Johnson v. McMurray et al

Filing 4

ORDER ENTERED: Plaintiff is given thirty (30) days in which to either provide the information from his inmate account required by statute or proof that he has properly requested and been denied this information, and to show cause why this action sho uld not be dismissed for failure to state a constitutional claim of denial of medical treatment and for failure to show personal participation of each defendant in a constitutional violation. Signed by Senior District Judge Sam A. Crow on 6/11/2013. (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.

13-3068-SAC

DANIEL McMURRAY, et al.,
Defendants.
O R D E R
This pro se civil complaint filed pursuant to 42 U.S.C. § 1983
is the latest of three filed by Mr. Johnson while he was an inmate
of the Wilson County Correctional Facility, Fredonia, Kansas. 1
Plaintiff

complains

hypertension.

of

a

denial

of

medical

treatment

for

The court finds that the complaint is deficient

including that it fails to state a claim.
opportunity to cure the deficiencies.

Plaintiff is given the

If he fails to do so within

the allotted time, this action may be dismissed without further
notice.

In addition, if the deficiencies are not cured, the court

will count this action as a strike against Mr. Johnson pursuant to
42 U.S.C. 1915(g).2

1

Mr. Johnson has submitted a Notice of Change of Address. However, the
address change is for the future. A plaintiff is required to submit a change of
address after the change has actually occurred.
2

Section 1915(g) of 28 U.S.C. provides:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil

1

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) together with an affidavit stating that
he has no funds.

He claims that “staff” will not give him copies

of his financial information because they were provided for his two
prior civil actions.

A plaintiff seeking leave to proceed without

fees is required to submit his current inmate account information
at the time each case is filed.

Plaintiff has not provided

sufficient facts including dates and names of participants to
establish that he should be excused from this requirement.
Plaintiff is again 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).3

ALLEGATIONS AND CLAIMS
action or proceeding under this section if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility, brought an action or
appeal in a court that is frivolous, malicious, or fails to state a claim upon
which relief may be granted, unless the prisoner is under imminent danger of serious
physical injury.
3

Pursuant to § 1915(b)(2), the Finance Office of the facility where plaintiff
is currently confined would 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

Plaintiff names 18 persons as defendants including Sheriff
Figgins, Undersheriff Moody, 8 correctional officers, 5 lieutenants
or sergeants, a person that he describes as “supposedly” a nurse,
and another he describes as “supposedly” a doctor but actually a
Physician’s Assistant (PA).

He asserts that he has the right to

treatment by a licensed medical doctor and to have a doctor’s order
followed and claims that he is being denied that right.
In support of his assertions, plaintiff alleges the following.
He has the serious medical condition of high blood pressure.

He is

forced to use cleaning chemicals in rooms that are not properly
ventilated and has heat pumped on him all day, which causes his blood
pressure and anxiety level to rise to dangerous levels.

Nurse Wagner

wrote “on a dry erase board in the Control Room” that his food pass
was to be left open on his door, which Mr. Johnson interprets as “a
direct medical order to leave a food port open” to insure proper
ventilation to help keep his blood pressure down.4

The new nurse

along with staff cannot find any documentation of this being a medical
order from a doctor.

Plaintiff has given “staff and medical” copies

of “multiple papers from medical stating it was a doctor’s (M.D.)
order.”

5

Officer McMurray erased it a month later saying it was not

4

Plaintiff also makes the completely conclusory statement that “staff” has
“continually” given him the wrong medication. This allegation is not considered
further as no facts are alleged in support. Mr. Johnson has been clearly advised
in his prior cases that conclusory allegations are not sufficient.
5

Plaintiff alleges that he has several grievances where “medical and staff
acknowledged” this was a medical order. However, he does not present copies of
any such papers or grievances, or summarize their content and provide dates and

3

a medical order.

Defendant P.A. McIntosh stated there was no reason

for plaintiff to have proper ventilation or fresh air.
Figgins ordered the food port shut.

Sheriff

“Staff and medical staff” do

not care and let “an assistant” override a doctor’s order.

When

asked in the form complaint what relief he believes he is entitled
to, plaintiff states that he has the right to proper ventilation and
fresh air to help his medical condition and to have a doctor’s order
followed and not overridden by a sheriff and a P.A.

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
names of officials responding.

4

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.”
U.S. 544, 555 (2007).

Bell Atlantic Corp. v. Twombly, 550

“[W]hen 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.

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).

DISCUSSION
5

Though plaintiff names 18 defendants, he refers to only 2 in
the complaint by name along with a description of their personal acts.
He has previously been informed that personal participation is a
necessary element of a civil rights claim.

Unless he alleges facts

showing the personal participation of every other named defendant,
this action is subject to dismissal as against all defendants other
than defendant Sheriff Figgins and P.A. McIntosh.
Even if plaintiff alleges facts to show every defendant’s
personal participation, the scenario on which he bases his claim
fails to evince a federal constitutional violation.

Mr. Johnson was

informed in one of his prior civil actions that, contrary to his
assertion, he is not entitled to treatment by a licensed medical
doctor.

Instead, he is entitled to proper medical treatment, and

his mere disagreement with the treatment provided by jail medical
staff is not sufficient to state a federal constitutional violation.
Moreover, plaintiff’s argument that a message written on a dry-erase
board by a nurse to leave his food pass open amounts to prescribed
medical treatment by a physician for his high blood pressure
condition does not state a plausible claim of denial of medical
treatment under the Eighth Amendment.

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 time

allotted, this action may be dismissed without further notice.

6

ADDRESS CHANGE NOTIFICATION
As noted, Mr. Johnson has filed a Notice of Change of Address
(Doc. 3).

Instead of filing a separate notice in each of his three

pending cases as required, he submitted a single notice having no
case caption but with Case No. 13-3042 written at the top.

However,

within this notice he also refers to “another complaint filed which
most assuredly will be dismissed” because he did “not state his case
as clearly” as in this one.

Thus, it appears he intended to file

this notice in other pending cases, and the clerk properly docketed
his notice in this case.

In his notice, plaintiff also stated that

he sought to voluntarily dismiss Case No. 13-3042, and could be read
to indicate that he meant to voluntarily dismiss the instant case
as well.

He alleges that he is not sure he will be well enough or

have the time to cure the deficiencies in his complaint and that he
plans

to

seek

“misrepresent”

outside
himself

counsel
or

waste

to
the

insure
time

that
of

he

the

does

not

court.

He

“acknowledge[s]” that his complaint “can and will be dismissed.”
further alleges that “another case” he has filed
assuredly”” be dismissed.

He

will “most

If plaintiff intends for the instant case

to be dismissed voluntarily, he must file a Notice of Voluntary
Dismissal in this case with the caption and case number written on
the top of the first page.
IT IS THEREFORE ORDERED that plaintiff is given thirty (30) days
in which to either provide the information from his inmate account
7

required by statute or proof that he has properly requested and been
denied this information, and to show cause why this action should
not be dismissed for failure to state a constitutional claim of denial
of medical treatment and for failure to show personal participation
of each defendant in a constitutional violation.
IT IS SO ORDERED.
Dated this 11th day of June, 2013, at Topeka, Kansas.

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

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