Gadbury (ID 93743) v. Bush et al

Filing 7

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted thirty (30) days in which to submit to the court an initial partial filing fee of $38.00. Any objection to this order must be filed on or before the date payment is due. The failure to pay th e fees as required may result in dismissal of this action without prejudice. Within the same thirty-day period, plaintiff is required to show cause why this action should not be dismissed as against defendants Bush and Weis in their official capacit y based on their immunity and due to plaintiff's failure to allege personal participation; and to show cause why this action should not be dismissed in its entirety for failure to exhaust administrative remedies. Plaintiff's motion 3 to appoint counsel is denied without prejudice. Plaintiff's motion 5 for preliminary injunction is denied as moot. Signed by Senior District Judge Sam A. Crow on 03/26/14. (Mailed to pro se party Ricky A. Gadbury by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
RICKY A. GADBURY,
Plaintiff,
v.

CASE NO.

14-3027-SAC

DEAN BUSH, Sheriff,
Ford Co., et al.,
Defendants.
MEMORANDUM AND ORDER
This pro se civil rights complaint was filed pursuant to 42
U.S.C.

§

Facility

1983
(ECF).

by

an

inmate

Plaintiff

of

claims

the

Ellsworth

that

he

is

Correctional
disabled

and

suffered serious injury while temporarily detained at the Ford
County Jail, Dodge City, Kansas (FCJ) due to that facility’s
failure

to

examined

the

provide

a

materials

handicap-accessible
filed,

the

court

shower.

assesses

an

Having
initial

partial filing fee and requires plaintiff to show cause based on
deficiencies

including

his

failure

to

exhaust

administrative

remedies.

FILING FEE
The fees for filing a civil rights complaint in federal
court total $400.00 and consist of the statutory fee of $350.00

1

plus an administrative fee of $50.00 or; for one that is granted
leave

to

proceed

Plaintiff

has

Prepayment

of

in

filed
Fees

forma
a

pauperis

Motion

(Doc.

2)

for
and

the

Leave

fee

to

attached

$350.00.

Proceed

an

Statement in support as statutorily mandated.

is

without

Inmate

Account

Under 28 U.S.C. §

1915(b)(1), a prisoner granted such leave is not relieved of the
obligation to pay the full fee of $350.00 for filing a civil
action.

Instead, being granted such leave merely entitles him

or her to proceed without paying the full fee upfront, and to
pay

the

filing

fee

over

time

through

payments

deducted

automatically from his inmate trust fund account as authorized
by 28 U.S.C. § 1915(b)(2).
Furthermore, § 1915(b)(1) requires the court to assess an
initial partial filing fee of twenty percent of the greater of
the average monthly deposit or average monthly balance in the
prisoner’s account for the six months immediately preceding the
date of filing of the civil action.

Having examined the records

of

finds

plaintiff’s

account,

the

court

the

average

monthly

deposit during the relevant time period has been $ 190.66, and
the

average

monthly

balance

has

been

$

41.70.

The

court

therefore assesses an initial partial filing fee of $ 38.00,
twenty percent of the average monthly deposit rounded to the
lower half dollar.

Plaintiff must pay this initial partial

filing fee before this action may proceed further, and is given
2

time to submit the fee to the court.

His failure to submit the

initial partial fee in the time allotted may result in dismissal
of this action without further notice.

FACTUAL ALLEGATIONS AND CLAIMS
In October 2007, plaintiff committed several offenses in
Ford

County,

Kansas,

including

Rape,

Aggravated

Kidnapping,

Aggravated Criminal Sodomy, Aggravated Intimidation of a Witness
or Victim, and Theft.

He was charged in Case No. 07-CR-539 and

sentenced on February 23, 2012.
As the factual background for his complaint, Mr. Gadbury
alleges as follows.

On or about October 31, 2008, while he was

detained at the Rice County Jail (RCJ), he blacked-out due to
his “blood pressure problem” and severely injured his spine when
he fell onto the cement floor and against a metal stool and
steel

table.

He

was

taken

to

the

hospital,

but

does

not

remember what occurred there and was not given papers regarding
his injuries or diagnosis.

He was placed in a medical isolation

cell at the RCJ and continued to suffer from neck and head pain
as well as difficulty walking.

Dr. Liska, a chiropractor in

Lyons who provided several treatments, informed plaintiff and
the correctional officer accompanying him that plaintiff “had a
spine injury that (Dr. Liska) could not fix.”

Plaintiff was

taken back to FCJ for an MRI in late 2008 or early 2009, and was
3

not shackled or handcuffed due to his injuries and pain.

Thus,

FCJ knew of his injuries.
Plaintiff’s

condition “continued to deteriorate”

blood pressure was not properly controlled.

and his

In April 2009, he

was sent to the ECF where the doctor took x-rays of his back and
spine due to his injury at the RCJ and constant complaints of
back

pain.

The

doctor

“confirmed

a

severe

spine

permanent injury that the MRI” did not show.1

injury,

a

The ECF doctor

prescribed medication for his back and blood pressure, which he
takes “to this day,” and he was given a cane.
events

are

“well

documented”

in

All the foregoing

plaintiff’s

medical

files

maintained by Kansas Department of Corrections (KDOC), which are
sent with plaintiff “anywhere (he) goes.”
On January 27, 2012, plaintiff was transported to the FCJ
“for

court

appearance,”

information (KASPER).

according

to

on-line

KDOC

offender

His medical records were sent with him.

The day of his arrival, he informed an officer that he “had a
disability due to a spinal injury and needed a shower stall . .
. equipped for handicap individuals.”

He was told to use B-1

shower stall, which was not handicap-accessible, and no incident
occurred.

He was returned to the ECF three days later.

1

Generally, a claim of constitutional violation under § 1983 is subject
to a two-year statute of limitations.
It follows that plaintiff may not
recover based upon events that occurred more than two years prior to the date
on which he filed the instant complaint.
Since the complaint was filed on
February 10, 2014, he is barred from recovering for events that occurred
prior to February 10, 2012.

4

On February 23, 2012, plaintiff was again transported to
FCJ

for

resentencing

along

with

his

medical

records.

He

informed “John Doe #1” that he “was disabled with spinal injury”
and

experiencing

severe

back

handicap shower stall.”

pain.

accessories”

“again

requested

a

After booking in, he was allowed to

shower and told to use B-2 stall.
handicap

He

in

or

around

There were “no adequate
this

shower.

Plaintiff

informed “John Doe #2” that the shower was unsafe for him due to
his disabilities and that he had back pain and “needed some
support during (his) showers.”
the

officer

could

do.

He was told there was nothing

Thus,

defendants

plaintiff to use a handicap shower.

refused

to

allow

Plaintiff is unaware if the

FCJ, which he believes was built in 2000, was even equipped with
such a shower.

The door on the shower stall he was directed to

use was “extremely heavy” and took effort for plaintiff to open.
He had to “lean on the door for leverage” in order to get it
open and to stay open.

In doing this, he slipped on the floor,

and the weight of the door knocked him to the ground.
were no grab bars.

There

He tried to use his dominant hand “to brace

the fall” and shattered his wrist.

The weight of the door, no

handrails, no adequate handicap accessories in or around the
shower, and the inadequate floor mats in front of the shower
stall all contributed to the “further injury” of his spine.
“Directly after this” incident, plaintiff was transported to a
5

local

medical

center

where

he

was

treated

for

his

“severe

shattered wrist,” given a cast and pain medicine, and scheduled
to see a specialist as follow-up.2

In a statement attached to

the complaint, Mr. Gadbury alleges that he is not allowed to go
to the yard or gym for exercise, cannot work a prison job, “is
restricted to 10 lbs lifting, no stairs, and bottom bunk,” and
continues to have trouble walking and severe pain that is not
stopped by the medication provided.

He seeks relief based on

“the occurrence that happened on February 23, 2012.”
Mr. Gadbury designates four defendants in his complaint:
Dean Bush, Sheriff FCJ; Chris Weis, Captain FCJ; John Doe #1,
Booking Officer FCJ; and John Doe #2, Booking Movement Officer
FCJ.

Plaintiff names Sheriff Bush and Captain Weis in their

official capacities only and the two John Doe defendants in
their individual capacities only.

Within his complaint, Mr.

Gadbury claims that “Ford County and” Sheriff Bush “along with
Captain”

Weis

were

responsible

for

“this

position” each defendant “holds in office.”

injury

due

to

the

He further claims

that these defendants “are to insure compliance with all State
and

local

as

well

as

Federal

Laws

2

and

Regulations”

and

“to

Plaintiff has attached two personal statements to the complaint in
which he makes many of the same allegations as in his complaint. However, he
also makes additional allegations, such as that at the ECF he was “forced
into” unsafe pods with no handicap facilities” and has fallen there.
In
addition, he complains of a rash on his face and continuing dental problems.
These allegations are not considered further as none of the named defendants
are alleged to have been personally involved in any events at the ECF.
Moreover, any new significant allegations must be presented by way of a
complete Amended Complaint.

6

afford a reasonable safe environment” to the FCJ’s population.
In addition, he claims that they “failed to comply with the
State and Federal Americans with Disability Act.”

Plaintiff

claims that defendants John Doe #1 and John Doe #2 “are liable”
for his injury due to their “total deliberate indifference to
(his)

prior

medical

disability.”

He

alleges

that

the

Doe

defendants were aware of his disability due to his statements to
them, his medical records, and his arrival without shackles and
handcuffs.
Plaintiff

asserts

listed

herein”

rights

under

are

the

that

liable

Eighth

“Ford
for

and

County

and

violating

Fourteenth

all

his

Defendants

constitutional

Amendments

and

for

violating “the ADA” by failing to accommodate a disabled person
by providing a handicap-accessible shower.
that

his

protect

constitutional
him

from

rights

injury

were

while

He further asserts

violated
in

by

custody,

failure

to

deliberate

indifference, reckless negligence, wanton or willful misconduct,
inadequate

training

of

officers,

unsafe

conditions,

inadequate facility for inmates with a disability.

and

Plaintiff

also asserts violation of his rights under “Title II of the ADA,
42 U.S.C. § 12131(1), 42 U.S.C. 12101, et seq., 42 U.S.C. §
12132

(discrimination),

as

well

as

under

28

C.F.R.

35,

130(b)(7), 28 C.F.R. Part 36, Appendix A, and 28 C.F.R. 35.151

7

(pertains to new construction and alterations), Section 504,”
and K.S.A. § 58-1308, and 58-1303, et seq.3
Plaintiff seeks a declaration that the acts and omissions
of defendants violated the ADA and his constitutional rights to
equal

protection

and

due

process

as

well

as

the

Eighth

Amendment’s prohibition against cruel and unusual punishment.
He also seeks a preliminary and permanent injunction ordering
defendants to adhere to the injunction “described herein.”

In

addition, he seeks compensatory damages, and punitive damages
against the John Doe defendants.

SCREENING
Because Mr. Gadbury is a prisoner suing state officials,
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.
1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(B).

28 U.S.C. §

“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
3

Plaintiff includes a section on “Legal Arguments and Authorities” in
his complaint and has filed a legal memorandum in support of his motion for
preliminary injunction.
A pro se litigant is not required to present any
legal authority for his claims, and legal arguments, if any, should be
presented in a separate legal memorandum rather than in the complaint.

8

acting under color of state law.”
48-49

(1988)(citations

West v. Atkins, 487 U.S. 42,

omitted);

Northington

F.2d 1518, 1523 (10th Cir. 1992).
pro

se

complaint

and

applies

Jackson,

973

A court liberally construes a

“less

stringent

formal pleadings drafted by lawyers.”
U.S. 89, 94 (2007).

v.

standards

than

Erickson v. Pardus, 551

In addition, the court accepts all well-

pleaded allegations in the complaint as true. Anderson v. Blake,
469 F.3d 910, 913 (10th Cir. 2006).

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).
additional

factual

allegations

to

The court “will not supply
round

out

a

plaintiff’s

complaint or construct a legal theory on plaintiff’s behalf.”
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).

FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
The first issue presented from the face of the complaint is
whether or not plaintiff exhausted administrative remedies on
his claims before he filed this federal action.
1997e(a) expressly provides:
9

42 U.S.C. §

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 statutory 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 generally

failure to exhaust is an affirmative defense and a plaintiff is
not required to plead it in the complaint, 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).
Furthermore,
prisoner

must

procedures.
v.

Ngo,

548

to

fully

satisfy
comply

the
with

exhaustion
the

requirement,

institution’s

a

grievance

Jones v. Bock, 549 U.S. 199, 218 (2007); Woodford
U.S.

81,

90

(2006);

Little,

607

F.3d

at

1249

(“inmate may only exhaust by properly following all the steps

10

laid out in the prison system’s grievance procedures.”)(citing
id).

“An inmate who begins the grievance process but does not

complete it is barred from pursuing a § 1983 claim . . . .”

Id.

(citing Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.
2002)).
With

respect

following.

to

exhaustion,

plaintiff

alleges

the

On June 25, 2012, he informed Dean Bush of the

incident and “asked for specific information/discovery items to
proceed in legal matters” under the Freedom of Information Act
(FOIA).

He received a letter from Lt. Gordon Willard that “the

additional information will need to be obtained by court.”4
June

29,

2012,

plaintiff

sent

a

letter

to

Sheriff

On
Bush

requesting “all relative procedures regarding grievances” and
“those reports/forms needed to comply with” FCJ’s “rules and
regulations regarding grievances.”

On July 10, 2012, plaintiff

received a letter and copy of Inmate Handbook but no forms.

On

July 23, 2012, and on April 29, 2013, plaintiff sent letters
requesting

grievance

forms.

Based

on

these

allegations,

plaintiff argues that he “tried to exhaust his administrative
remedies with Ford County Jail,” but his efforts were thwarted
when he encountered resistance and deliberate indifference to

4

After this statement in his complaint, plaintiff alleges “(letters sent
as exhibit)”.
However, no letter from Willard or concerning a FOIA request
is attached to the complaint. The same is true of all the other letters that
plaintiff says he submitted as exhibits with regard to exhaustion.

11

his

rights

“from

them.”

He

thus

abandoned

his

efforts

and

requests that he be allowed to proceed with this § 1983 suit.
From plaintiff’s own allegations, it is evident that he did
not

fully

and

properly

exhaust

administrative

remedies.

He

acknowledges that under 42 U.S.C. § 1997e(a) he was required to
exhaust administrative remedies.

He argues that remedies are

not available if prison officials prevent or thwart a prisoner’s
efforts to exhaust.

In addition, he repeats that defendants

were aware of his disability, the incident, and the violations.
These

general

plaintiff’s
remedies.

allegations

acknowledged

are

failure

not
to

sufficient
exhaust

to

excuse

administrative

His having sent multiple requests for grievance forms

does not amount to filing and appealing a grievance.

Plaintiff

does not suggest that forms were available for FCJ grievances or
that FCJ grievances had to be submitted upon forms.

He alleges

that he received an Inmate Handbook, but does not describe the
administrative grievance process presumably

set forth therein

together with facts as to how he was impeded by jail officials
from

pursuing

showing

that

that

process.

his

FOIA

He

also

request

does

not

amounted

allege

to

facts

exhausting

administrative remedies.
From the foregoing, it is clear that plaintiff’s § 1983
complaint

is

subject

to

being

dismissed

without

prejudice

pursuant to 28 U.S.C. §§ 1915A, 1915(e)(2)(B)(ii), and 42 U.S.C.
12

§

1997e(c)(1),

due

to

plaintiff’s

failure

to

administrative remedies prior to filing this action.
is

given

time

to

show

cause

dismissed on this basis.

why

this

action

exhaust
Plaintiff

should

not

be

If he does not show good cause within

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

CLAIMS AGAINST DEFENDANTS BUSH AND WEIS SUBJECT TO DISMISSAL
Plaintiff alleges that he sues defendants Bush and Weis in
their official capacities.

However, “[w]hen a suit alleges a

claim against a state official in his official capacity, the
real party in interest in the case is the state,” and a suit for
damages

against

immunity

under

492F.Supp.2d

the
the

1289,

state

is

Eleventh
1298

generally

Amendment.

(D.Kan.

barred
Strope

2007)(citing

Poppell, 471 F.3d 1155, 1158 (10th Cir. 2006)).

by
v.

sovereign
Collins,

Callahan

v.

It follows that

plaintiff’s damages claims against defendants Bush and Weis, if
any, in their official capacity are subject to dismissal based
upon immunity.
Even
individual

if

plaintiff

capacities,

were
he

suing
also

Bush

fails

and
to

Weis
allege

in

their

personal

participation by either of these defendants in the particular
incident upon which this complaint is based.

13

He may not sue

these defendants based solely upon their supervisory capacity,
as his allegations imply.5
Plaintiff’s

allegations

of

failure

to

train

are

nothing

more than conclusory statements6 that entitle him to no relief.

MOTION FOR PRELIMINARY INJUNCTION
The court has considered plaintiff’s Motion for Preliminary
Injunction (Doc. 5) and Memorandum in Support.

In this motion,

plaintiff seeks a preliminary injunction requiring the FCJ to
cease

“all

operations

that

are

in

violation

of

the

Federal

Rules” regarding accessibility in public buildings to facilities
such

as

restrooms

and

showers.

He

also

asks

the

court

to

require defendant Bush and his agents and employees to adhere to
“established

constitutional

rights”

and

be

brought

into

compliance with state rules and regulations and federal statutes
“to ensure the safety and health of Kansas inmates.”7

Plaintiff

5

Plaintiff mentions “Ford County” a couple times in his complaint as if
the County were a defendant in this action.
However, he did not designate
Ford County as a defendant in either the caption or in his list of
defendants.
Rule 10 of the Federal Rules of Civil Procedure requires that
all defendants be named in the caption.
Moreover, Mr. Gadbury has not
described a particular county policy or alleged any facts showing that the
incident of which he complains was caused by a policy promulgated by Ford
County. At this juncture, Ford County is not a defendant.
6

Furthermore, plaintiff does not allege facts showing that either
defendant Bush or defendant Weis was responsible for the absence of a
handicap-accessible shower in the booking area at the FCJ or for plaintiff’s
being directed to use a particular shower.
7

Plaintiff appears to improperly make discovery requests within his
motion or memorandum.
He must file a separate motion in order to seek a
court order regarding any request for discovery. In addition, he must follow

14

has been transferred from the Ford County Jail to the ECF, a
KDOC institution, for service of his sentence.

It follows that

plaintiff is no longer subject to the conditions at the FCJ of
which he complains.

Plaintiff does not allege facts showing

that he is likely to be subjected to conditions at the FCJ in
the future.

For this reason, the court finds that plaintiff’s

requests for a preliminary injunction in this motion and his
vague request for injunctive relief in his complaint are moot.

MOTION FOR APPOINTMENT OF COUNSEL
The court has considered plaintiff’s Motion for Appointment
of Counsel (Doc. 3) and denies this motion, without prejudice.
There is no constitutional right to appointment of counsel in a
civil case.

Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir.

1989); Carper v. Deland, 54 F.3d 613, 616 (10th Cir. 1995).
decision

whether

to

appoint

counsel

within the discretion of the court.
994, 996 (10th Cir. 1991).

in

a

civil

matter

The
lies

Williams v. Meese, 926 F.2d

“The burden is on the applicant to

convince the court that there is sufficient merit to his claim
to warrant the appointment of counsel.”
F.3d

1218,

Beecham

1223

Corp.,

(10th

393

Cir.

F.3d

Steffey v. Orman, 461

2006)(citing

1111,

1115

Hill

(10th

v.

Cir.

SmithKline
2004).

In

the Federal Rules of Civil Procedure that govern discovery, and any discovery
request at this juncture is premature.
No action will be taken on these
imbedded, vague requests.

15

deciding whether to appoint counsel, the district court should
consider “the merits of the prisoner’s claims, the nature and
complexity of the factual and legal issues, and the prisoner’s
ability

to

investigate

the

facts

and

present

Rucks, 57 F.3d at 979; Hill, 393 F.3d at 1115.

his

claims.”

Considering the

above factors, the Court concludes in this case that (1) it is
not

clear

at

this

juncture

that

plaintiff

has

exhausted

administrative remedies; (2) the issues are not complex; and (3)
plaintiff

appears

arguments.

capable

of

adequately

presenting

facts

and

Accordingly, the Court denies plaintiff’s motion for

appointed

counsel

screening

and

it

at

this

becomes

juncture.
apparent

If

that

the

case

appointed

survives

counsel

is

necessary, plaintiff may renew this motion.
IT IS THEREFORE ORDERED that plaintiff is granted thirty
(30) days in which to submit to the court an initial partial
filing fee of $ 38.00.

Any objection to this order must be

filed on or before the date payment is due.

The failure to pay

the fees as required may result in dismissal of this action
without prejudice.
IT
period

IS

FURTHER

plaintiff

is

ORDERED

that

required

to

within
show

the

cause

same
why

thirty-day
this

action

should not be dismissed as against defendants Bush and Weis in
their

official

plaintiff’s

capacity

failure

to

based
allege

on

their

personal
16

immunity

and

due

to

participation;

and

to

show

cause

why

this

action

should

not

be

dismissed

in

its

entirety for failure to exhaust administrative remedies.
IT IS FURTHER ORDERED that plaintiff’s Motion to Appoint
Counsel (Doc. 3) is denied without prejudice, and plaintiff’s
Motion for Preliminary Injunction (Doc. 5) is denied as moot.
IT IS SO ORDERED.
Dated this 26th day of March, 2014, at Topeka, Kansas.

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

17