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,