Griffin v. Easter et al

Filing 8

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 3 to proceed without prepayment of fees is granted; and his motion 4 to appoint counsel is denied without prejudice. Plaintiff's request for release and his claim against the unnamed &q uot;Sedgwick County Clinical Therapist" is denied without prejudice. Plaintiff is granted thirty (30) days in which to show good cause why this action should not be dismissed. Signed by Senior District Judge Sam A. Crow on 03/10/15. 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 a Kansas inmate.

The court examined the materials

filed and issued a Memorandum and Order in which plaintiff was
required to pay an initial partial filing fee and to show cause
why

this

therein.

action

should

not

be

dismissed

for

reasons

stated

Plaintiff has paid the partial fee, and his motion to

proceed without prepayment of fees shall be granted.1

The matter

is before the court upon plaintiff’s Amended Complaint (Doc. 7).

I.

ALLEGATIONS AND CLAIMS

1

Plaintiff is reminded that he remains obligated pay the remainder of
the $350.00 filing fee in installments.
28 U.S.C. § 1915(b)(1).
Thus, in
each month that the amount in the prisoner’s account exceeds $10.00, until
the $350.00 filing fee is paid, the agency having custody of the prisoner
shall assess, deduct from the prisoner’s account, and forward to the Clerk of
the Court an installment payment equal to 20% of the preceding month’s income
credited to the prisoner’s account. 28 U.S.C. § 1915(b)(2).
1

In

his

original

complaint,

following factual background.
detention

at

the

Sedgwick

Mr.

Griffin

alleged

the

On September 25, 2012, during his
County

Detention

Center,

Wichita,

Kansas (SCDC) he fell due to a wet floor and sustained serious
injuries.

He

was

taken

to

the

clinic

for

an

“intense

evaluation” and found to be “suffering severe medical issues”
including that his “neck was out of joint” due to the fall.

The

examining

and

nurse

at

the

SCDC

prescribed

referred Mr. Griffin to a specialist.
“under

strict

plaintiff

medical

was

inconclusive.”

monitoring.”

given
Two

x-rays,

weeks

a

collar

He returned to his pod
On

September

which

later,

neck

he

was

were

27,

2012,

“considered

transported

to

his

personal physician 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

impact.”

to

the

fall

which

crushed

those

bones

from

the

The recommended surgery was conducted.

Thereafter plaintiff sustained injury at the SCDC when the
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.

Mr.

Griffin

was

again
2

transported

to

his

personal

physician, 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.”

This prescribed

surgery was performed.
In his Amended Complaint, Mr. Griffin does not repeat many
of the foregoing facts, and instead begins his factual statement
by merely recounting that on September 25, 2012, at the SCDC he
injured

his

neck

when

he

slipped

and

fell.

In

addition,

plaintiff does not assert all the claims that he did in his
original complaint.2
in

plaintiff’s

All facts and claims that are not alleged

Amended

Complaint

are

no

longer

before

this

court.
As Count I in his Amended Complaint, plaintiff claims that
he

was

never

provided

the

therapy

that

was

ordered

by

his

surgeon and instead was sent to KDOC “within a week of major
surgery”

on

his

neck.

Records

available

on-line

regarding

Kansas Department of Corrections (KDOC) offenders, show that Mr.
Griffin was committed to KDOC custody on August 5, 2013; and was
transferred to the Hutchinson Correctional Facility, Hutchinson,
2

In his original complaint, Mr. Griffin alleged that defendants acted
maliciously, sadistically, and with deliberate indifference and “possibly
discrimination;” 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;” and violated the prohibition against cruel and unusual
punishment as well as due process, equal protection, and the privileges and
immunities clause. In addition, he claimed medical malpractice, negligence,
and violation of Kansas Tort Laws.
3

Kansas (HCF), on February 24, 2014.3

As “supporting facts” for

this Count, plaintiff alleges as follows.

In July 2013, he was

released from the hospital and picked up by “the sheriff” who
took him to the SCDC “without his neck brace, which was taken
from (his) cell and never returned.”

He was placed in a cell

with an “uncomfortable mattress” that was 1¾ inches thick, which
sat upon an iron bunk.

He was unable to stand or walk more than

15 feet at a time, had an open wound on the back of his neck,
and was forced to deal with pain without medication.
left

to

hold

up

his

head

conditions as best he could.

himself

and

deal

with

He was
the

cell

Now, he cannot walk, bend, turn

his head, or use the bathroom without pain and discomfort and
never has a restful night’s sleep.
his right side.

He has 70% nerve damage to

He is now handicapped and disabled because “no

one took the time to rehab (him) back to walking and moving
around like normal.”
As Count II of his Amended Complaint, plaintiff claims that
Karen

Powell,

Assistant

County

Counselor,

“failed

to

fairly

investigate this matter and gather adequate information.”
supporting facts, he alleges the following.

As

Powell failed to

interview him as to what happened, how it happened, and his
condition.

3

Powell failed to see that he was taken care of “in

His earliest possible release date is September 1, 2016.
4

the damages in all ways a simple settlement to adequately” ease
his pains for the rest of his disabled life “with open medical
care to help” him.

He adds that his spinal damage is the same

as that of Christopher Reeves, and that he cannot control his
movement, write, or remember how to spell simple words.
As Count III in his Amended Complaint, plaintiff claims
that the “Sedgwick County Clinical Therapist” performed physical
therapy upon him in a manner that injured him.

In support, he

alleges that the therapist pulled and twisted his joints that
were fused together in a very unprofessional manner, which left
him in pain and with left-side paralysis4 in his shoulder and arm
and that ultimately led to a second surgery, which left him
unable to turn his head more than 20% of the way.
Plaintiff seeks damages in the amount of $3,500,000.

He

also seeks release to get back and forth to this court on this
case and to get the therapy he needs.5

II.

SCREENING
The

court is required by statute to screen

the Amended

Complaint and to dismiss the complaint or any portion thereof
that is frivolous, fails to state a claim on which relief may be
4

As noted, in his original complaint, Mr. Griffin alleged that this
paralysis lasted 8 days.
5

Plaintiff does not allege facts entitling him
particular time, and this claim for relief is denied.
5

to

release

at

any

granted,

or

relief.

seeks
28

relief

U.S.C.

from

§

a

defendant

1915A(a)

and

immune

(b);

28

from

such

U.S.C.

§

1915(e)(2)(B).

III.

LEGAL STANDARDS
Plaintiff was previously informed of the standards under

which his complaint must be reviewed by this court.
liberally

construes

a

pro

se

complaint

and

A court

applies

“less

stringent standards than formal pleadings drafted by lawyers.”
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.”
F.2d

1106,

1110

(10th

Cir.

1991);

Hall v. Bellmon, 935

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.”).

To

avoid

dismissal,

the

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

Twombly, 550 U.S. at

“[W]hen the allegations in a complaint, however true,

could not raise a claim of entitlement to relief,” dismissal is
6

appropriate.

Twombly, 550 U.S. at 558.

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.”
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
The Eighth Amendment guarantees a prisoner the right to be
free from cruel and unusual punishments.

The United States

Supreme Court has held that an inmate advancing a claim of cruel
and unusual punishment based on denial of necessary medical care
must

establish

needs.”
County

“deliberate

indifference

to

serious

medical

Estelle v. Gamble, 429 U.S. 97, 106 (1976); Boyett v.
of

Washington,

282

Fed.Appx.

667,

672

(10th

Cir.

2008)(citing Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005)).
The “deliberate indifference” standard has two components: “an
objective component requiring that the . . . 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).

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
7

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); Martinez, 430 F.3d at 1304 (quoting Farmer,
511 U.S. at 834 (quotation omitted)).

“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)).

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)).
A delay in providing medical treatment does not violate the
Eighth Amendment, unless there has been deliberate indifference
resulting in substantial harm.
(10th Cir. 1993).
delayed

rather

Olson v. Stotts, 9 F.3d 1475

Therefore, in situations where treatment was
than

denied

altogether,

the

Tenth

Circuit

requires a showing that the inmate suffered “substantial harm”
as a result of the delay.

Garrett v. Stratman, 254 F.3d 946,

950 (10th Cir. 2001); Kikumura v. Osagie, 461 F.3d 1269, 1292
(10th Cir. 2006).
8

IV.

DISCUSSION
Plaintiff’s Amended Complaint is based upon four distinct,

alleged

incidents:

(1)

the

denial

of

therapy

and

rehab

prescribed by his surgeon; (2) unconstitutional cell conditions;
(3) failure of the County Counselor to investigate plaintiff’s
injuries and medical condition and see that he was adequately
compensated;

and

(4)

unprofessional

physical

therapy.

The

Amended Complaint is deficient in several ways.
A.

Failure to State a Claim

Against

Defendant Sheriff

Easter
The

Amended

Complaint

defendant

Sheriff

Easter

fails

because

to

state

plaintiff

a

claim

does

not

against
allege

sufficient facts showing the personal participation of Sheriff
Easter

in

“[P]ersonal

the

incidents

participation

upon

which

in

the

the

complaint

specific

violation complained of is essential.”

is

based.

constitutional

Henry v. Storey, 658

F.3d 1235, 1241 (10th Cir. 2011)(citation omitted); see Pahls v.
Thomas, 718 F.3d 1210, 1231 (10th Cir. 2013)(“Liability under §
1983 . . . requires personal involvement.”).

Plaintiff states

no facts describing direct personal participation on the part of
Sheriff Easter in the alleged denial of prescribed therapy or
“rehab,” or in the creation or maintenance of the particular
cell

conditions

of

which

plaintiff
9

complains.

Furthermore,

Sheriff Easter is not the County Counselor whose investigation
is

challenged

or

the

physical

therapist

whose

therapy

is

Easter

are

criticized.
The

only

plaintiff’s
Sedgwick

allegations

general

County

operation.”

made

references

Jail

However,

and
a

his

as
to

to

defendant

Easter’s

oversight

supervisory

of

“running
its

official

“day

cannot

of”

the

to

day

be

held

liable based solely upon a theory of respondeat superior.

See

Stewart v. Beach, 701 F.3d 1322, 1328 (10th Cir. 2012).

Nor

does plaintiff describe any policy or custom at the SCDC that
was implemented or actively endorsed by defendant Easter and
then explain how that custom caused the alleged constitutional
deprivations.

Even if plaintiff showed participation on the

part of defendant Easter, he alleges no facts whatsoever to
suggest that defendant Easter acted with the requisite culpable
state of mind.
showing

defendant

incidents
state

Id.

of

of

which

mind,

Unless plaintiff alleges additional facts
Easter’s

personal

plaintiff

complains

this

action

must

be

participation
and

Easter’s

dismissed

as

in

the

culpable
against

defendant Easter.
B.

Failure to State a Federal Constitutional Claim Against

Defendant Powell

10

Plaintiff alleges that defendant Powell “failed to fairly
investigate”

and

slip-and-fall

“gather

adequate

incident.6

information”

However,

regarding

plaintiff’s

the

allegations

against defendant Powell were found to be conclusory and to fail
to state a federal constitutional claim in the court’s prior
Memorandum

and

Order.

Mr.

Griffin

offers

no

additional

allegations in his Amended Complaint to cure these deficiencies.
He

complains

investigation

that
he

due

was

not

to

defendant
given

a

Powell’s

“simple

inadequate

settlement

adequately” ease his pains for the rest of his life.

to

However,

he does not allege that defendant Powell was involved in the
alleged denial of therapy or rehab, the alleged unconstitutional
conditions in his cell, or the injurious physical therapy.

Nor

has he alleged facts showing defendant Powell’s culpable state
of mind.
personal

Unless plaintiff alleges additional facts showing the
participation

of

defendant

Powell

in

the

alleged

violations of his constitutional rights, this action must be
dismissed as against defendant Powell.

6

In his original complaint, plaintiff alleged that defendant Powell was
biased in her findings toward defending Sheriff Easter, obstructed courts
from knowing the true nature of plaintiff’s injuries, was negligent and
deceptive, and “falsely reported” that plaintiff’s injuries were “from other
sources” rather than his fall at the SCDC.
He does not repeat those
allegations in his Amended Complaint, and they are no longer before the
court.
Nor should they be for the reasons stated in the court’s prior
Memorandum and Order.
11

C.

Failure to State Facts to Support Constitutional Claim of

Denial of Medical Treatment
In his original complaint, plaintiff sought damages mainly
as compensation for injuries he allegedly sustained in a slipand-fall incident at the SCDC.
order,

the

court

set

However, in its first screening

forth

authorities

indicating

that

allegations of a slip-and-fall incident are simply insufficient
to state claim under the Eighth Amendment.

The court further

found that plaintiff was alleging, at most, that SCDC personnel
were negligent in their duty to protect him from hazardous wet
floor conditions.
court

found

Based on the relevant legal authority, the

that

plaintiff

constitutional claim.

failed

to

state

a

federal

In his Amended Complaint, plaintiff has

changed his claim to an assertion of denial of necessary medical
treatment.
In its first Memorandum and Order, the court found that Mr.
Griffin

had

violated
treatment

not

the

Eighth

for

allegations

plainly

his

asserted

Amendment

injuries

indicated

he

that

by

and,

in

received

the

denying
any

named

defendants

necessary

event,

immediate

medical

that
and

his

own

extensive

attention and treatment for his injuries, including visits to
his personal physician, two MRIs, and two surgeries.
expressly

noted

that

plaintiff’s
12

“bald

allegation

The court
in

closing

that prescribed therapy was not provided by defendants or DOC
was not supported by facts.”
10.

Memorandum and Order (Doc. 6) at

The court specifically stated that plaintiff “does not

identify what therapy was prescribed” and “what person denied
him therapy” and “does not provide dates or location.”

Id.

Thus, Mr. Griffin was notified that conclusory allegations of
denial of therapy prescribed by his surgeon were not sufficient
to state a claim.
Despite the court’s rulings and directions, in his Amended
Complaint

Mr.

Griffin

essential facts.
therapy

and

transferred

a

fails

to

provide

the

missing

He appears to complain that he was denied

rehab
to

again

for
KDOC

a

week

prison.

at

the

However,

SCDC
as

and
he

was

was

then

further

informed in the court’s prior Memorandum and Order, he “may not
sue the named defendants who are Sedgwick County employees for
the alleged denial of therapy in a KDOC institution.”

Even if

plaintiff had named as defendant the person or persons actually
responsible

for

failing

to

provide

him

with

the

prescribed

therapy and rehab during his last week at the SCDC, this claim
would be subject to dismissal for failure to state an Eighth
Amendment violation.

This is because the complaint appears to

allege a mere week’s delay in treatment which fails, without
more, to state a federal constitutional violation.
13

If plaintiff is attempting to add a claim that after he was
transferred out of the SCDC, he was denied surgeon-prescribed
rehab and therapy at the HCF, he may not proceed on that claim
against the defendants named in his Amended Complaint.

Instead,

the proper defendants for such a claim would be the person or
persons

at

the

HCF

from

whom

Mr.

Griffin

sought

treatment based upon his surgeon’s prescription.
claim

against

their

names

the

proper

together

defendants,

with

the

dates

plaintiff
and

medical

To state a
must

location

provide

and

other

underlying circumstances of his requests for treatment at the
HCF.
Plaintiff is given one more opportunity to state additional
facts to support an Eighth Amendment denial of medical treatment
claim.

If he continues to fail to provide sufficient facts to

support such a claim against the named defendants and does not
name

proper

defendants,

then

this

action

will

be

dismissed

without further notice.
D.

Failure to State Claim against “Sedgwick County Physical

Therapist”
Plaintiff alleged in his original complaint and repeats in
Count III of his Amended Complaint that he was injured at the
SCDC by a therapist that provided him with physical therapy.
However, plaintiff does not name the therapist as a defendant in
14

the caption of his Amended Complaint, and this is cause for
dismissal of the action against this defendant.

In his original

complaint he named “Sedgwick County Clinical Therapist” as a
defendant in the caption of the complaint

and discussed

the

alleged actions of this defendant in the body of the complaint.
Without

this

defendant,

his

claim

of

injury

from

physical

therapy must be dismissed because defendants Easter and Powell
did not participate in the physical therapy and cannot be held
liable

for

the

acts

of

the

therapist.

Plaintiff

could

be

provided with the opportunity to add this therapist as a John
Doe defendant.

However, the court finds that giving Mr. Griffin

such an opportunity would be futile because his claim that he
was injured by unprofessional treatment by a physical therapist
is subject to dismissal for an additional reason.

As plaintiff

was informed in the court’s prior Memorandum and Order, claims
under

§

1983

may

not

be

predicated

upon

negligence.

Thus,

plaintiff’s claim of negligence on the part of the therapist at
the

SCDC,

accepted

as

constitutional violation.

true,

fails

to

evince

a

federal

The remedy for plaintiff’s claim that

he was injured by negligent physical therapy is a lawsuit in
state,

rather

than

federal,

court.

Accordingly,

plaintiff’s

claim of negligent physical therapy on the part of the unnamed
“Sedgwick County Physical Therapist” is dismissed.
15

V.

PLAINTIFF ORDERED TO SHOW CAUSE
The court has considered plaintiff’s substantially-altered

claims in his Amended Complaint and gives him one more chance to
show

cause

reasons

why

stated

this

action

herein,

should

including

against the named defendants.
fails

to

show

good

cause

not

be

failure

dismissed
to

state

for
a

the

claim

Plaintiff is warned that if he

and

cure

the

deficiencies

in

his

Amended Complaint within the prescribed time, this action may be
dismissed without further notice.

VI.

MOTION TO APPOINT COUNSEL
The court has considered plaintiff’s Motion to Appoint

Counsel (Doc. 4) and finds that it should be denied.

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).

The

decision whether to appoint counsel in a civil matter lies in
the discretion of the district court.
F.2d 994, 996 (10th Cir. 1991).

Williams v. Meese, 926

“The burden is on the applicant

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

Steffey v. Orman,

461 F.3d 1218, 1223 (10th Cir. 2006)(citing Hill v. SmithKline
16

Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004)).

It is not

enough “that having counsel appointed would have assisted [the
prisoner] in presenting his strongest possible case, [as] the
same could be said in any case.”

Steffey, 461 F.3d at 1223

(citing Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995).
In

deciding

whether

to

appoint

counsel,

the

district

court

should consider “the merits of the prisoner’s claims, the nature
and

complexity

of

prisoner’s

ability

claims.”

Rucks,

the
to
57

factual

and

investigate
F.3d

at

legal

the

979;

issues,

facts

Hill,

393

the

present

and

and

his

F.3d

at

1115.

Considering the above factors, the Court concludes in this case
that (1) it is not clear at this juncture that plaintiff has
asserted a colorable claim; (2) the issues are not complex; and
(3) plaintiff appears capable of adequately presenting facts,
which

is

all

that

is

required

of

the

pro

se

plaintiff.

Accordingly, the Court denies plaintiff=s motion for appointed
counsel

at

this

prejudice.

juncture.

However,

this

denial

is

without

Thus, if this case progresses past screening and it

becomes apparent that counsel is necessary, plaintiff may renew
this motion.
IT
Motion

IS
to

THEREFORE
Proceed

BY

THE

without

COURT

ORDERED

Prepayment

17

of

that

Fees

plaintiff’s

(Doc.

3)

is

granted; and his Motion to Appoint Counsel (Doc. 4) is denied,
without prejudice.
IT IS FURTHER ORDERED that plaintiff’s request for release
and

his

claim

against

the

unnamed

“Sedgwick

County

Clinical

Therapist” is denied, without prejudice.
IT IS FURTHER ORDERED that plaintiff is granted thirty (30)
days in which to show good cause why this action should not be
dismissed for the reasons stated herein.
IT IS SO ORDERED.
Dated this 10th day of March, 2015, at Topeka, Kansas.

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

18