Jones v. Moore et al
MEMORANDUM AND ORDER ENTERED: Plaintiff is granted thirty (30) days in which to satisfy the filing fee requirement by either paying the fee of $350.00 or submitting a properly completed and supported motion for leave to proceed without fees on court-provided forms. Within the same thirty-day period, plaintiff is required to show cause why this action should not be dismissed for failure to allege sufficient facts to support a constitutional claim of denial of medical treatment. Signed by Senior District Judge Sam A. Crow on 4/25/2013. (Mailed to pro se party Erik Jones by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TERI MOORE, Nurse,
Labette County Jail, et al.,
MEMORANDUM AND ORDER
This pro se civil complaint was filed pursuant to 42 U.S.C. §
1983 by an inmate of the Labette County Jail, Oswego, Kansas (LCJ).
previously-prescribed medication with medication to which he is
Mr. Jones is required to satisfy the filing fee and to
show cause why this action should not be dismissed for failure to
state sufficient facts to support a federal constitutional claim.
The statutory fee for filing a civil rights complaint is
Plaintiff has neither paid the fee nor submitted a motion
to proceed without Prepayment of Fees.
This action may not proceed
until the filing fee is satisfied in one of these two ways.
is given time to satisfy the filing fee.
If he fails to satisfy the
fee as ordered within the prescribed time, this action may be
dismissed without prejudice and without further notice.
28 U.S.C. § 1915 requires that a prisoner seeking to bring an
action without prepayment of fees submit a motion on court-provided
forms that includes an affidavit described in subsection (a)(1), and
institutional equivalent) for the prisoner for the six-month period
immediately preceding the filing” of the action “obtained from the
appropriate official of each prison at which the prisoner is or was
28 U.S.C. § 1915(a)(2).
The clerk shall be directed to
provide forms for filing a proper motion under 28 U.S.C. § 1915(a).
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 merely 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
ALLEGATIONS AND CLAIMS
As the factual basis for this lawsuit, plaintiff alleges the
He has a lengthy history of mental health problems and
Under § 1915(b)(2), the financial officer 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.
has attempted suicide at the LCJ.
The County Prosecutor moved to
have him transferred to Larned State Hospital for a competency
evaluation, and the state doctor/psychologist put him on medication.
Upon his return to the LCJ, “the nurse” switched his medications to
ones to which he is allergic and that make him sick.
Plaintiff names as defendants Teri Moore, Nurse, LCJ; Dianna
Grabitt, Jail Administrator, LCJ; and Robert Simms, Sheriff, LCJ.
Plaintiff claims that he has been subjected to cruel and unusual
punishment and medical malpractice.
He seeks monetary relief in an
unspecified amount and adequate medical services, or release so he
can find adequate medical services.
Because Mr. Jones 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
28 U.S.C. § 1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(B).
“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.”
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).
Erickson v. Pardus, 551
However, 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.”
F.3d 1170, 1173-74 (10th Cir. 1997).
Whitney v. New Mexico, 113
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.”
Bell Atlantic Corp. v. Twombly, 550
allegations in the complaint as true.
910, 913 (10th Cir. 2006).
Anderson v. Blake, 469 F.3d
Still, “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.
avoid dismissal, 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.”
Id. at 555, 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.
With respect to claims of denial of proper medical treatment
in particular, 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
The “deliberate indifference” standard has two components:
“an objective component requiring that the pain or deprivation be
sufficiently serious; and a subjective component requiring that
[prison] officials act with a sufficiently culpable state of mind.”
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).
subjective component is met if a prison official knows of and
disregards an excessive risk to inmate health or safety.”
430 F.3d at 1304 (citing Sealock v. Colorado, 218 F.3d 1205, 1209
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.” Id. at
1305 (citing Riddle v. Mondragon, 83 F.3d 1197, 1204 (10th Cir.
It follows that an inadvertent failure to provide adequate
medical care “fail[s] to establish the requisite culpable state of
Estelle, 429 U.S. at 106 (“[A] complaint that a physician
has been negligent in treating a medical condition does not state
a valid claim of medical mistreatment under the Eighth Amendment.”);
Wilson v. Seiter, 501 U.S. 294, 297 (1991).
Likewise, a mere
difference of opinion between the inmate and prison or jail medical
personnel regarding 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);
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.); Smart v. Villar,
547 F.2d 112, 114 (10th Cir. 1976)(Where the complaint alleges a
“series of sick calls, examinations, diagnoses, and medication,” it
“cannot be said there was a ‘deliberate indifference’ to the
As the United States Supreme Court has
[A]n inadvertent failure to provide adequate medical care
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).
The inmate’s right
is to medical care-not to the type or scope of medical care he
In the instant action, plaintiff does not allege that he is being
denied all treatment for his mental health condition. 2
allegations and exhibits indicate that he has been diagnosed as
requiring medication and is being provided medication.
Nor does he
allege facts indicating that the medication prescribed by the Larned
psychologist is the only medication to properly treat his condition.
Plaintiff’s allegations thus indicate a mere difference of opinion
between him and jail medical staff as to what medication is
appropriate for his condition.
Mr. Jones is not entitled to a
particular medication that he desires.
Plaintiff provides no dates regarding any of the events of which he
Plaintiff alleges that he is allergic to the medication provided
at the LCJ and that it makes him sick.
However, he alleges no facts
indicating that he has brought these problems to the attention of
medical staff and that they have acted with deliberate indifference.
His own exhibits show that he has been instructed to fill out medical
requests on two very recent occasions,3 but not that he complied with
this jail procedure.
Nor does he allege that he has presented to
medical staff at the LCJ with symptoms indicating that the medication
currently being provided is itself causing a serious medical
An inadvertent failure to provide a certain medication
that has not produced side effects when there are other options
available might amount to medical malpractice at most, which does
not state a viable claim under § 1983.
In addition, plaintiff does not allege facts showing that any
In fact, these grievances were submitted only days before this complaint
was filed. It thus appears from the face of the complaint that Mr. Jones did not
fully and properly exhaust the available administrative remedies prior to filing
this civil rights action including having submitted proper medical requests as
directed. 42 U.S.C. § 1997e(a)expressly provides:
No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.
Id. This exhaustion requirement “is mandatory, and the district court [is] not
authorized to dispense with it.” Beaudry v. Corrections Corp. of Am., 331 F.3d
1164, 1167 n. 5 (10th Cir. 2003), cert. denied, 540 U.S. 1118 (2004); Little v.
Jones, 607 F.3d 1245, 1249 (10th Cir. 2010).
While failure to exhaust generally
is an affirmative defense when that failure is clear from materials filed by
plaintiff, the court may sua sponte require plaintiff to show that he has exhausted.
See Aquilar Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir.
2007)(acknowledging district courts may raise exhaustion question sua sponte,
consistent with 42 U.S.C. § 1997e(c)(1) and 28 U.S.C. §§ 1915 and 1915A, and dismiss
prisoner complaint for failure to state a claim if it is clear from face of complaint
that prisoner has not exhausted administrative remedies).
defendant other than Nurse Moore participated in the prescription
of his medication.
Personal participation is an essential element
of a claim against an individual under § 1983.
and Simms cannot be held liable simply based upon their supervisory
Plaintiff is given time to cure the deficiencies in his
complaint that have been discussed herein.
If he fails to cure these
deficiencies within the prescribed time, this action may be dismissed
without further notice.
IT IS THEREFORE ORDERED that plaintiff is granted thirty (30)
days in which to satisfy the filing fee requirement by either paying
the fee of $350.00 or submitting a properly completed and supported
motion for leave to proceed without fees on court-provided forms.
IT IS FURTHER ORDERED that within the same thirty-day period
plaintiff is required to show cause why this action should not be
dismissed for failure to allege sufficient facts to support a
constitutional claim of denial of medical treatment.
The clerk is directed to send IFP forms to plaintiff.
IT IS SO ORDERED.
Dated this 25th day of April, 2013, at Topeka, Kansas.
s/Sam A. Crow
U. S. Senior District Judge
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