Gross v. Kochinowski et al

Filing 3

ORDER ENTERED: Plaintiff's motion 2 for discovery is denied without prejudice. Plaintiff is granted thirty (30) days in which to cure the deficiencies in the complaint herein or some claims and defendants will be dismissed. Signed by Senior District Judge Sam A. Crow on 12/18/2013. (Mailed to pro se party Glenn Douglas Gross by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GLENN DOUGLAS GROSS,
Plaintiff,
v.

CASE NO.

13-3197-SAC

GLEN KOCHINOWSKI, Sheriff,
Saline County, et al.,
Defendants.
O R D E R
This pro se civil rights complaint was filed pursuant to 42
U.S.C. § 1983 by an inmate of the Saline County Jail, Salina, Kansas.
The filing fees have been paid in full.

Plaintiff claims that while

at the jail he was prevented from posting bond, has been denied
treatment for numerous medical and mental conditions including “all
needed Rx,” and has been subjected to various “criminal acts.”

The

court screens the complaint and finds that it is defective in several
ways.

Plaintiff is given time to cure the defects.

If he fails to

comply with this Order within the prescribed time, at least some of
his claims and all but one defendant are likely to be dismissed.

ALLEGATIONS AND CLAIMS
As Count I of his complaint, plaintiff claims that he was denied
the right to bond out.

As facts in support, he alleges as follows.

He has been in Saline County Jail since June 1, 2013.

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He was

“prevented from bonding out” in June, when a bondsman was in the
booking room waiting for him but the “female ‘CO’ (guard)” refused
to open his door until he cleaned his cell, even after he told her
that he did not mess up his cell and would not clean it.

His bond

will increase as a result.
As Count II, plaintiff claims denial of access to nurses, sick
call, all needed Rx, M.D.s and a psychiatrist.

He further claims

denial

and

of

treatment

“for

every

medical

condition/disease, pain/mental illnesses.”
as follows.

psychiatric

In support, he alleges

When he arrived at the jail, he had 21 days of prescribed

suppositories for ulcerative colitis that lasted 110 days, and he
has been bleeding rectally for 8 weeks.

At the end of September 2013,

defendant Beth Komarek said his stool samples were negative, and
cancelled his Seroquel for hoarding medication “after one dose was
found in (his) cell (to be taken later that night).”
in

September,

Komarek

denied

his

shampooing his hair when she came.

medications

One morning

because

he

was

She also cancelled his Effexor,

a drug for sleep, anxiety, bipolar depression, and several other
emotional disorders.

She sent back full prescriptions of Seroquel

and Effexor without refunding money he had paid.
discontinue Effexor or Seroquel “cold turkey.”
sleep

during

experienced.

the

worst

and

longest

manic

No doctor would

He has gone without
phase

he

has

ever

He tried to see Komarek at sick call for over two months

for swelling of his feet, legs and ankles, but was ignored.
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On

September 20, 2013, he finally saw a doctor, Dr. Kepka.

He had “scabs

all over his scalp” for six weeks because Komarek refused all
prescription shampoos and until she told him to buy “Sulfur 8” shampoo
at the commissary, which helped.

Komarek has refused Zocor for

cholesterol, BP meds, Tylenol for back pain, Lasix for water,
prescription skin cream for psoriasis and seborrhea, Vaseline, mild
soap, hand lotion, 3 in 1 antibiotic ointment, nail clippers, and
“other items for toilet use.”

He has been “denied medical treatment

for ulcerative colitis, arthritis, cellulitis, psoriasis, and
seborrhea.
including

He has
Selsun

also

shampoo,

been “forced off”
Canash

other medications

suppositories,

Ketoconazole

shampoo, Cordrain cream, Triamcinolone cream, and Clonazepam.
As Count III, plaintiff claims “Criminal Acts” and lists
assault, battery, tear gas, pepper spray, tasing, and shooting with
pepper-ball guns.
tased,

He claims that he was assaulted, battered 4 times,

tear-gassed/pepper-sprayed

twice,

and

shot

with

“pepper-ball” guns 3-4 times and that these acts occurred in his cell,
in medical, in the hallway, and on the tier outside the cells.

He

states that he will present the supporting facts for this claim as
an amendment and in discovery because he is too upset to continue
and fearful that his complaint will be destroyed by jail personnel.
In another section of his complaint, Mr. Gross alleges that he
has been denied soap, water, food, blanket, pillow, sheet, mattress,
towel, washcloth, writing paper, envelopes, pen, pencils, stamps,
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all commissary items including food, coffee, cup, Bibles, books,
fresh

air,

library,

jail

lunch

(twice),

clean

clothes,

his

eyeglasses, cleaning supplies, showers, telephone, visits, and
access to his attorneys.
Plaintiff seeks millions of dollars in damages including
punitive damages, the “closing down of the Saline County Jail and/or
its medical department” and the firing of Komarek “and all personnel
involved in these abuses.”

SCREENING
Because Mr. Gross 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 on which relief
may be granted, or seeks relief from a defendant immune from such
relief.

28 U.S.C. § 1915A(a) and (b);1 28 U.S.C. § 1915(e)(2)(B).

Screening is required even though Mr. Gross paid the filing fee and

1

28 U.S.C. § 1915A provides in relevant part:
(a) Screening.-The court shall review, before docketing, if feasible
or, in any event, as soon as practicable after docketing, a complaint
in a civil action in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity.
(b) Grounds for dismissal.-On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the
complaint, if the complaint(1) is frivolous, malicious, or fails to state a claim upon
which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from
such relief.

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has not sought leave to proceed in forma pauperis.

Plunk v. Givens,

234 F.3d 1128, 1129 (10th Cir. 2000)(“The statutory language clearly
authorizes screening regardless of the prisoner litigant’s fee
status.”

Rowe v. Shake, 196 F.3d 778, 781 (7th Cir. 1999).

Accordingly, this court joins the Second, Fifth, Sixth, and Seventh
Circuits in holding that § 1915A applies to all prison litigants,
without regard to their fee status, who bring civil suits against
a governmental entity, officer, or employee.
171 F.3d 115, 116 (2d

See Carr v. Dvorin,

Cir. 1999); Martin v. Scott, 156 F.3d 578,

579-80 (5th Cir. 1998), cert. denied, 527 U.S. 1041, 119 S.Ct. 2405,
144 L.Ed.2d 803 (1999); Benson v. O'Brian, 179 F.3d 1014, 1017 (6th
Cir. 1999); Rowe, 196 F.3d at 781.)).
“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

In addition, the court accepts all well-pleaded

allegations in the complaint as true.
910, 913 (10th Cir. 2006).

Anderson v. Blake, 469 F.3d

Nevertheless, “when the allegations in

a complaint, however true, could not raise a claim of entitlement
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to relief,” dismissal is appropriate.
Twombly, 550 U.S. 544, 558 (2007).

Bell Atlantic Corp. v.

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.”

Twombly, 550 U.S. at 555.

To avoid

dismissal, the complaint’s “factual allegations must be enough to
raise a right to relief above the speculative level.”
U.S. at 555.

Twombly, 550

There must be “enough facts to state a claim to relief

that is plausible on its face.

Id. at 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.

2007).

The

court

“will

not

supply

additional

factual

allegations to round out a plaintiff’s complaint or construct a legal
theory on plaintiff’s behalf.”
1173-74 (10th Cir. 1997).

Whitney v. New Mexico, 113 F.3d 1170,

Having applied these standards to screen

the complaint filed herein, the court finds that the complaint or
portions of it are subject to being dismissed for reasons that follow.

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FAILURE TO ALLEGE PERSONAL PARTICIPATION OF EACH DEFENDANT
Plaintiff fails to allege facts sufficient to state a claim
against 16 of the 17 persons named as defendants.

“[P]ersonal

participation in the specific constitutional violation complained
of is essential.”

Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir.

2011)(citation omitted).

The only defendant actually named in the

body of the complaint together with descriptions of her personal acts
is defendant Komarek.

Plaintiff is given time to allege additional

facts describing the unconstitutional acts of each of the other named
defendants.

If he fails to allege facts showing the involvement of

any defendant, this action will be dismissed as against that
defendant.

FAILURE TO STATE CLAIM IN COUNTS I AND III
Plaintiff’s allegations are insufficient to state a federal
constitutional claim in two of his three counts.
allegations in Count I appear to be frivolous.

Plaintiff’s

His own description

of the bonding-out incident indicates that he could have left his
cell had he simply complied with the correctional officer’s direction
to clean it or had he kept it clean in the first place.

Thus, it

appears that he caused this incident.
In Count III, plaintiff fails to name any individual defendant
and then describe what acts he or she took that violated his federal
constitutional rights.

He also fails to provide any dates or
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locations of the alleged crimes.

These allegations do not afford

adequate notice to any of the defendants as to the basis for
plaintiff’s lawsuit against them.

Nor does plaintiff assert that

a particular constitutional right was violated or allege facts from
which the court can plainly infer the violation of a constitutional
right by a named defendant.

This court does not have authority to

charge individuals with crimes, as that authority belongs to the
appropriate county attorney.

Nor is the court authorized to fire

a county employee.
Plaintiff’s allegations in Count II may be viewed as a claim
of denial of medical treatment under the Eighth Amendment, which is
applicable to state inmates through the Fourteenth Amendment.
However, as noted, the only defendant named and alleged to have
actually denied medication and treatment to Mr. Gross is Beth
Komarek.

This claim may proceed against defendant Komarek only,

unless plaintiff alleges additional facts showing direct personal
participation by each of the other defendants.
Plaintiff’s claims regarding conditions of his confinement
other than denial of medical treatment are nothing more than
conclusory allegations.

He does not allege sufficient facts to show

that a constitutional violation resulted from the alleged denial of
the specified items.
the alleged denials.
injured.

He does not provide dates or the duration of
Nor does he allege by whom or how he was

For example, he does not allege that any non-frivolous
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lawsuit he has filed has been prejudiced, and thus fails to state
a claim of denial of access to the courts.
Plaintiff is given time to cure all the foregoing deficiencies
in his complaint.

If he fails to cure these defects within the time

prescribed, the defective claims will be dismissed and all claims
will

be

dismissed

as

against

any

defendant

whose

personal

participation is not adequately alleged in the body of the complaint.
Plaintiff is reminded that since he is not proceeding in forma
pauperis, he may be required to arrange for or pay any fees charged
by the U.S. Marshal for service of the complaint upon the defendants
who remain in this action.
The court has considered plaintiff’s Motion for Discovery (Doc.
2) and finds that it should be denied.
defendants have not yet been served.

This motion is premature as
Moreover, plaintiff does not

show that he has attempted to obtain the requested documents or
information by means other than a court order or that all are relevant
to this case.
IT IS THEREFORE ORDERED that plaintiff’s Motion for Discovery
(Doc. 2) is denied, without prejudice.
IT IS FURTHER ORDERED that plaintiff is granted thirty (30) days
in which to cure the deficiencies in the complaint discussed herein
or some claims and defendants will be dismissed.
IT IS SO ORDERED.
Dated this 18th day of December, 2013, at Topeka, Kansas.
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s/Sam A. Crow
U. S. Senior District Judge

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