Johnson v. Sale et al

Filing 4

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted thirty (30) days in which to provide the financial information required by federal law to support his motion to proceed without prepayment of fees. Within the same thirty-day period, plaintiff is r equired to show cause why this action should not be dismissed for failure to state a claim and as frivolous for the reasons stated herein. Signed by Senior District Judge Sam A. Crow on 03/26/14. (Mailed to pro se party DeRoyale A. Johnson by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DeROYALE A. JOHNSON,
Plaintiff,
v.

CASE NO.

14-3044-SAC

(fnu) Dr. Sale, et al.,
Defendants.
MEMORANDUM AND ORDER
This pro se civil rights complaint was filed pursuant to 42
U.S.C. § 1983 by an inmate of the Shawnee County Jail, Topeka,
Kansas (SCJ).

Having examined the materials filed, the court

finds that the statutory filing fee prerequisites have not been
satisfied

and

the

complaint

is

deficient

in

several

Plaintiff is given time to cure these deficiencies.
to

comply

within

the

prescribed

time,

this

ways.1

If he fails

action

may

be

dismissed without further notice.

FILING FEE

1

Local court rule requires that an inmate submit his civil rights
complaint upon court-approved forms.
Mr. Johnson has submitted only the
first two pages of the court’s complaint form and has not submitted his
claims upon forms. The court herein takes judicial notice of prior, similar
civil rights actions filed by Mr. Johnson and notes that he is no stranger to
federal court. Mr. Johnson is warned that if he files another action in this
court that is not fully and properly presented upon court-approved forms, he
will be required to re-submit his complaint.

1

The fees for filing a civil action in federal court total
$400.00 and consist of the statutory fee of $350.00 under 28
U.S.C. § 1914(a) plus an administrative fee of $50.00; or for
one that is granted leave to proceed in forma pauperis the fee
is $350.00.
Prepayment
submitted

Plaintiff has submitted a Motion to Proceed without
of
to

requirements.

Fees.
support

However,
this

the

motion

financial

does

not

information

meet

statutory

28 U.S.C. § 1915 requires that a prisoner seeking

to proceed without prepayment of fees submit a “certified copy
of

the

trust

fund

account

statement

(or

institutional

equivalent) for the prisoner for the 6-month period immediately
preceding

the

filing”

of

the

action

“obtained

from

the

appropriate official of each prison at which the prisoner is or
was confined.”

28 U.S.C. § 1915(a)(2).

Plaintiff has submitted

a document entitled “Work with Fund Ledger” for a single day
only.

He states that he was previously at the county jail from

April 16, 2013 through July 3, 2013, but does not explain where
he was for the six-month period that began in October 2013.

If

he was confined in any other jail or prison before being booked
back into Shawnee County Jail, then it is his responsibility to
obtain certified statements showing transactions in his inmate
accounts at any prior institutions during the relevant six-month
period and to provide that information to this court.
2

Plaintiff

is given time to satisfy this statutory prerequisite.

He is

forewarned that if he fails to provide the requisite financial
information or show cause why he cannot within the prescribed
time, this action may be dismissed without further notice.
Plaintiff is reminded that under 28 U.S.C. § 1915(b)(1),
being granted leave to proceed without prepayment of fees will
not relieve him of the obligation to pay the full amount of the
filing fee. Instead, it merely entitles him to pay the fee over
time

through

payments

automatically

deducted

from

his

inmate

trust fund account as funds become available.2

ALLEGATIONS AND CLAIMS
Generally,

exhibits

submitted

with

the

attached,

they

may

and

other

complaint.
be

evidence

However,

considered

part

should

when
of

not

exhibits

the

be
are

complaint.

Plaintiff has attached numerous exhibits to his complaint.
As Count I of his complaint, Mr. Johnson asserts violation
of

his

Eighth

generally

Amendment

claims

that

right

to

defendant

adequate
Dr.

Sale

health
was

care.

the

He

“Corizon

Clinical Head Doctor” whose “reckless” actions caused plaintiff

2

Under 28 U.S.C. § 1915(b)(2), the Finance Office of the facility where
Mr. Bruce is currently confined will be authorized to collect twenty percent
(20%) of the prior month’s income each time the amount in his institution
account exceeds ten dollars ($10.00) until the filing fee has been paid in
full.

3

bodily

harm

and

pain.

Plaintiff’s

allegations

and

exhibits

indicate the following factual background for this count.

Mr.

Johnson had a pre-existing “event or condition” involving his
shoulder, which was “reinjured upon (his) arrest on January 29,
2014.”

He was booked into the SCJ on January 30, 2014.

He

cannot lift or rotate his left shoulder without “extreme chronic
pain.”

Plaintiff had been taking Tylenol for pain control when

his medication was changed to Ibuprofen.
Ibuprofen in that it makes him sick.
Request

(HCR)

on

February

15,

2014,

He is allergic to

He sent a Health Care
stating

that

he

was

in

extreme severe chronic pain and had been without pain medication
since the day before because he had to refuse Ibuprofen.

On

February 17, 2014, he was notified in writing “Ibuprofen/NSAIDS
added to allergy list” and that his pain and shoulder issues
would be referred to Dr. Sale.
for 72 hours.

He was in “severe chronic pain”

Plaintiff alleges that medical records from April

and October 2013 reflected his allergy to Ibuprofen.

However,

exhibited

did

report

administrative

this

assessment.

particular

responses
allergy

at

indicate
his

that

January

he
2014

not

intake

An administrative response dated March 10, 2014, to

one of plaintiff’s grievances provided in pertinent part:
Your records do not show any dangerous allergies to
the pain medication given.
Furthermore, the records
do not reflect that you advised any medical staff of
your allergy upon your initial screening.
Finally
4

when you were given the pain medication, you reported
that you had an allergy to the medication and it was
immediately replaced with a different medication. You
never reported having negative symptoms (from having
taken the medication) so that further steps could be
taken to alleviate those symptoms.
Doc. 1-1 at pg. 23.
Plaintiff

informed

the

“intake

assessment

nurse”

of

“shoulder injuries sustained during his arrest” and sent six
HCRs from January 31 through February 17, 2014.

Plaintiff’s

shoulder was x-rayed on February 10, 2014, and he “received a
response stating there was no fracture or dislocation of the
shoulder.”

It took 14 dollars and 19 days before he was seen by

a doctor.

On February 17, 2014, he was seen by defendant Dr.

Sale.

He told Dr. Sale that he had complications from two total

hip replacement operations and would be in pain for the rest of
his life.

He also told Dr. Sale that he felt his right shoulder

rotator cuff was healing but not the left, which was causing him
extreme chronic pain, and that he could not lift his left arm or
rotate his arm and shoulder without “extreme chronic pain.”

Dr.

Sale did not touch him to examine him but only asked what he
could do to stop his complaints.

Dr. Sale “did not investigate”

plaintiff’s “injuries sustained during his arrest.”

Dr. Sale

prescribed an increased and more frequent dosage of Tylenol pain
medication, ordering that Mr. Jones was to receive 975 mgs of
Tylenol in the morning, at noontime, and at night.
5

On February 2 and again on March 4, 2014, a nurse checked
out plaintiff’s noontime medication but did not deliver it to
him.

Sometimes plaintiff was brought less than 975 mgs of his

medication.

On

February

4,

2014,

plaintiff

sent

an

inmate

request to “staff Director of Nursing,” which “Day Supervisor”
RN Don responded to the next day: “records indicate you are
receiving your noon doses now I will continue to monitor.”

On

February 23, 2014, plaintiff submitted another HCR complaining
that his noontime medication was not being delivered.3
HCR,

plaintiff

because

he

also

felt

requested

this

an

procedure

MRI

would

of

his

let

In this

left

him

shoulder

know

if

his

shoulder would heal on its own or he needed to seek surgery.

He

believed that an x-ray was not adequate to diagnose a rotator
cuff injury.
that

Dr.

Defendant RN Kerrin Marsh responded the next day

“does

not

believe

an

MRI

is

indicated”

and

“[o]ur

records indicate that you have been receiving your Tylenol as
ordered.”
As

Count

Amendment

II,

right

to

plaintiff
access

exhibits

indicate

the

claim.

Plaintiff

sent

asserts

the

following
a

courts.

His

factual

“Request

3

violation

to

of

his

allegations

background

Staff

First

the

for

and
this

Director

of

Plaintiff also alleges that on March 4, 2014, Med-Tech Erica stated in
front of Officer Bryan that she knew inmate Johnson wasn’t receiving his
noontime meds all the time even though it was logged as checked out and
delivered in the “Corizon medication log.” However, plaintiff’s statement as
to what another person said is not competent evidence.

6

Nursing” asking for copies of his own medical records and “the
full names, positions, and titles of Corizon staff personnel who
are to be named” in his civil rights complaint.4

Defendant Marsh

denied his request and advised that he needed approval from the
Director

of

the

Shawnee

County

Department

of

Corrections

in

order to possess his medical records in the jail and to obtain
the information regarding clinic personnel.5

Plaintiff stated in

his exhibited Inmate Request dated February 28, 2014, that on
February 20, 2014, he had received a “full and complete” copy of
his medical records except for “Jan 30 2014 intake assessment”
and a sick call record from Feb. 10, 2014.

He stated that his

“disability lawyers” had obtained these records on his behalf
from the Corizon medical clinic.

He further stated that the two

4

Plaintiff more specifically alleges that in Inmate Requests dated
February 28 and March 7, 2014, he asked for the “full names, titles and
position of” Dr. Sale, Kerrin Marsh, RN Don Day Supervisor, and “the RN Nurse
who worked as Corizon intake assessment nurse on January 30, 2014 day shift”
that “took his assessment when he was booked in.”
5

Plaintiff exhibits another pertinent administrative
March 10, 2014, which provided in relevant part:

response

Medical records . . . contain information that we do not allow
inmates to possess (while in the facility) for security reasons.
This includes that the very laws you referenced may be violated
if we contribute to another inmate viewing those records. [Y]ou
were told that you had to get Administrative Consent for the
records and that the cost of copying those records would be
$18.97. . . . If you want the copies made at your expense, you
can provide me notification of that and I will arrange to get the
copies made.
Id. at pg. 23.

7

dated

records he did not have would show that he “notified the medical
dept.” of his allergy to Ibuprofen.
Plaintiff

names

Marsh.

He

sports,

exercise,

as

defendants

Dr.

Sale

and

HSA

Karrin

claims that he has not been able to work, play
attend

church

services,

congregate

with

others, get mental health therapy, or attend self-help courses
since he was booked into the SCJ due to his inability to use his
left shoulder.

Plaintiff asserts that his right to necessary

medical treatment under the Eighth Amendment and his right of
access to the courts under the First Amendment were violated.
For relief, plaintiff seeks a “5 year injunction against the
Corizon Clinic” requiring that “they” treat a person entering
the SCJ “as if they entered the Stormont Vial (sic) Emergency
room” and “send referrals to the appropriate clinical dept.” of
people with visible injuries “that are not life threatening.”
In addition, plaintiff seeks compensatory and punitive damages.

SCREENING
Because
officials,

Mr.

the

Johnson

court

is

is

a

required

prisoner
by

suing

statute

to

government
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
8

a

defendant

immune

from

such

relief. 28 U.S.C. § 1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(B).
A court liberally construes a pro se complaint and applies “less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).

Nevertheless, “when

the allegations in a complaint, however true, could not raise a
claim of entitlement to relief,” dismissal is appropriate.
Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007).
litigant’s

“conclusory

allegations

without

supporting

Bell

A pro se
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).

court

The

“will

not

supply

additional

factual

allegations to round out a plaintiff’s complaint or construct a
legal theory on plaintiff’s behalf.”
F.3d

1170,

1173-74

(10th

Cir.

Whitney v. New Mexico, 113

1997).

Having

examined

all

materials filed under the foregoing standards, the court finds
that this action is subject to being dismissed for failure to
state a claim.

FAILURE TO STATE EIGHTH AMENDMENT CLAIM
The Eighth Amendment provides prisoners the right to be
free from cruel and unusual punishments.

This right is violated

if prison officials show “deliberate indifference to an inmate’s
serious medical needs.”

Boyett v. County of Washington, 282
9

Fed.Appx. 667, 672 (10th Cir. 2008); Mata v. Saiz, 427 F.3d 745,
751 (10th Cir. 2005).

The “deliberate indifference” standard

has two components: “an objective component requiring that the
pain or deprivation be sufficiently serious” (Estelle, 429 U.S.
at 104, 105; Farmer v. Brennan, 511 U.S. 825, 834 (1994)); and a
subjective component requiring that [jail] 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).

“A medical need is sufficiently serious

if it ‘has been diagnosed by a physician as mandating treatment
or . . . is so obvious that even a lay person would easily
recognize the necessity for a doctor=s attention.’”

Boyett, 282

Fed.Appx. at 672 (citing Sealock v. Colorado, 218 F.3d 1205,
1209 (10th Cir. 2000)(quoting Hunt v. Uphoff, 199 F.3d 1220, 1224
(10th Cir. 1999)); Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir.
1980); Martinez, 430 F.3d at 1304 (quoting Farmer, 511 U.S. at
834).

“A prison official has a sufficiently culpable state of

mind if the official ‘knows of and disregards an excessive risk
to inmate health or safety.’”

Boyett, 282 Fed.Appx. at 672

(citing Farmer, 511 U.S. at 837); Martinez, 430 F.3d at 1304.
“[T]he

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.”
10

Martinez, 430

F.3d at 1305 (citing Riddle v. Mondragon, 83 F.3d 1197, 1204
(10th Cir. 1996)).
It is established that an inadvertent failure to provide
adequate

medical

care

or

a

negligent

diagnosis

establish the requisite culpable state of mind.”

“fail[s]

to

Estelle, 429

U.S. at 106 (“[A] complaint that a physician has been negligent
in diagnosing or treating a medical condition does not state a
valid

claim

of

medical

mistreatment

under

the

Eighth

Amendment.”); Wilson v. Seiter, 501 U.S. 294, 297 (1991).

As

the United States Supreme Court has explained:
[A]n inadvertent failure to provide adequate medical
care cannot be said to constitute “an unnecessary and
wanton infliction of pain” or to be “repugnant to the
conscience of mankind.”
Thus, a complaint that a
physician has been negligent in diagnosing or treating
a medical condition does not state a valid claim of
medial
mistreatment
under
the
Eighth
Amendment.
Medical malpractice does not become a constitutional
violation merely because the victim is a prisoner. In
order to state a cognizable claim, a prisoner must
allege acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical
needs.
It is only such indifference that can offend
“evolving standards of decency” in violation of the
Eighth Amendment.
Estelle, 429 U.S. at 105-106 (footnote omitted).
Likewise, a mere difference of opinion between the inmate
and prison medical personnel regarding diagnosis or reasonable
treatment does not constitute cruel and unusual punishment.

See

Estelle, 429 U.S. at 106-07; Handy v. Price, 996 F.2d 1064, 1067
11

(10th

Cir.

1993)(affirming

that

a

quarrel

between

a

prison

inmate and doctor as to the appropriate treatment for hepatitis
did not successfully raise an Eighth Amendment claim); Ledoux v.
Davies, 961 F.2d 1536 (10th Cir. 1992)(Plaintiff’s contention
that he was denied treatment by a specialist is insufficient to
establish a constitutional violation.); El’Amin v. Pearce, 750
F.2d 829 (10th Cir. 1984)(A mere difference of opinion over the
adequacy of medical treatment cannot provide the basis for an
Eighth Amendment claim.).

The prisoner’s right is to medical

care - not to the type or scope of medical care he personally
desires.
Furthermore,

a

claim

of

total

denial

of

differs from a claim of inadequate medical care.
Townsend,

398

F.2d

complaint

alleges

diagnoses,

and

392,
a

(10th

394

“series

medication,”

of

it

Cir.
sick

“cannot

medical

Coppinger v.

1968).
calls,

be

said

care

Where

the

examinations,
there

‘deliberate indifference’ to the prisoner’s complaints.”

was

a

Smart

v. Villar, 547 F.2d 112, 114 (10th Cir. 1976).
Additionally, in situations where treatment was delayed rather
than denied altogether, the Tenth Circuit requires the inmate to
show that he suffered “substantial harm” as a result of the
delay.
Olson

Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001);
v.

Stotts,

9

F.3d

1475
12

(10th

Cir.

1993)(a

delay

in

providing medical care does not violate the Eighth Amendment
unless

there

has

substantial harm.).

been

deliberate

indifference

resulting

in

“The substantial harm requirement ‘may be

satisfied by lifelong handicap, permanent loss, or considerable
pain’.”
allegations

Garrett,
of

254

missed

F.3d

at

diagnoses

950.

In

cases

or

delayed

involving

treatment,

a

plaintiff may establish liability by showing:
(1) a medical professional recognizes an inability to
treat the patient due to the seriousness of the
condition and his corresponding lack of expertise but
nevertheless
declines
or
unnecessarily
delays
referral, e.g., a family doctor knows that the patient
needs delicate hand surgery requiring a specialist but
instead of issuing the referral performs the operation
himself; (2) a medical professional fails to treat a
medical condition so obvious that even a layman would
recognize the condition, e.g., a gangrenous hand or a
serious laceration; [or] (3) a medical professional
completely
denies
care
although
presented
with
recognizable symptoms which potentially create a
medical emergency, e.g., a patient complains of chest
pains and the prison official, knowing that medical
protocol requires referral or minimal diagnostic
testing to confirm the symptoms, sends the inmate back
to his cell.
Boyett, 282 Fed.Appx. at 673 (quoting Self v. Crum, 439 F.3d
1227, 1232 (10th Cir. 2006)).
Taking all of plaintiff’s factual allegations as true, as
opposed to his conclusory statements and opinions, the court
finds that plaintiff fails to state a claim of cruel and unusual
punishment under the Eighth Amendment.

Mr. Johnson’s specific

allegations in the complaint and his exhibits show that medical
13

attention

was

afforded

to

him

at

the

SCJ.

Plaintiff’s

own

allegations and exhibits show that he was medically assessed
upon intake, was given a shoulder x-ray, was seen by Dr. Sale,
and

that

Dr.

Sale

prescribed

medication

and

diagnosed

his

shoulder as not needing an MRI.
Plaintiff’s allegations and exhibits further show that Mr.
Johnson’s complaints amount to his difference of opinion with
the professional diagnosis and treatment provided by Dr. Sale.
Plaintiff alleges that he was not examined and treated as he
believes

was

denied.

necessary

The

and

questions

that

of

his

what

request

diagnostic

for

an

tests

MRI

should

was
be

performed and what treatment is necessary are classic examples
of medical judgment.

An erroneous medical decision regarding a

test or treatment does not, without more, amount to cruel and
unusual

punishment.

At

most,

an

error

in

medical

judgment

amounts to malpractice,6 which is not actionable under the Eighth
Amendment.

See Estelle, 429 U.S. at 106.

Furthermore, Dr. Sale’s failure to touch Mr. Johnson during
an

examination does not demonstrate that Dr.

substantial

risk

of

serious

harm.7

Sale

Careless

ignored a

diagnosis

or

6

If plaintiff can allege facts to support a claim for medical
malpractice, his remedy is in state, not federal, court. He is advised that
there is a statutory time limit on the time in which a medical malpractice
lawsuit may be filed in state court.
7

Plaintiff’s bald statement that he was injured during his arrest and

14

treatment

of

known

serious

medical

state a constitutional claim.

needs

is

insufficient

to

As held in Farmer v. Brennan, 511

U.S. 825, 828 (1994), a plaintiff must show that the defendant
in question intentionally ignored “a substantial risk of serious
harm to an inmate” in order to maintain a constitutional claim
under the Eighth Amendment.

The state of mind required is “more

blameworthy than negligence.”

Id. at 835.

held

or

that

careless

diagnosis

treatment

medical needs of prisoners” is insufficient.

Farmer specifically
of

known

“serious

Id.

Plaintiff’s allegations of being offered Ibuprofen to which
he was allergic and refusing this medication for 72 hours are
not accompanied by allegations of any substantial injury or a
culpable state of mind on the part of Dr. Sale.

Nor does he

state that he sought but was denied immediate medical attention
for severe pain.

With respect to plaintiff’s allegations of

missed dosages, he provides only two separate dates on which he
claims one of three doses of his medication was not delivered.
He alleges no facts suggesting that non-delivery of these two
doses was other than accidental or inadvertent or that the delay
in his receipt of medication resulted in substantial harm.

His

was not treated utterly fails to show that Dr. Sale ignored a substantial
risk of harm to plaintiff.
This statement is completely conclusory.
Plaintiff does not describe the injuries and does not allege or show when and
from whom he sought medical treatment for these injuries in particular. Nor
does he describe any such injury that was so apparent after his arrest that
even a lay person would recognize the need for immediate medical treatment.

15

allegation that sometimes he was not given full doses is too
vague to state a claim or assign liability.

Moreover, plaintiff

does not allege that Dr. Sale intentionally interfered with his
medication or even personally participated in any failure to
deliver his medication or provide the correct dosage on any
given

date.

Finally,

once

plaintiff

notified

or

reminded

medical staff of his allergy, the matter was quickly resolved.
Based on the foregoing, the court finds that plaintiff’s
claims of denial of medical treatment are subject to dismissal
for failure to state a claim under the Eighth Amendment.

FAILURE TO STATE DENIAL OF ACCESS CLAIM
It

is

well-established

that

a

prison

constitutional right of access to the courts.

inmate

has

a

However, in order

to state such a claim, “an inmate must satisfy the standing
requirement

of

‘actual

injury.’”

1399, 1403 (10th Cir. 1996).

Penrod

v.

Zavaras,

94

F.3d

To establish actual injury, the

plaintiff must show that the alleged deprivation “prejudiced him
in pursuing litigation.”

Johnson v. Miller, 387 Fed.Appx. 832,

839 (10th Cir. 2010)(citing see Treff v. Galetka, 74 F.3d 191,
194 (10th Cir. 1996)); see also Lewis v. Casey, 518 U.S. 343, 351
(1996)(“meaningful access to the courts is the touchstone . . .
the

inmate

.

.

.

must

.

.

.
16

demonstrate

that

the

alleged

(deprivation) hindered his efforts to pursue a legal claim.”).
This element may be shown by alleging prejudice to contemplated
or existing litigation, such as the inability to meet a filing
deadline or present a claim, or that a nonfrivolous legal claim
filed by him was dismissed, frustrated or impeded.

Id. at 350,

353.
In this case, Mr. Johnson alleges that his requests for the
two

medical

describe

any

records
actual

were
injury

denied,
that

but

he

resulted

utterly
from

fails

this

to

denial.

Instead, he merely states in conclusory fashion that his right
of access was denied as a result.

He alleges no facts showing

that any non-frivolous action filed by him was actually impeded
by the denial of these two medical records.

His argument that

the excluded records will confirm his position that his allergy
to Ibuprofen could have been found in his medical records does
not suggest any basis for finding actual prejudice to this or
any other lawsuit.8
Likewise, plaintiff makes no showing that the denial of his
request for personal information regarding medical staff impeded
his filing of this or any other lawsuit.

8

Nor would it seem that

As the court previously implied herein, whether or not plaintiff’s
allergy to Ibuprofen was listed in his medical record and overlooked at
intake is immaterial, given that plaintiff refused to take Ibuprofen when
offered and managed to quickly correct the error through administrative
channels.

17

he could, since he managed to file this action against Dr. Sale
and HSA Karrin Marsh.

DISMISSAL WILL COUNT AS STRIKE
Plaintiff
action

will

is

be

notified

pursuant

that

to

28

dismissal
U.S.C.

§

of

this

cause

1915(e)(2)(B)

of

and

§

1915A(b), because plaintiff’s allegations fail to state a claim.
Accordingly, this case

will

count as a

“strike”

against him

pursuant to 28 U.S.C. § 1915(g)9 upon affirmance or waiver of his
opportunity to appeal.

The court takes judicial notice of other

similar

by

actions

filed

Mr.

DeRoyale

Johnson

while

he

was

incarcerated and finds that two of these actions appear to be
prior occasions.

In the first action, Johnson v. Richins, Case

No. 2:08-CV-945-CW (D. Utah, Aug. 23, 2011), while plaintiff was
an inmate at the Utah State Prison, he filed a 1983 complaint
claiming that defendant prison officials temporarily withheld
his pain medication following an “alleged cheeking incident,”
and unfairly dealt with his related grievances.

9

His claims were

Section 1915(g) of 28 U.S.C. provides:
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section if
the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action or
appeal in a court that is frivolous, malicious, or fails to state
a claim upon which relief may be granted, unless the prisoner is
under imminent danger of serious physical injury.

18

dismissed on summary judgment upon the court’s findings that the
record did not support plaintiff’s claim that his pain was so
severe as to constitute a serious medical need and, even it did,
the record showed that medical personnel were not deliberately
indifferent to plaintiff’s condition.

In addition plaintiff’s

claim of denial of due process was found to be “entirely without
merit.”).

Plaintiff

appealed

this

decision,

and

the

Tenth

Circuit affirmed, finding that the record did not show either
deliberate

indifference

or

substantial

harm

to

Mr.

Johnson.

Johnson v. Richins, No. 10-4171 (10th Cir. Aug. 23, 2011).
Johnson’s

motion

to

proceed

costs was denied.

on

appeal

without

prepayment

Mr.
of

In the second action, Mr. Johnson filed a §

1983 complaint while

confined at the Salt Lake County Jail,

claiming denial of medications and failure to provide adequate
medical treatment for a hernia.
2:11-CV-641
dismissed

DB

upon

(D.

Utah,

March

defendants’

Johnson v. Tubbs, Case No.
1,

motion

2013).
to

dismiss

comply with the statute of limitations.
these

two

actions

filed

by

Mr.

This
for

action
failure

was
to

The court finds that

Johnson

qualify

as

“prior

occasions” under § 1915(g).
If the instant action becomes a strike, it will be Mr.
Johnson’s
litigant.

third,

and

he

will

be

designated

a

three-strikes

In that event, he will be required to pay the full
19

filing fee of $400.00 upfront in order to litigate a claim in
federal court, unless he makes a showing that he is in imminent
danger of serious physical injury.
IT IS THEREFORE ORDERED that plaintiff is granted thirty
(30) days in which to provide the financial information required
by

federal

law

to

support

his

Motion

to

that

within

the

Proceed

without

Prepayment of Fees.
IT
period

IS

FURTHER

plaintiff

ORDERED

is

required

to

show

cause

same
why

thirty-day
this

action

should not be dismissed for failure to state a claim and as
frivolous for the reasons stated herein.
IT IS SO ORDERED.
Dated this 26th day of March, 2014, at Topeka, Kansas.

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

20