Griffin v. Easter et al

Filing 6

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted thirty (30) days in which to submit to the court an initial partial filing fee of $5.00. Any objection to this order must be filed on or before the date payment is due. The failure to pay the fees as required herein may result in dismissal of this action without prejudice. Within the same thirty-day period, plaintiff is required to submit his complaint upon court-approved forms and to show cause why this action should not be dismissed. Signed by Senior District Judge Sam A. Crow on 04/15/14. (Mailed to pro se party Anthony Griffin by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ANTHONY GRIFFIN,
Plaintiff,
v.

CASE NO.

14-3043-SAC

JEFF EASTER, Sheriff,
Sedgwick 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 currently confined at the Hutchinson Correctional
Facility, Hutchinson, Kansas.

Having considered the materials

filed, the court finds as follows.

FILING FEE
The fee for filing a civil complaint in federal court 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 without prepayment
the fee is $350.00.

Plaintiff has filed a Motion for Leave to Proceed

without Prepayment of Fees (Doc. 3) and has attached an Inmate Account
Statement in support as statutorily mandated.

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.
1

Instead, being granted such leave merely entitles him 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 deposits 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 plaintiff’s

account, the court finds the average monthly deposit during the
relevant time period was $ 26.19, and the average monthly balance
was $ 4.09.

The court therefore assesses an initial partial filing

fee of $ 5.00, twenty percent of the average monthly deposit rounded
to the lower half dollar.

Plaintiff is given time to submit the part

fee to the court and warned that his failure to comply within the
prescribed time may result in dismissal of this action without
further notice.

COMPLAINT NOT ON FORMS
D.Kan. Rule 9.1(a) requires that a civil rights complaint be
on forms approved by the court.
on forms.

The complaint in this action is not

Plaintiff is required to submit his complaint upon the

appropriate forms and to present all his claims and allegations
therein.

He must answer all applicable questions on the forms and

may not simply refer to his non-complying initial pleading.
2

ALLEGATIONS AND CLAIMS
As the factual background for his complaint, Mr. Griffin alleges
as follows.

On September 25, 2012, during his detention at the

Sedgwick County Adult Detention Center, Wichita, Kansas (SCADC) he
fell due to a wet floor and sustained serious injuries.

At the time,

two “unsupervised trustees were mopping water from the floor with
towels.”

There was no sign warning of the wet floor, and no verbal

warning was given to plaintiff.

Nurse Kaitlin witnessed the fall,

advised plaintiff to remain calm, and helped him to his feet.
Plaintiff was called to the clinic for an “intense evaluation.”
Another nurse did the initial screening and discovered that plaintiff
“was suffering severe medical issues” including that his “neck was
out of joint” due to the fall.

The nurse ordered plaintiff sent to

a specialist and prescribed a neck collar.
“under strict medical monitoring.”

He returned to his pod

On September 27, 2012, plaintiff

was given x-rays, which were “considered inconclusive” due to the
intense swelling inside his neck.

Two weeks later, plaintiff was

transported to his own personal doctor, Dr. Moufarrij, who determined
that plaintiff needed an MRI.

Dr. Moufarrij analyzed the MRI results

and determined that plaintiff’s “C-4, C-5, C-6 and C-7 needed to be
fused due to the fall which crushed those bones from the impact.”
Recommended surgery was conducted.
Plaintiff then sustained another injury at the SCADC when the
3

Clinical Therapist, whose name is unknown, acted negligently and
without proper training in that he “roughly pulled” plaintiff’s neck
during a session causing it to “snap,” which resulted in paralysis
to plaintiff’s left side, arm and upper body for 8 days.

Plaintiff

was again transported to his personal doctor, who performed an MRI
and CT and determined that a second surgery was necessary for
“spinenoisis and Laminectomy for 3 through 6 due to the disc were
damaged.”
The

The doctor noted that the injuries could have been fatal.

prescribed

surgery

was

performed.

Plaintiff

was

transported to the Kansas Department of Corrections (KDOC).

later
None

of the therapy that defendants were ordered to provide has been
provided by defendants or the KDOC.
Defendant Karen Powell, Assistant County Counselor, failed to
fairly

investigate

information.

this

matter

and

did

not

obtain

adequate

She was biased in her findings toward defending

Sheriff Easter and obstructed courts from knowing the true nature
of plaintiff’s injuries.

Powell was negligent and deceptive and she

“falsely reported” that plaintiff’s injuries were “from other
sources” rather than his fall at the SCADC.
Plaintiff names as defendants Sheriff Jeff Easter, SCADC;
Assistant County Counselor Karen Powell, “Sedgwick County Clinical
Therapist,” and “any” unnamed John or Jane Does.
defendants

acted

maliciously,

sadistically,

indifference and “possibly discrimination.”
4

He alleges that
with

deliberate

He further alleges

that defendants failed “to take action against the Tort Action
Claim,” failed to “curb the pattern of abuse” and protect plaintiff
from “arbitrary governmental suppression,” delayed due process, and
“refus(ed) to fix the matter in a just way.”
Plaintiff asserts the following constitutional violations:
cruel and unusual punishment in violation of the Eighth and
Fourteenth Amendments, violation of due process, violation of equal
protection, and violation of the privileges and immunities clause.
In

addition,

he

claims

medical

violation of Kansas Tort Laws.

malpractice,

negligence,

and

Plaintiff seeks compensatory,

exemplary, and punitive damages, each in the amount of $3,500,000.

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

relief.

STANDARDS
A court liberally construes a pro se complaint and applies “less
stringent standards than formal pleadings drafted by lawyers.”

1
Plaintiff has sent “proof” to the Clerk that he sent “Notice to the
defendants” of this action. However, service upon defendants will only be ordered
by the court if the complaint survives screening.

5

Erickson v. Pardus, 551 U.S. 89, 94 (2007).

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).

On the other

hand, a pro se litigant’s “conclusory allegations without supporting
factual averments are insufficient to state a claim upon which relief
can be based.”

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991);

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)(The
complaint must offer “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action.”).

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.”
1997).

Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.
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.

“[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 Eighth Amendment provides prisoners the right to be free
from cruel and unusual punishments.

The correct standard for an

Eighth Amendment conditions-of-confinement claim requires a knowing
disregard of “excessive risk to inmate health or safety.”

Farmer

v. Brennan, 511 U.S. 825, 837 (1994); Garrett v. Stratman, 254 F.3d
946, 949 (10th Cir. 2001).

Furthermore, the condition must deprive

the inmate of “the minimal civilized measure of life’s necessities,”
6

and the official involved must have a “sufficiently culpable state
of mind” amounting to “deliberate indifference”2 to a “substantial
risk of serious harm to an inmate.”

Barney v. Pulsipher, 143 F.3d

1299, 1310 (10th Cir. 1998)(internal quotations omitted).

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)(quotation omitted)).
In the medical care context, the plaintiff must likewise show
“a sufficiently culpable state of mind” amounting to deliberate
indifference along with the presence of a “serious medical need,”
that is, “a serious illness or injury.”
105.

Estelle, 429 U.S. at 104,

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).
With respect to slip and fall cases in particular, the Tenth
Circuit has reasoned as follows:
2
The deliberate indifference standard includes both an objective and
subjective component. Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir. 2005).
In the objective analysis, a prisoner must show from objective facts that he or
she was “incarcerated under conditions posing a substantial risk of serious harm.”
Farmer v. Brennan, 511 U.S. 825, 834 (1994). “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 (10th Cir. 2000)(quotation omitted)).

7

Slippery shower floors constitute a daily risk faced by
the public at large. Cases from other jurisdictions have
held that slippery floors do not violate the Eighth
Amendment. See, e.g., LeMaire v. Maass, 12 F.3d 1444, 1457
(9th Cir. 1993)(“slippery prison floors . . . do not state
even an arguable claim for cruel and unusual punishment”)
(quoting Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir.
1989)); Denz v. Clearfield County, 712 F.Supp. 65, 66
(W.D.Pa. 1989)(slippery cell from humidity); Robinson v.
Cuyler, 511 F.Supp. 161, 163 (E.D.Pa. 1981)(slippery
kitchen floor); Tunstall v. Rowe, 478 F.Supp. 87, 89
(N.D.Ill.1979) (greasy stairway); Snyder v. Blankenship,
473 F.Supp. 1208, 1212 (W.D.Va. 1979)(pool of soapy water
from leaking dishwasher). Mr. Flandro seeks to meet the
excessive risk or substantial risk standard on a
result-oriented basis, that is, he has alleged a serious
injury so he maintains the condition must be serious.
However, a serious injury by itself does not necessarily
render a condition excessively or even substantially
risky. Because a soapy shower floor does not constitute
an excessive or substantial risk nor deprive an inmate of
the minimal civilized measure of life’s necessities, we
agree with the district court that Mr. Flandro has failed
to state a constitutional claim.
Flandro v. Salt Lake County Jail, 53 Fed.Appx. 499, 500-01 (10th Cir.
2002).

Applying the foregoing standards, the court finds that the

facts alleged by plaintiff, taken as true, fail to state a federal
constitutional claim.

FAILURE TO STATE CLAIM OF CRUEL AND UNUSUAL PUNISHMENT
Mr. James bases his Eighth Amendment claim in this case upon
allegations that he suffered serious injury when he fell upon a wet
floor at the jail.

However, allegations of a slip and fall are simply

insufficient to state claim under the Eighth Amendment.

See

Reynolds v. Powell, 370 F.3d 1028, 1031 (10th Cir. 2004)(“Simply put,

8

“[a] ‘slip and fall,’ without more, does not amount to cruel and
unusual punishment. . . .”).

A wet floor in the detention center

that was being mopped is not shown to have amounted to an excessive
or substantial risk to plaintiff or to have deprived him of the
minimal civilized measure of life’s necessities.

At most, Mr. James

is alleging that SCADC personnel were negligent in their duty to
protect him from hazardous conditions.
be predicated on negligence.

Claims under § 1983 may not

See Daniels v. Williams, 474 U.S. 327,

330 (1986)(holding that inmate who slipped on a pillow negligently
left

on

a

stairway

by

sheriff’s

deputy

failed

to

allege

a

constitutional violation); see also Medina v. City and County of
Denver, 960 F .2d 1493, 1500 (10th Cir. 1992)(“negligence and gross
negligence

do

not

give

rise

to

section

1983

liability”).

Accordingly, even accepting plaintiff’s allegations regarding the
slip and fall incident as true, the court finds that plaintiff fails
to state a federal constitutional claim.
Furthermore, plaintiff has alleged no facts to show that any
identified defendant directly caused the floor to be wet or was aware
that the wet floor presented a substantial risk of serious harm to
plaintiff, but ignored that risk.3

Thus, plaintiff has failed to

allege facts showing that any defendant acted with the requisite
3
Plaintiff purports to name John and Jane Doe defendants, but only to the
extent that other potential defendants may become known to him in the future. He
does not adequately state a claim against a John or Jane Doe by describing that
person’s involvement in the alleged incident in his complaint. Nor does he provide
any information to allow for service upon a Doe defendant.

9

culpable state of mind.
Plaintiff’s claim that the defendant therapist at the SCADC
injured him while providing therapy likewise appears to be nothing
more than a negligence claim.
Mr. James has not plainly asserted that defendants violated the
Eighth Amendment by denying necessary medical treatment for his
injuries.

However, even if he had, his allegations are clearly not

sufficient to support such a claim.

Many of his factual allegations

indicate to the contrary that he received immediate and extensive
attention and treatment for his injuries, including visits to his
personal

physician,

two

MRIs,

and

two

surgeries.

His

bald

allegation in closing that prescribed therapy was not provided by
defendants or DOC is not supported by facts.

He does not identify

what therapy was prescribed, what person denied him therapy, and does
not provide dates or location.4

FAILURE TO STATE FACTS TO SUPPORT OTHER CONSTITUTIONAL VIOLATIONS
Plaintiff’s assertions of violation of due process, violation
of equal protection, and violation of the privileges and immunities
clause are nothing more than conclusory statements.

No facts

whatsoever are alleged to support any of these assertions.

As noted,

conclusory allegations without supporting factual averments are
insufficient to state a claim upon which relief can be based.
4
Plaintiff may not sue the named defendants who are Sedgwick County employees
for the alleged denial of therapy in a KDOC institution.

10

Plaintiff’s claim that defendant Assistant County Counselor Powell
performed a negligent and biased investigation regarding the slip
and fall incident also fails to evince a federal constitutional
violation and is not supported by adequate facts.5

STATE LAW CLAIMS NOT COGNIZABLE IN FEDERAL COURT
In

addition

to

his

constitutional

claims,

plaintiff

is

apparently attempting to litigate state law claims in federal court
including a negligence claim under the KTCA.6

Mr. James suggests no

theory under which the federal court would have jurisdiction over
his state law claims. 7

His allegations of medical malpractice,

negligence, and violation of “Kansas Tort Laws” are all matters of
state law that are not grounds for relief in federal court under §
1983.

PLAINTIFF ORDERED TO SHOW CAUSE
Plaintiff is required to show cause why this action should not
be dismissed for the foregoing reasons.

If he fails to show good

5
If plaintiff is attempting to assert that defendant Powell denied due process
in connection with his KTCA claim, he does allege sufficient facts regarding those
proceedings to indicate either what process was due, or what elements of due process
were improperly denied.
6
If plaintiff is seeking review of a denial of a claim under the KTCA, he
does not suggest a theory under which this court has jurisdiction.
7
Mr. James does not assert pendent jurisdiction. In any event, this court
does not have pendent jurisdiction over state law claims when the complaint fails
to state a federal constitutional claim.

11

cause or cure the deficiencies in his complaint or to comply with
the court’s other orders within the prescribed time, this action may
be dismissed without further notice.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff is granted
thirty (30) days in which to submit to the court an initial partial
filing fee of $ 5.00.

Any objection to this order must be filed on

or before the date payment is due.

The failure to pay the fees as

required herein may result in dismissal of this action without
prejudice.
IT IS FURTHER ORDERED that within the same thirty-day period
plaintiff is required to submit his complaint upon court-approved
forms and to show cause why this action should not be dismissed for
the reasons stated herein including failure to state a federal
constitutional claim.
The clerk is directed to send plaintiff 1983 forms.
IT IS SO ORDERED.
Dated this 15th day of April, 2014, at Topeka, Kansas.

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

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