Powell v. Laurie et al
Filing
22
NOTICE AND ORDER TO SHOW CAUSE ENTERED: Within twenty (20) days of receipt of this order, Plaintiff shall show cause to the Honorable Sam A. Crow why Plaintiff's complaint should not be dismissed. Plaintiff's Motion to Appoint Counsel 13 is denied without prejudice. Signed by Magistrate Judge David J. Waxse on 08/11/17. Mailed to pro se party Darren L. Powell by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DARREN LEE POWELL,
Plaintiff,
v.
CASE NO.16-3251-SAC-DJW
JACK LAURIE, et al.,
Defendants.
NOTICE AND ORDER TO SHOW CAUSE
On December 15, 2016, Plaintiff, a state prisoner appearing
pro se, filed a 42 U.S.C. § 1983 civil rights complaint.
The
Court conducted a preliminary review of the complaint, dismissed
one
count
and
three
defendants,
and
found
that
the
proper
processing of the remainder of Plaintiff’s claims could not be
achieved without additional information (Doc. #10).
Defendant
Crystal Martin filed a Martinez report on July 6, 2017 (Doc.
#18).
After reviewing the Martinez report in conjunction with
Plaintiff’s complaint and attachments, the Court finds that the
remainder of Plaintiff’s complaint is subject to dismissal for
the reasons discussed below.
1
Statutory Screening of Prisoner Complaints
The
Court
is
required
to
screen
complaints
brought
by
prisoners seeking relief against a governmental entity or an
officer or employee of such entity to determine whether summary
dismissal is appropriate.
28 U.S.C. § 1915A(a).
Additionally,
with any litigant, such as Plaintiff, who is proceeding in forma
pauperis,
the
Court
has
determine its sufficiency.
a
duty
to
screen
the
complaint
See 28 U.S.C. § 1915(e)(2).
to
Upon
completion of this screening, the Court must dismiss any claim
that is frivolous or malicious, fails to state a claim upon
which relief may be granted, or seeks monetary damages from a
defendant
who
is
immune
from
such
relief.
28
U.S.C.
§§
1915A(b), 1915(e)(2)(B).
To survive this review, the plaintiff must plead “enough
facts to state a claim to relief that is plausible on its face.”
Bell
Atl.
Corp.
v.
Twombly,
550
U.S.
544,
570
(2007).
In
applying the Twombly standard, the Court must assume the truth
of all well-pleaded factual allegations in the complaint and
construe them in the light most favorable to the plaintiff.
See
Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th
Cir. 2011).
Where, as here, the Court has ordered a Martinez report, it
is used to develop the record to ascertain whether there are any
factual or legal bases for the plaintiff’s claims.
2
Janke v.
Price,
43
consider
F.3d
the
1390,
Martinez
1392
(10th
report
in
Cir.
1994).
dismissing
The
a
Court
claim
may
under
§
1915(d) but cannot use the report to resolve material disputed
factual issues by accepting the report when it is in conflict
with the plaintiff’s allegations.
Hall v. Bellmon, 935 F.2d
1106, 1109 (10th Cir. 1991). “The [Martinez report] should be
used to determine whether or not a relevant, bona fide dispute
exists, not to resolve such a dispute.”
El'Amin v. Pearce, 750
F.2d 829, 832 (10th Cir. 1984).
Complaint
In accordance with the standards outlined above, the Court
assumes the truth of the factual allegations made in Plaintiff’s
complaint for purposes of conducting the screening.
The crux of
Plaintiff’s complaint is that he has been denied appropriate
medical care for the treatment of diabetes by the staff of the
Atchison County Jail (“ACJ”).
In
Count
medication.
Buchanon
1,
Plaintiff
claims
he
was
denied
proper
Mr. Powell was apprehended on August 13, 2016, in
County,
Missouri.
Upon
apprehension,
he
was
transported directly to a medical provider due to complications
with his blood sugar.
including
Humalog
He was prescribed several medications,
insulin,
Glyburide,
AccuChecks prior to every meal.
and
Metformin,
Plaintiff was taken to the
Buchanon County Jail where he remained for six days.
3
and
While
there, the prescribed treatment was followed and Plaintiff did
not have further complications.
On
August
19,
2016,
Plaintiff
was
transported
to
ACJ.
“[W]ithin the first couple of weeks” of his arrival at ACJ,
Plaintiff’s
insulin
and
Glyburide
were
discontinued
and
his
dosage of Metformin was reduced, all by Defendant Physician’s
Assistant Jane Doe, as recommended by Defendant Crystal Martin,
a nurse at ACJ.
In Count 2, Plaintiff alleges he has been denied proper
medical
auxiliary
aides
Plaintiff
complained
Defendant
Martin.
examination.
Defendant
of
She
and
exams.
“difficulty
stated
ACJ
Upon
arrival
at
with
his
eye
would
not
provide
ACJ,
vision”
an
to
eye
Plaintiff also mentioned his vision problems to
Tammy
Jones,
a
correctional
officer,
who
told
Plaintiff he would need to speak with the medical staff, and
filed
two
grievances
requesting
vision
testing,
which
denied by Defendants Travis Wright and Jack Laurie.
were
However,
since the filing of his complaint, it appears ACJ nursing staff
made an appointment for Mr. Powell to have an annual diabetic
eye exam on June 1, 2017.
Doc. #18-1, p.167.
In Count 3, Plaintiff complains that the medical staff did
not perform an A1C test on him until November 9, 2016.1
1
He
An A1C is a test that is used to determine a person’s average level of blood
sugar for the past two to three months.
4
believes
this
test
should
have
occurred
“shortly
after”
his
arrival at ACJ.
In Count 4, Mr. Powell complains of the diet he is being
provided at ACJ, stating it is a high carbohydrate diet when it
should be a low carb diet.
Plaintiff alleges his blood sugar
dropped to “a fairly low number a couple of time” the first
weekend he was at ACJ due to the change in his diet.
Defendant
medical
Martin
records
Plaintiff’s
provided
from
ACJ.
account,
the
allegations as true.
the
Where
Court
Court
the
has
with
records
Plaintiff’s
conflict
accepted
with
Plaintiff’s
However, the medical records largely do
not conflict with the complaint, but they do contain additional
details
that
allegations.
do
not
directly
conflict
with
Plaintiff’s
For example, according to the medical records,
medical staff at ACJ either saw Plaintiff or reviewed his blood
sugar readings and adjusted his medication at least 16 times
between August 19, 2016, and May 9, 2017.
Also, the medical
records document several times where Plaintiff was seen eating
sweets or trading items from his diabetic tray for cookies or
cakes.
This appears to be consistent with a grievance Plaintiff
attached to his complaint2, which refers to a message discovered
by prison staff that Plaintiff had placed in a book to be given
2
“A written document that is attached to the complaint as an exhibit is
considered part of the complaint and may be considered in a Rule 12(b)(6)
dismissal.” Hall v. Bellmon, 935 F.2d 1106, 1112 (10th Cir. 1991).
5
to his wife.
The message said that Plaintiff was going to “try
and get released on a medical.”
Doc. #1-1, p. 3.
In addition to his claims related to medical treatment,
Plaintiff complains in Count 6 that he requested the names of
several
staff
members
of
the
jail
and
was
denied
that
information by Defendants Wright and Laurie.
Finally,
in
Count
7,
Plaintiff
states
Defendant
Wright
threatened to retaliate against him as a result of “all the
grievances” he has filed, saying “since he now knows I plan on
taking legal action that a lot of my avenues just got shut down”
and that Plaintiff would “now get the minimal treatment with no
opportunity for a chance to participate with the inmate work
program.”
Plaintiff’s
request
for
relief
seeks
compensatory
and
punitive damages in the amount of $500,000.
Analysis
After
conducting
its
initial
review
of
Plaintiff’s
complaint, it appeared to the Court that Plaintiff had failed to
state a claim for a constitutional violation.
Court
determined
additional
Plaintiff’s
information
Plaintiff’s claims.
that
medical
could
be
records
useful
However, the
might
in
provide
screening
After reviewing Plaintiff’s complaint with
the standards set out above in mind, as well as the information
contained in Plaintiff’s medical records, the Court finds that
6
the complaint is subject to summary dismissal under 28 U.S.C. §§
1915A(b) and 1915(e)(2) for the following reasons.
1. Counts 1, 2, 3, and 4 - Denial of Adequate Medical Care
Plaintiff claims that the medical care he received at ACJ
was so deficient that it violated his rights under the Eighth
Amendment, or amounted to cruel
and unusual punishment.
To
state a claim for an Eighth Amendment violation based on denial
of
medical
care,
a
prisoner
must
show
that
the
defendant
exhibited “deliberate indifference to serious medical needs” of
the prisoner.
Estelle v. Gamble, 429 U.S. 97, 104 (1976).
The
“deliberate indifference” standard includes an objective and a
subjective component, both of which must be met to prevail under
42 U.S.C. § 1983 on a claim of medical mistreatment.
Martinez
v. Garden, 430 F.3d 1302, 1304 (10th Cir. 2005).
In
the
objective
analysis,
the
deprivation
must
be
“sufficiently serious,” and the inmate must show the presence of
a “serious medical need.”
Estelle, 429 U.S. at 104-05.
A
medical need is considered “sufficiently serious” if it “has
been diagnosed by a physician as mandating treatment.”
v.
Kaplan,
241
F.3d
1272,
quotation marks omitted).
by
a
physician
as
1276
(10th
Cir.
2001)
Oxendine
(internal
Because Plaintiff has been diagnosed
suffering
from
diabetes
and
requiring
treatment, he meets the objective component of the “deliberate
indifference” standard.
7
“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 (quoting Sealock v. Colorado, 218
F.3d 1205, 1209 (10th Cir. 2000)).
In Mr. Powell’s case, he has
not shown that his “serious medical need” was disregarded.
own
allegations
Plaintiff’s
treatment.
demonstrate
claim
is
that
based
on
he
his
was
being
disagreement
His
treated.
with
that
However, “[a] mere difference of opinion between the
prison's medical staff and the inmate as to the diagnosis or
treatment which the inmate receives does not support a claim of
cruel and unusual punishment.”
(10th
Cir.
1980).
Ramos v. Lamm, 639 F.2d 559, 575
Similarly,
a
difference
of
opinion
among
medical providers about treatment is also not actionable under
the Eighth Amendment.
See Johnson v. Stephan, 6 F.3d 691, 692
(10th Cir. 1993); Supre v. Ricketts, 792 F.2d 958, 962-63 (10th
Cir. 1986).
A prisoner does not make a showing of deliberate
indifference where he was simply denied “a particular course of
treatment” that he desired.
Callahan v. Poppell, 471 F.3d 1155,
1160 (10th Cir. 2006).
Plaintiff’s
allegation
that
the
medical
staff
at
ACJ
discontinued two medications and reduced the dosage of a third
does
not
state
a
constitutional
violation.
These
actions
indicate a difference of opinion as to treatment between the
medical providers at ACJ and the provider in Buchanon County,
8
not deliberate indifference to Plaintiff’s needs.
Plaintiff’s
claim about the timing of the A1C test also reflects only a
difference of opinion.
Mr. Powell acknowledges the test was
performed; it was just not administered when he believes it
should have been.
Similarly, the diet Plaintiff was provided at
ACJ was ordered by the medical staff.
Plaintiff may disagree
with the diet, but it does not reflect deliberate indifference
on the part of ACJ or any defendant.
The bottom line is that none of Plaintiff’s allegations
demonstrate
needs.
deliberate
indifference
to
his
serious
medical
Plaintiff’s own allegations show he was being treated,
not ignored, and the medical records support that.
It appears that Plaintiff’s allegations in Count 2 about
being denied a diabetic eye exam are more properly assessed as a
delay in Plaintiff receiving treatment.
Plaintiff complained of
vision problems upon his arrival at ACJ and requested an eye
exam.
A diabetic eye exam was finally scheduled in June of
2017.
A delay in providing medical care only rises to the level
of an Eighth Amendment violation where the plaintiff can show
the delay resulted in substantial harm.
1276.
Oxendine, 241 F.3d at
“The substantial harm requirement ‘may be satisfied by
lifelong handicap, permanent loss, or considerable pain.’”
Mata
v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005)(quoting Garrett v.
Stratman, 254 F.3d 946, 950 (10th Cir. 2001)).
9
While the delay
here may not have been ideal, in Plaintiff’s case he has not
alleged that he suffered “substantial harm” as a result of the
delay in treatment that occurred.
The Court finds that Counts 1, 2, 3 and 4 of Plaintiff’s
complaint
do
not
state
a
constitutional
violation
and
are
subject to dismissal for failure to state a claim upon which
relief may be granted.
2. Count 6 – Denial of information
Plaintiff claims in Count 6 that his First, Fifth, Sixth,
Eighth, and Fourteenth Amendment rights were violated, as well
as the Freedom of Information Act, when Defendants Wright and
Laurie refused to give him the names of ACJ medical staff, the
food
contractor,
Plaintiff
does
the
medical
not
contractor,
explain
why
he
and
the
believes
dietician.
he
has
a
constitutional right to this information such that denying him
the names states a claim under § 1983, and the Court has not
found such a right.
F.3d
1215,
violation
1237
where
See Trentadue v. Integrity Committee, 501
(10th
Cir.
federal
2007)(finding
agency
violated
no
the
constitutional
Freedom
of
Information Act in failing to provide documents requested by
plaintiff).
As
for
Plaintiff’s
claim
that
Defendants
violated
the
Freedom of Information Act (FOIA), FOIA is a federal statute
that applies only to federal agencies.
10
Kansas does have the
Kansas Open Records Act, K.S.A. 45-215, et seq. (KORA), which is
applicable to state agencies.
Plaintiff has not alleged a KORA
violation, and even if he had, that would be a state claim over
which this Court declines to exercise supplemental jurisdiction.
Count
6
of
Plaintiff’s
complaint
is
subject
to
summary
dismissal for failure to state a claim.
3. Count 7 - Retaliation claim
Plaintiff
alleges
that
Defendant
Wright
threatened
to
retaliate against him as a result of “all the grievances” he has
filed, saying “since he now knows I plan on taking legal action
that a lot of my avenues just got shut down” and that Plaintiff
would “now get the minimal treatment with no opportunity for a
chance to participate with the inmate work program.”
To plead a plausible First Amendment retaliation claim, a
plaintiff must show (1) that he engaged in a constitutionally
protected activity, (2) that he suffered an adverse responsive
action
that
would
chill
a
person
of
ordinary
firmness
from
continuing to engage in that activity, and (3) that the adverse
action
was
substantially
motivated
constitutionally protected conduct.
as
a
response
to
his
Reed v. Heimgartner, 579 F.
App’x 624, 626-27 (10th Cir. 2014); Gee v. Pacheco, 627 F.3d
1178, 1189 (10th Cir. 2010); Scott v. Churchill, 377 F.3d 565,
569 (6th Cir. 2004).
11
Mr. Powell satisfies the first element.
administrative
grievances
is
a
The
filing of
constitutionally
protected
See Williams v. Meese, 926 F.2d 994, 998 (10th Cir.
activity.
1991).
However, where Plaintiff has difficulty stating a plausible
retaliation
claim
is
in
the
second
requirement.
The
only
responsive action Plaintiff alleges was a threat of retaliation
by
Defendant
Wright.
Plaintiff
does
not
allege
that
any
defendant actually retaliated or took adverse action in response
to
Plaintiff’s
lawsuit.
filing
of
grievances
or
plans
to
pursue
a
Not “every response to a prisoner's exercise of a
constitutional right gives rise to a retaliation claim.”
Dawes
v. Walker, 239 F.3d 489, 492–93 (2nd Cir. 2001), overruled on
other grounds by Swierkiewicz v. Sorema, N.A.,
(2002).
534 U.S. 506
A trivial or de minimis injury, or a complete lack of
injury as in this case, will not support a § 1983 retaliation
claim.
See Eaton v. Meneley, 379 F.3d 949, 955 (10th Cir. 2004).
While mere threats may support a retaliation claim in certain
circumstances,
it
is
difficult
to
make
the
where the only adverse “action” is a threat.
required
showing
See Markovick v.
Werholtz, No. 10-3257-SAC, 2012 WL 415456, at *4 (D. Kan. Feb.
9, 2012), quoting Strope v. Gibbens, 2003 WL 1906458, *5–*6 (D.
Kan. Apr. 17, 2003) (unpublished); see also Walker v. Spence,
No. CIVA07CV01848PABKMT, 2009 WL 3074612, at *9 (D. Colo. Sept.
12
18, 2009), and Teague v. Hood, No. 06–cv–01800–LTB–CBS, 2008 WL
2228905, at *10 (D. Colo. May 27, 2008).
Here, Plaintiff has
not made that showing.
Plaintiff fails to state a plausible claim for retaliation.
Motion to Appoint Counsel
Plaintiff has also filed a motion to appoint counsel.
#13.
Doc.
Having considered this motion, the Court finds it should
be denied 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).
“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,
1223
(10th
Cir.
2006),
Steffey v. Orman, 461
citing
Hill
v.
SmithKline
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.”
Id.,
citing
Boergermann, 57 F.3d 978, 979 (10th Cir. 1995).
whether
to
appoint
counsel,
the
court
should
Rucks
v.
In deciding
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 his claims.”
at 979; Hill, 393 F.3d at 1115.
13
Rucks, 57 F.3d
The Court has considered the
relevant factors and concludes that Plaintiff’s motion should be
denied at this juncture because it is not convinced that any of
the claims in the complaint have merit.
Summary
For the reasons discussed above, this 42 U.S.C. § 1983
action is subject to dismissal under 28 U.S.C. § 1915A(b) and 28
U.S.C. § 1915(e)(2)(B).
Accordingly,
the
Court
will
direct
Plaintiff to show cause why this matter should not be dismissed.
The failure to file a specific, written response waives de novo
review by the District Judge, see Thomas v. Arn, 474 U.S. 140,
148-53 (1985), and also waives appellate review of factual and
legal allegations.
Makin v. Colo. Dept. of Corrections, 183
F.3d 1205, 1210 (10th Cir. 1999).
If Plaintiff fails within the
time allotted to file a response, this action may be dismissed
without
further
notice.
In
addition,
Plaintiff’s
Motion
to
Appoint Counsel is denied.
IT IS THEREFORE ORDERED that within twenty (20) days of
receipt
of
this
order,
Plaintiff
shall
show
cause
to
the
Honorable Sam A. Crow why Plaintiff’s complaint should not be
dismissed.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Appoint
Counsel (Doc. #13) is denied without prejudice.
14
IT IS SO ORDERED.
DATED:
This
11th
day
of
August
2017
at
Kansas.
s/ David J. Waxse
DAVID J. WAXSE
U.S. Magistrate Judge
15
Kansas
City,
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