Bryant v. Butler County Detention Facility

Filing 16

ORDER ENTERED: Plaintiff has failed to state a claim and directs that plaintiff's case be dismissed without prejudice. Signed by U.S. District Senior Judge Sam A. Crow on 01/26/18. Mailed to pro se party Gary L. Bryant by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

GARY L. BRYANT,
Plaintiff,
vs.

Case No. 16-3240-SAC

BUTLER COUNTY DETENTION FACILITY,
Defendant.

O R D E R
This

case

is

before

the

court

to

consider

plaintiff’s

responses to this court’s order to show cause why this case
should not be dismissed for failure to state a claim pursuant to
28 U.S.C. §§ 1915(e)(2)((B)(ii) and 1915A(b)(1).

As noted in

the show cause order, the court gives a liberal construction to
plaintiff’s pleadings.
On December 8, 2016, plaintiff filed an amended complaint
on forms for bringing an action under 42 U.S.C. § 1983.
No. 3.

Doc.

The amended complaint names the Butler County Detention

Facility (BCDF) as the sole defendant.

The amended complaint

alleges that employees at the BCDF neglected to follow up with
treatment

for

a

serious

injury

to

plaintiff’s

hand

causing

plaintiff severe physical pain and suffering as well as mental
anguish
amended

and

permanent

complaint,

deformity.

plaintiff

On

asserts

1

pages

2

and

negligence

3

of

by

the
BCDF

personnel.

The court’s show cause order (Doc. No. 7), citing

Daniels v. Williams, 474 U.S. 327 (1986), noted that a charge of
negligence

does

Constitution

or

not

state

federal

a

law

claim
that

for

may

a

be

violation
litigated

of

the

under

42

U.S.C. § 1983.1
Plaintiff has filed multiple responses to the show cause
order.
they

These responses provide more factual background.

do

showing

not
a

describe

plausible

facts,
claim

as

of

opposed

to

deliberate

bare

But,

assertions,

indifference

to

a

serious medical need, as necessary to allege a constitutional
violation for which plaintiff may recover under § 1983.

Nor

does plaintiff assert a claim against a person who may be sued
under § 1983.
I. Plaintiff’s responses
Plaintiff

has

submitted

copies

of

medical

records

documenting two visits with medical staff on October 28, 2016
and November 18, 2016.
plaintiff

was

injured

Doc. No. 9.
on

October

10,

The records show that
2016

when

rolled over while he was being chased by police.
treated at an emergency room on that day.

his

vehicle

Plaintiff was

A splint was applied

to his right hand to care for a fracture or dislocation.

1

The

Section 1983 provides that persons acting under the authority of state law
may be held liable for depriving citizens of their rights under the
Constitution or laws of the United States.

2

court assumes that plaintiff was incarcerated at BCDF on or
about October 10, 2016.
Plaintiff’s October 28, 2016 medical visit occurred with an
outside source (“The Hand Center, P.A.”) while plaintiff was in
custody at BCDF.

The records indicate that plaintiff’s hand was

not discolored.

They also show that he was not complaining of

loss of nerve or motor function, but that there was some pain
and dysfunction.

X-rays showed a fracture.

It was suggested

that plaintiff try some time “out of cast” and try to establish
a “gentle range of motion.”

Plaintiff was agreeable to this.

A

follow-up visit was suggested in 8 to 10 days.
A

visit

set

for

November

8,

2016

was

cancelled,

but

plaintiff was seen again at the hand clinic on November 18,
2016.

Plaintiff reported that he was about the same and still

had some symptoms.

The color and appearance of his hand was

appropriate, but there was still some tenderness, stiffness and
lack of strength.

It was suggested that plaintiff squeeze warm

water from a sponge or washcloth as an exercise.

Otherwise,

plaintiff was released to regular activities with follow-up as
needed.
On January 25, 2017, plaintiff asserted to the court that
he did not get follow-up visits that were ordered by doctors.
Doc. No. 8.

On February 7, 2017, plaintiff asserted the staff

at BCDF denied several requests he made for medical treatment
3

“placing my . . . condition in a permanent state of undue trauma
and disfigurement.

Causing excessive pain and suffering along

with substantially high future medical expense, in repairing the
damage.”

Doc. No. 11. It appears that plaintiff was released

from BCDF on or about March 9, 2017, but later returned to
custody.
II. Failure to state a claim
To

allege

a

constitutional

violation

for

which

he

may

recover under § 1983, plaintiff must allege facts describing a
deliberate indifference to a serious medical need.
v.

Gamble,

429

U.S.

97,

104

(1976)(applying

See Estelle
standard

to

treatment of prisoners post-conviction); Olsen v. Layton Hills
Mall, 312 F.3d 1304, 1315 (10th Cir. 2002)(applying the same
standard to the treatment of pretrial detainees).

This can

result from intentionally denying or delaying access to medical
care.

Estelle, 429 U.S. at 104-05.

But, proof of inadvertence

or negligence is not sufficient to establish a valid claim.
at 105-06; Self v. Crum, 439 F.3d 1227, 1233 (2006).

Id.

Further,

the Constitution is not violated by a person who simply resolves
“the question whether additional diagnostic techniques or forms
of

treatment

is

indicated.”

Estelle,

429

U.S.

at

107.

A

plaintiff must show the defendant knew the plaintiff “faced a
substantial risk of harm and disregarded that risk ‘by failing
to take reasonable measures to abate it.’”
4

Hunt v. Uphoff, 199

F.3d 1220, 1224 (10th Cir. 1999)(quoting Farmer v. Brennan, 511
U.S. 825, 847 (1994)).

A disagreement between an inmate and

medical personnel over the course of treatment, without more,
does not give rise to a deliberate indifference claim.

Gee v.

Pacheco, 627 F.3d 1178, 1192 (10th Cir. 2010).
In plaintiff’s responses to the show cause order, plaintiff
has failed to allege facts showing deliberate indifference as
opposed to negligence.

Plaintiff does not plausibly describe a

situation in which persons working for BCDF knew plaintiff faced
a substantial risk of harm and disregarded that risk by failing
to take reasonable measures to abate it.

Plaintiff does not

assert

knew

facts

suffering

showing

severe

disfigurement.
not

indicate

visits

that

pain

BCDF

or

personnel

the

possibility

plaintiff
of

was

permanent

The medical records submitted to the court do
as

ordered

much.
by

Nor

doctors

do

were

they

indicate

disregarded.

that
At

follow-up

most,

what

plaintiff has alleged is that jail staff did not recognize or
appreciate the severity of plaintiff’s hand condition in the
same way as plaintiff.

This might describe negligence, but it

does not describe deliberate indifference to a serious medical
need.
In Self, the court stated that a plausible claim may be
described by facts showing that an obvious need for treatment
was ignored.

439 F.3d at 1232.
5

This could happen when a BCDF

health officer or jail authority: 1) recognized the need for
further

medical

treatment,

such

as

delicate

hand

surgery

requiring a specialist, and declined or refused to provide a
referral; 2) failed to treat a condition, such as a gangrenous
hand or serious laceration, that would have been obvious even to
a layperson; or 3) completely denied care though presented with
recognizable
emergency.
608

(10th

symptoms

which

potentially

create

a

medical

Id.; see also, Sparks v. Singh, 690 Fed.Appx. 598
Cir.

2017)(“absent

an

obvious

risk,

the

need

for

additional treatment usually is a matter of medical judgment,
which is not a predicate for deliberate indifference”); Walker
v.

Hickenlooper,

627

Fed.Appx.

710,

(10th

718

Cir.

2015)(affirming dismissal of claims against some defendants when
allegations did not show need for medical care was obvious to
them).

Plaintiff does not state facts plausibly showing that a

recognizable need of treatment for a serious medical issue was
known but disregarded by BCDF personnel.
In addition, although it was not mentioned in the court’s
show

cause

suable
rights.

order,

entity

plaintiff

that

has

allegedly

not

acted

named
to

as

a

violate

defendant

a

plaintiff’s

Of course, a “person” liable under § 1983 may include

governmental authorities which may sue or be sued and, in some
instances,
functions.

corporations

who

are

performing

governmental

This court, however, has held that county detention
6

facilities

are

not

“persons”

who

may

be

sued

under

§

1983

because they do not have the legal capacity to sue or be sued.
See Gray v. Kufahl, 2016 WL 4613394 *4 (D.Kan. 9/6/2016)(Lyon
County

Detention

Sedgwick

County

Center

is

not

Jail,

2012

a

WL

suable

entity);

5289677

*2

Baker

n.3

v.

(D.Kan.

10/24/2012)(Sedgwick County Jail is not a suable entity under §
1983); Chubb v. Sedgwick County Jail, 2009 WL 634711 *1 (D.Kan.
3/11/2009)(same); Howard v. Douglas County Jail, 2009 WL 1504733
*3

(D.Kan.

5/28/2009)(Douglas

County

Jail

is

not

a

“person”

subject to suit under § 1983).
If plaintiff were to name an entity which could be sued,
such as the Board of County Commissioners for Butler County or a
company in charge of providing medical services in the detention
facility, his claim would still fail as currently alleged.

A

governmental

a

entity

or

a

corporate

entity

performing

governmental function is not liable under § 1983 merely because
it employed someone whose actions violated § 1983.

The doctrine

of respondeat superior or vicarious liability does not apply.
Plaintiff would have to allege facts demonstrating that a county
or corporate policy caused the alleged constitutional violation.
See Connick v. Thompson, 563 U.S. 51, 60-61 (2011); Smedley v.
Corrections Corp. of America, 175 Fed. App'x 943, 946 (10th Cir.
2005)(applying § 1983 standards for municipal liability to a
private prison corporation); Cox v. Ann, 2015 WL 859064 *16
7

(D.Kan. 2/27/2015)(same).
the

complaint

which

Plaintiff does not allege facts in

plausibly

demonstrate

that

a

corporate policy was responsible for his injury.

county

or

In summary,

plaintiff’s failure to allege facts describing a plausible claim
against

an

individual

or

suable

entity

provides

additional

grounds to dismiss plaintiff’s amended complaint for failure to
state claim.
III. Conclusion
Plaintiff’s amended complaint and responses to the court’s
show cause order fail to allege facts showing a plausible claim
of

deliberate

indifference

to

a

serious

medical

need.

In

addition, plaintiff fails to name an individual or suable entity
whose

actions

or

policies

are

alleged

to

be

deliberately

indifferent to plaintiff’s serious medical needs while plaintiff
was at BCDF.

The court concludes that plaintiff has failed to

state a claim and directs that plaintiff’s case be dismissed
without prejudice.
IT IS SO ORDERED.
Dated this 26th day of January, 2018, at Topeka, Kansas.

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

8