serious conditions including “problematic stoma
colostomy issues.”
violation

of

He asserts cruel and unusual punishment in

the

Eighth

Amendment,

disregard, and excessive delays.
to

pay

required

an
to

initial
show

partial

cause

why

and

negligent

The court requires plaintiff

filing
the

careless

fee.

United

Plaintiff
States

should

is

also

not

be

substituted as defendant in the FTCA claim and why plaintiff’s
claim for injunctive relief should not be considered as against
the individual defendants in their official capacities only.

1

ASSESSMENT OF INITIAL PARTIAL FILING FEE
The statutory fee for filing a civil rights complaint is
$350.00.

Plaintiff

has

submitted

without Prepayment of Fees (Doc. 2).

an

Application

to

Proceed

He 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).1
Furthermore, § 1915(b)(1), requires the court to assess an
initial partial filing fee of twenty percent of the greater of
the average monthly deposits or average monthly balance in the
prisoner’s account for the six months immediately preceding the
date of filing of the civil action.

Having examined the records

of

finds

the

deposit during the relevant time period

was

$63.95, and the

average

The

court

plaintiff’s

monthly

account,

balance

the

was

court

$26.94.

average

monthly

therefore

assesses an initial partial filing fee of $12.50, twenty percent
of the average monthly deposit rounded to the lower half dollar.
Plaintiff must pay this initial partial filing fee before this

1

Under § 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 institution
account exceeds ten dollars ($10.00) until the filing fee has been paid in
full.

2

action may proceed further, and will be given time to submit the
fee to the court.

His failure to submit the initial fee in the

time allotted may result in dismissal of this action without
further notice.

ALLEGATIONS AND CLAIMS
As

the

factual

background

alleges the following.
Health

Services

at

for

this

lawsuit,

Mr.

Lewis

He has been under the care of the Prison

the

USPL

since

September

2008.

He

has

“problematic stoma colostomy issues” including the deteriorating
condition that “the stoma opening in (his) stomach continually
tries

to

grow

closed

with

scar

tearing, pain, and bleeding.

tissue,”

resulting

in

daily

He informed defendants upon his

arrival of prior recommendations that he see a stoma specialist
and has been waiting 3½ years to see one.

Defendants are making

medical decisions in his case based on saving money rather than
his

serious

physically

needs.

stretch

Dr.
his

McCollum

stoma

daily

has
with

instructed
his

him

fingers

to

without

proper supplies, and the stretching has resulted in a neverhealing,

toughening

wound.

An

outside

doctor

made

the

additional recommendation that he soak the stoma scar tissue
area

daily

in

a

salt

water

solution.

Plaintiff

has

tried

through administrative remedies to see a stoma specialist for
surgery or other solution to the unbearable pain and difficult
3

self-treatment.

A reduction in pharmacy resulted in his being

provided inadequate medical supplies for his condition.
were

notified

by

pharmacy

in

July

2010

that

Inmates
effective

immediately supplies would be distributed once a month, that
colostomy bags would be limited to 10 per month that could be
rinsed out and saved, and that wafers would be limited to 5 per
month with the recommendation that they be changed no more often
than 5 to 7 days.

Flex patches have been limited to 10 per

month, though his wash off during his daily soakings.

He has

been instructed to wash out pouches for re-use, which leads to
infection and requires more privacy than provided.

He has tried

through the administrative remedy process to obtain assistance
with his daily care requirements as well as adequate colostomy
supplies,
routine.

cleanliness,

and

privacy

during

his

daily

care

He needs more than the normal allotment of supplies,

but receives less than half the supplies that Medicare/Medicaid
provides.

He has sought assistance from many prison officials,2

and some have expressed surprise and sympathy at his plight, but
all eventually have deferred to Ms. Osborne and her insistence
that

plaintiff

is

receiving

adequate

supplies.

Plaintiff

alleges that Ms. Osborne refused to discuss his personal needs
when approached by others on at least 2 occasions.
2

He believes

Plaintiff alleges that he has personally discussed his medical
condition and need for additional supplies, assistance, and care in detail
with defendants on multiple occasions.
He also describes acts or inactions
on the part of each individual defendant.

4

that she is not fully aware of his circumstances, and that she
has acted with rudeness and indifference toward him.

In an

attempt at resolution he asked to go back to his prior insurance
carrier

or

additional

that

his

supplies,

friends
but

he

and

family

received

no

be

allowed

buy

When

response.

to

he

complained, he was told to report to sick call or wait until his
scheduled

chronic

care

visit.

Group

problems have not resulted in solutions.

meetings

regarding

his

Plaintiff alleges that

he has exhausted all administrative remedies, including a “tort
claim” that has not been answered.

SCREENING
Because Mr. Lewis 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,

defendant immune from such relief.

or

seeks

relief

from

a

28 U.S.C. § 1915A(a) and

(b); 28 U.S.C. § 1915(e)(2)(B).

STANDARDS
A court liberally construes a pro se complaint and applies
“less

stringent

lawyers.”

standards

than

formal

pleadings

drafted

Erickson v. Pardus, 551 U.S. 89, 94 (2007).

by
In

addition, the court accepts all well-pleaded allegations in the
5

complaint as true.
Cir. 2006).
factual

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

However, the court

allegations

to

round

“will not supply additional

out

a

plaintiff’s

complaint

construct a legal theory on a plaintiff’s behalf.”

Whitney v.

New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
litigant’s

“conclusory

allegations

without

or

A pro se

supporting

factual

averments are insufficient to state a claim upon which relief
can be based.”
1991).

The

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
complaint

must

offer

“more

than

labels

and

conclusions, and a formulaic recitation of the elements of a
cause of action.”
555 (2007).

Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

The complaint’s “factual allegations must be enough

to raise a right to relief above the speculative level,” and
there must be “enough facts to state a claim to relief that is
plausible on its face.”

Twombly, 550 U.S. at 555, 570.

DEFENDANTS
“The United States is the only proper defendant in an FTCA
action.”

Smith

v.

U.S.,

561

F.3d

1090,

1099

(10th

Cir.

2009)(citing Oxendine v. Kaplan, 241 F.3d 1272, 1275 n. 4 (10th
Cir.

2001)).

certification

28
by

U.S.C.
the

§

2679(d)(1)

Attorney

General

provides
that

that
the

“[u]pon

defendant

employee was acting within the scope of his office or employment
at the time of the incident out of which the claim arose, any
6

civil action . . . commenced upon such claim . . . shall be
deemed an action against the United States under . . . this
title . . . and the United States shall be substituted as the
party defendant.”
States

may

be

circumstances

The FTCA further provides that the United

liable

where

for

the

an

United

employee’s
States,

if

negligence
a

private

“under
person,

would be liable to the claimant in accordance with the law of
the place where the act or omission occurred.”
1346(b)(1).

Plaintiff

defendant.

Instead,

does
he

not

names

name
USPL

the

28 U.S.C. §

United

employees

States

Claude

as

Maye,

Warden; Jon Loftness, Assistant Warden; and Dr. McCollum, Clinic
Director.

He also names J. Blevins, USPHS and A. Osborn, USPHS,

persons who are apparently employees of, or medical providers
working at, the USPL.

Mr. Lewis does not indicate whether he

sues these individual defendants in their official or individual
capacities or both.

However, he alleges that defendants were

employed by the Government at the time his claims arose.
plaintiff

may

not

sue

official capacities,

federal

because

against the United States.

employees

or

agents

in

A

their

such a suit is, in effect, one
Kentucky v. Graham, 473 U.S. 159,

166 (1985)(A suit against government employees in their official
capacities is suit against government entity.); Hatten v. White,
275 F.3d 1208, 1210 (10th Cir. 2002); Farmer v. Perrill, 275
F.3d 958, 963 (10th Cir. 2001)(“There is no such animal as a
7

Bivens suit against a public official tortfeasor in his or her
official capacity.”).

CLAIM FOR INJUNCTIVE RELIEF
Plaintiff does not limit his request for relief to damages,
but also seeks injunctive relief in the form of consultation
with

a

specialist

and

adequate

medical

supplies.

However,

injunctive relief is not available under the FTCA.

Plaintiff

points to no additional jurisdictional basis and cause of action
for suing defendants for injunctive relief.

He asserts that the

defendants violated the Eighth Amendment, which might state a
cause of action under Bivens.3

However, it has been reasoned

that Bivens does not allow a plaintiff to seek equitable relief,
but only money damages.
U.S.

Forest

Jan.

24,

Service,

___F.Supp.2d___,

2013)(citing

concurring)(“For
nothing.”)).

Jarita Mesa Livestock Grazing Ass’n v.

Bivens,

people

Moreover,

in
the

403

2013

U.S.

at

Bivens’

shoes,

Tenth

Circuit

WL

466388

410
it
has

(D.N.M.

(Harlan,

is

damages

held

that

J.,
or
“a

Bivens claim can be brought only against federal officials in
their individual capacities,” and “cannot be asserted directly
3

In Bivens v. Six Unknown Named agents of Federal Bureau of Narcotics,
403 U.S. 388, 395-97 (1971), the Supreme Court recognized that citizens may
obtain money damages for injuries suffered as a result of federal agents’
violation of the Fourth Amendment.
The Supreme Court has also held that a
cause of action under Bivens, may be available against federal prison
officials for violation of the Eighth Amendment.
See Carlson v. Green, 446
U.S. 14, 18 (1980).

8

against . . . federal officials in their official capacities.”4
Smith v. U.S., 561 F.3d at 1099 (citing Farmer, 275 F.3d at
963); Chapoose v. Hodel, 831 F.2d 931, 935 (10th Cir. 1987)( An
implied right of action under Bivens seeks to impose personal
liability and damages on a federal official for violation of a
constitutional right and thus only applies against individual
defendants in their individual capacities).

For these reasons,

plaintiff’s claim for injunctive relief is not considered as
brought under either the FTCA or Bivens.

The court concludes

that plaintiff’s claim for injunctive relief proceeds against
the named individual defendants in their official capacities.5

SUMMARY
Plaintiff
construes

this

is

hereby

pro

se

notified

complaint

that
by

the

court

substituting

liberally
the

United

States as the only defendant in plaintiff’s FTCA claim and that
the

court

dismisses

plaintiff’s

FTCA

claim

as

against

all

individual defendants named by plaintiff because they are not
proper parties.6

Id.

Plaintiff’s claims against the individual

4

Plaintiff does not allege that he seeks to impose personal liability
for damages upon each named individual defendant so as to proceed against
each in his or her individual, rather than official, capacity. If he intends
to do so, he must amend his complaint in accord with Rule 15 of the Federal
Rules of Civil Procedure to include such claims and a jurisdictional basis.
5

Plaintiff does not specify from which of the several defendants he
seeks injunctive relief, so it is assumed from all.
6

The United States Supreme Court recently held:

9

defendants will proceed as a claim for injunctive relief in
their official capacities only.
IT IS THEREFORE ORDERED that plaintiff is granted thirty
(30) days in which to submit to the court an initial partial
filing fee of $ 12.50.

Any objection to this order must be

filed on or before the date payment is due.

The failure to pay

the

dismissal

fee

as

required

herein

may

result

in

of

this

action without prejudice.
IT IS FURTHER ORDERED that plaintiff is given thirty (30)
days in which to show cause why the United States should not be
substituted as the sole defendant in plaintiff’s FTCA claim, and
why

his

claims

against

the

individual

defendants

should

not

proceed as claims for injunctive relief only and as against the
individual defendants in their official capacities.
IT IS SO ORDERED.
Dated this 3rd day of May, 2013, at Topeka, Kansas.

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

“

Section 233(a) grants absolute immunity to PHS officers and employees for
actions arising out of the performance of medical or related functions within
the scope of their employment by barring all actions against them for such
conduct.
By its terms, § 233(a) limits recovery for such conduct to suits
against the United States.
Hui v. Castaneda, 559 U.S. 799, 130 S.Ct. 1845, 1851 (2010).

10