Moore v. LNU et al

Filing 3

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted thirty (30) days in which to satisfy the filing fee requirements by either paying the fees of $400.00 in full or submitting a properly completed and supported motion for leave to proceed withou t prepayment of fees on court-provided forms. Within the same thirty-day period, plaintiff is required to file an Amended Complaint that cures the deficiencies. Signed by Senior District Judge Sam A. Crow on 8/14/2013. (Mailed to pro se party Robert Moore, Sr. by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ROBERT MOORE, SR.,
Plaintiff,
v.

CASE NO.

13-3109-SAC

JOHNSON COUNTY DETENTION
FACILITY, et al.,
Defendants.
MEMORANDUM AND ORDER
This pro se civil complaint was filed pursuant to 42 U.S.C. §
1983 by an inmate while confined at the Wyandotte County Detention
Facility, Kansas City, Kansas.

Having considered the materials

filed, the court requires plaintiff to provide the financial
information mandated by federal law to support his Application to
Proceed without Prepayment of Fees and to file an Amended Complaint
in which he cures the deficiencies in his pleadings that are discussed
herein.

If he fails to comply within the time prescribed by the

court, this action may be dismissed without further notice.

FILING FEE
The fee for filing a civil complaint is $400.00, which includes
the statutory fee of $350.00 and an administrative fee of $50.00;
or for one granted leave to proceed in forma pauperis it is $350.00.

1

Plaintiff has submitted a motion to proceed without Prepayment of
Fees that is incomplete.

28 U.S.C. § 1915 requires that a prisoner

seeking to bring an action without prepayment of fees submit a motion
on court-approved forms that contain an affidavit described in
subsection (a)(1), and a “certified copy of the trust fund account
statement (or 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 confined.”

28 U.S.C. § 1915(a)(2).

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).1

Plaintiff is required to file

a motion that fully complies with federal law.

FACTUAL BACKGROUND AND CLAIMS
As the factual background for his complaint, Mr. Moore alleges
as follows.

After he had been in the county jail for 18 months, he

had a wisdom tooth that was painful and could not “eat or anything.”

1

Under § 1915(b)(2), the Finance Office of the facility where plaintiff is
currently confined would be directed 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

He saw the dentist who refused to take “them” out, told him he needed
an oral surgeon, and advised him to wait until he got out.

Plaintiff

told the dentist that he was awaiting trial and was not getting out
soon.

On the same day another inmate got his “half rotten tooth”

taken out.

“On another occasion,” plaintiff had another toothache

from the same tooth, and was charged to see “them” and for the
medicine, even though it was for the same problem.

Plaintiff wrote

a grievance to the supervisor of the clinic, and she replied that
“it’s not life or death” and to wait until he gets out.

Plaintiff

then wrote to “the Sargent (sic) and Lieutenant of the jail” who
“refused” him.

Plaintiff designates as defendants “unknown named

dentist” for Johnson County Jail and “Johnson County Adult New
Century Center,” which he describes in his complaint as “the
administrative over the jail.”
attention was denied.

He asserts that his right to medical

He seeks compensatory and punitive damages.

SCREENING
Because Mr. Moore 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).

LEGAL STANDARDS
3

“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).

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

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.

Put another way,

there must be “enough facts to state a claim to relief that is
plausible on its face.”

Id. at 570.

The Eighth Amendment provides prisoners the right to be free
from cruel and unusual punishments and is applicable to the states
4

through the Fourteenth Amendment.

The United States Supreme Court

has held that an inmate advancing a claim of cruel and unusual
punishment based on inadequate provision of medical or dental care
must establish “deliberate indifference to serious medical needs.”
Estelle v. Gamble, 429 U.S. 97, 106 (1976).

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); Mata v. Saiz, 427 F.3d 745, 751 (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).

A serious medical need includes “one that has been diagnosed

by a physician as mandating treatment or one that is so obvious that
even a lay person would easily recognize the necessity for a doctor’s
attention.”

Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980); Hunt

v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999).

“The objective

component is met if the deprivation is ‘sufficiently serious.’”
Martinez, 430 F.3d at 1304 (quoting Farmer, 511 U.S. at 834).

“The

subjective component is met if a prison official knows of and
disregards an excessive risk to inmate health or safety.”

Martinez,

430 F.3d at 1304 (citing Sealock v. Colorado, 218 F.3d 1205, 1209
5

(10th Cir. 2000).

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.”

Id. at 1305 (citing Riddle v.

Mondragon, 83 F.3d 1197, 1204 (10th Cir. 1996).

It follows that an

inadvertent failure to provide adequate medical care or a negligent
diagnosis “fail[s] to establish the requisite culpable state of
mind.”

Estelle, 429 U.S. at 106 (“[A] complaint that a physician

has been negligent in diagnosing or 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 jail medical
personnel regarding diagnosis or reasonable treatment does not
constitute cruel and unusual punishment.
106-07;

Handy

v.

Price,

996

F.2d

See Estelle, 429 U.S. at
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).

DISCUSSION
Plaintiff’s complaint is deficient in several ways.

First, he

does not provide crucial facts regarding the circumstances of his
claim.

No dates are provided for the events upon which his complaint

is based.

Moreover, he does not clearly provide the location of the
6

events.

He states in a page attached to his complaint that he “was

in New Century jail in Gardner” and had been there “over a year” when
his wisdom tooth began to bother him.

Johnson County operates two

adult detention facilities, one in Olathe, Kansas, and another in
New Century, Kansas. 2

Mr. Moore is required to file an Amended

Complaint in which he clearly sets forth the name and location of
the county jail facility at which the alleged denial of dental
treatment took place and the dates of his requests for treatment as
well

as

of

the

dentist’s

denial(s).

This

information

is

particularly crucial in this case where plaintiff does not provide
the name or any other personal information to identify the dentist
who is the only “person” named as a defendant.

If plaintiff fails

to provide these necessary facts, the complaint will be dismissed
for failure to state a claim.
Plaintiff’s allegations are not sufficient to state a claim
against “Johnson County Adult New Century Center.”
is not a “person” suable under § 1983.3
unnamed,

unidentified

dentist

designated in the caption. 4

2

is

A jail facility

Thus, at this juncture, the
the

only

proper

defendant

Plaintiff must provide sufficient

The “New Century Adult Detention Center” is located in New Century, Kansas.

3

Plaintiff does not name Johnson County as a defendant and does not describe
any policy that would render the county liable for money damages on his claim.
Supervisory officials may not be held liable based solely upon their denial of
an administrative grievance.
4

Rule 10 of the Federal Rules of Civil Procedure requires that every party
be named in the caption of the complaint. The jail and unknown dentist are the
only defendants in the caption.

7

information about the unknown dentist to allow service of process.
Moreover, in order to state a claim in federal court under §
1983 plaintiff must allege the violation of a right secured by the
Constitution and laws of the United States.

Mr. Moore does not

specify a constitutional right that he believes was violated.

The

court has liberally construed his allegation of denial of dental
treatment as asserting a claim under the Eighth and Fourteenth
Amendments.
sufficient

However, the few facts alleged by plaintiff are not
to

indifference.

state

an

Eighth

Amendment

claim

of

deliberate

Instead, they suggest at most a delay in providing

dental surgery.

A delay in providing dental or medical care does

not violate the Eighth Amendment unless there has been deliberate
indifference resulting in substantial harm.
1475 (10th Cir. 1993).

Olson v. Stotts, 9 F.3d

Mr. Moore is no longer at the Johnson County

Jail,5 but is now at the Wyandotte County Jail.

He alleges that he

is a KDOC inmate who was transferred to Wyandotte County from Lansing
Correctional Facility for court. 6
County Jail was temporary.

Thus, his stay at the Johnson

He complains that defendants there

refused to provide him with oral surgery, but does not provide the
dates of his stay at the jail and of his treatment requests, and thus

5

Thus, plaintiff is no longer being denied dental treatment by a person at
the Johnson County Jail.
6

Plaintiff does not provide a legitimate KDOC inmate number. Nor does he
provide his full name. If he is Robert Eugene Moore, Sr., then his KDOC number
is 78654, and he must set forth this information in his Amended Complaint.

8

does not reveal the length of the delay in treatment.

Nor does he

allege facts to support a claim that a delay in treatment until he
was released from the Johnson County jail to a KDOC institution,
amounted to deliberate indifference. 7

Plaintiff also fails to

allege any facts showing that he suffered substantial harm from the
alleged delay in dental treatment.
Plaintiff is required to file an Amended Complaint

8

upon

court-provided forms that cures the deficiencies discussed herein.
If he fails to comply within the time allotted, 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 fees of $400.00 in full or submitting a properly completed and
supported motion for leave to proceed without prepayment of fees on
court-provided forms.
IT IS FURTHER ORDERED that within the same thirty-day period,
plaintiff is required to file an Amended Complaint that cures the
deficiencies discussed herein.
7

Plaintiff does not allege that his wisdom tooth eventually was extracted,
and if so, when and where.
8

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 to be retained from the original complaint.
Any claims not included in the Amended Complaint are no longer before the court.
Plaintiff must write the number of this case (13-3109) at the top of the first
page of his Amended Complaint. He must name every proper defendant in the caption
of the complaint and again in its body, where he must also describe the personal
participation of each defendant.

9

The clerk is directed to send ifp and 1983 forms to plaintiff.
IT IS SO ORDERED.
Dated this 14th day of August, 2013, at Topeka, Kansas.

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

10