Faulkner v. Correct Care Solutions et al

Filing 3

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 2 for leave to proceed in forma pauperis is granted. Plaintiff is granted twenty (20) days to show cause why the complaint should not be summarily dismissed as stating no claim for relief against any named defendant. Signed by Senior District Judge Sam A. Crow on 10/3/2013. (Mailed to pro se party Gary Lyn Faulkner by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

GARY LYN FAULKNER,
Plaintiff,
v.

CASE NO. 13-3127-SAC

CORRECT CARE SOLUTIONS, et al.,
Defendants.

O R D E R
Plaintiff proceeds pro se on a complaint filed under 42 U.S.C.
' 1983 while plaintiff was confined in the Johnson County Adult
Detention Center in Olathe, Kansas.

Also before the court is

plaintiff=s motion for leave to proceed in forma pauperis under 28
U.S.C. § 1915.
Motion for In Forma Pauperis, 28 U.S.C. § 1915
Plaintiff must pay the full district court filing fee in this
civil action.

See 28 U.S.C. ' 1915(b)(1)(prisoner bringing a civil

action or appeal in forma pauperis is required to pay the full filing
fee).

If granted leave to proceed in forma pauperis, plaintiff is

entitled to pay the $350.00 district court filing fee over time, as
provided by payment of an initial partial filing fee to be assessed
by the court under 28 U.S.C. ' 1915(b)(1) and by periodic payments from
plaintiff's inmate trust fund account as authorized in 28 U.S.C. '
1915(b)(2).

Pursuant to 28 U.S.C. ' 1915(b)(1), the court is required

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 a civil action.
Having reviewed plaintiff’s motion, the court finds no initial
partial filing fee may be imposed at this time due to plaintiff's
limited resources, and grants plaintiff leave to proceed in forma
pauperis.

See 28 U.S.C. ' 1915(b)(4)(where inmate has no means to pay

initial partial filing fee, prisoner is not to be prohibited from
bringing a civil action).

Plaintiff remains obligated to pay the full

$350.00 district court filing fee in this civil action, through
payments from his inmate trust fund account as authorized by 28 U.S.C.
' 1915(b)(2).
Screening of the Complaint, 28 U.S.C. § 1915A
Because plaintiff is a prisoner, the court is required to screen
the complaint to identify any viable claim, and must dismiss the
complaint or any part of it which is frivolous, malicious, fails to
state a claim upon which relief may be granted, or seeks monetary
damages from a defendant who is immune from such relief.

See 28 U.S.C.

' 1915A(a)-(b).
A pro se party=s complaint must be given a liberal construction.
Erickson v. Pardus, 551 U.S. 89 (2007).

However, a party proceeding

pro se has Athe burden of alleging sufficient facts on which a
recognized legal claim could be based.@
1106, 1110 (10th Cir.1991).

Hall v. Bellmon, 935 F.2d

To state a claim for relief, the

complaint must present allegations of fact, assumed to be true, that
Araise a right to relief above the speculative level.@
Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Bell Atlantic

The complaint must

present Aenough facts to state a claim to relief that is plausible on

its face.@

Id. at 570.

At this stage, the court accepts all

well-leaded allegations as true and views them in the light most
favorable to the plaintiff.

Id. at 555.

Having considered the complaint, the court finds it is subject
to being dismissed for the following reasons.
In this action, plaintiff seeks a complete investigation of CCS
and other unspecified relief on allegations that he was denied
appropriate and necessary medical care while confined in JCADC, and
was denied meaningful redress from grievance forms.

Plaintiff first

cites a sick call on July 2, 2013, to report a knot forming on his
penis for which he claims nothing was done but to administer
antibiotics.

Plaintiff next claims his requests for follow up care

by an orthopedic doctor and neurologist concerning plaintiff’s prior
hospitalization for two back fusions were denied.

And third,

plaintiff states his grievance forms are either not returned or the
responses provided are “frivolous and designed to cover up facts.”
Exhaustion of Administrative Remedies
The Prison Litigation Reform Act (PLRA) requires that a prisoner
exhaust his administrative remedies before bringing a lawsuit for
violation of his federally protected rights.

See 42 U.S.C. §

1997e(a)(“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.”).
“[T]he PLRA's exhaustion requirement applies to all inmate suits about
prison life, whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some other

wrong.”

Porter v. Nussle, 534 U.S. 516, 532 (2002).

A prisoner’s compliance with the exhaustion requirement in §
1997e(a) is not jurisdictional, but rather is an affirmative defense
to be raised by defendants opposing the prisoner’s suit.
Bock, 549 U.S. 199, 216 (2007).

Jones v.

Thus a prisoner is not required to

plead or demonstrate that he has exhausted available administrative
remedies.

Id.

But when it is clear from the face of the complaint

that he has failed to do so and that his failure to exhaust is not
due to the action or inaction of prison officials that thwarted the
prisoner’s attempt to exhaust, summary dismissal of the complaint
without

prejudice

is

appropriate.

See

Aquilar-Avellaveda

v.

Terrell, 478 F.3d 1223, 1225 (10th Cir.2007)(district court can
dismiss prisoner complaint for failure to state a claim if it is clear
on the face of the complaint that the prisoner has not exhausted
available administrative remedies); Tuckel v. Grover, 660 F.3d 1249,
1252 (10th Cir.2011)(“an administrative remedy is not ‘available’
under the PLRA if prison officials prevent, thwart, or hinder a
prisoner's

efforts

to

avail

himself

of

the

administrative

remedy”)(brackets and internal quotation marks omitted).
The court approved form complaint plaintiff submitted in this
case includes a question that asks plaintiff whether he had previously
sought informal or formal relief from appropriate administrative
officials

regarding

the

misconduct

alleged

in

the

complaint.

Plaintiff provided no answer, other than to indicate he found the
question not applicable.
In light of plaintiff’s third claim about his JCADC grievances,
coupled with the fact that plaintiff mailed his complaint from JCADC

only two weeks after plaintiff’s July 2, 2013, sick call, the court
finds plaintiff’s response to the question about his exhaustion of
administrative remedies is ambiguous at best, and grants plaintiff
an

opportunity

to

clarify

his

exhaustion

of

the

established

administrative remedy process at JCADC.
The Three Grounds in the Complaint
Notwithstanding

plaintiff’s

clarification

regarding

his

exhaustion of administrative remedies, the court finds the complaint
is subject to being summarily dismissed as stating no claim upon which
relief can be granted under § 1983 against any defendant.

See 42

U.S.C. § 1997e(c)(2)("In the event that a claim is, on its face,
frivolous, malicious, fails to state a claim upon which relief can
be granted, or seeks monetary relief from a defendant who is immune
from such relief, the court may dismiss the underlying claim without
first requiring the exhaustion of administrative remedies.").
Whether plaintiff was confined as a prisoner or as a pretrial
detainee, prison officials violate the Eighth Amendment when they are
deliberately indifferent to a prisoner's serious medical needs.
Estelle v. Gamble, 429 U.S. 97, 104 (1976).

See Martinez v. Beggs,

563 F.3d 1082, 1088 (10th Cir.2009)(“Under the Fourteenth Amendment
due process clause, ‘pretrial detainees are ... entitled to the degree
of protection against denial of medical attention which applies to
convicted inmates' under the Eighth Amendment.”)(quoting Garcia v.
Salt Lake County, 768 F.2d 303, 307 (10th Cir.1985)).

Plaintiff’s

bare statement that “nothing was done” for a knot forming on his penis
fails to provide a sufficient factual basis for plausibly establishing
that plaintiff presented a serious medical condition in obvious need

of medical treatment other than the antibiotics he reported being
administered.

And

it

is

well

established

that

a

prisoner’s

disagreement with the medical care being provided does not present
an actionable constitutional claim . See Fitzgerald v. Corrections
Corp. of America, 403 F.3d 1134, 1142 (10th Cir.2005)(mere difference
of opinion about treatment, even among professionals, does not give
rise to claim under the Eighth Amendment); Perkins v. Kansas Dept.
of Corrections, 165 F.3d 803, 811 (10th Cir.1999)("a prisoner who
merely disagrees with a diagnosis or a prescribed course of treatment
does not state a constitutional violation").

Absent amendment of the

complaint to provide a sufficient factual basis to establish a viable
claim of constitutional significance, plaintiff’s first and second
claims are subject to being summarily dismissed.
Plaintiff’s third claim about the quality or the lack of
responses to his administrative grievances states no claim under §
1983 for which relief can be granted.

The Tenth Circuit has

recognized that “there is no independent constitutional right to state
administrative grievance procedures.”

Boyd v. Werholtz, 443 Fed.

Appx. 331, 332 (10th Cir.2011)(citing Adams v. Rice, 40 F.3d 72, 75
(4th Cir.1994)).

Accordingly plaintiff’s third claim, based on

allegations that defendants failed to follow grievance procedures
and/or respond to his grievances, is subject to being summarily
dismissed as stating no claim for relief.
The Four Defendants Named in the Complaint
Plaintiff names the following as defendants in this action:
Correct Care Solutions (CCS); CCS Supervisor Carrie Kay; CCS Doctor
Stanton, and the Johnson County Sheriff’s Office.

The court finds the complaint lacks a sufficient factual basis
for establishing any cause of action against CCS, because plaintiff
alleges no denial of necessary medical care pursuant to a CCS custom
or policy.

See Monell v. Department of Social Services of City of

New York, 436 U.S. 658, 691-94 (1978)(stating requirements for
pursuing a § 1983 claim against a municipality); Dubbs v. Head Start,
Inc.,

336

F.3d

1194,

1216

(10th

Cir.2003)(extending

Monell

requirements to a private entity performing a state function).
Moreover,

plaintiff

alleges

no

personal

participation

by

defendants Stanton or Kay in denying plaintiff necessary medical care
for purposes of stating an actionable claim against either of these
individuals.

“Personal participation is an essential allegation in

a § 1983 claim,” Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th
Cir.1996)(quotation omitted), and “[t]here is no concept of strict
supervisor liability under § 1983.”

Serna v. Colorado Department of

Corrections, 455 F.3d 1146, 1151 (10th Cir.2006).
Finally the Jonson County Sheriff’s office is subject to being
summarily dismissed because this is not a suable entity.

See e.g.

Martinez v. Winner, 771 F.2d 424, 444 (10th Cir.1985)("The City of
Denver Police Department is not a separate suable entity.")(internal
quotation marks omitted).
Notice and Show Cause Order to Plaintiff
Thus for the reasons stated herein, plaintiff is directed to show
cause why the complaint should not be summarily dismissed as stating
no claim for relief for the reasons stated herein.

The failure to

file a timely response may result in the complaint being dismissed
without further prior notice.

IT IS THEREFORE ORDERED that plaintiff=s motion (Doc 2) for leave
to proceed in forma pauperis is granted, with payment of the $350.00
district court filing fee to proceed as authorized by 28 U.S.C. '
1915(b)(2).
IT IS FURTHER ORDERED that plaintiff is granted twenty (20) days
to show cause why the complaint should not be summarily dismissed as
stating no claim for relief against any named defendant.
A copy of this order shall be mailed to plaintiff and to the
finance officer where plaintiff is currently confined.
IT IS SO ORDERED.
DATED:

This 3rd day of October 2013 at Topeka, Kansas.

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