Powell v. Laurie et al
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,
JACK LAURIE, et al.,
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.
Court conducted a preliminary review of the complaint, dismissed
processing of the remainder of Plaintiff’s claims could not be
achieved without additional information (Doc. #10).
Crystal Martin filed a Martinez report on July 6, 2017 (Doc.
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.
Statutory Screening of Prisoner Complaints
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).
with any litigant, such as Plaintiff, who is proceeding in forma
determine its sufficiency.
See 28 U.S.C. § 1915(e)(2).
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
To survive this review, the plaintiff must plead “enough
facts to state a claim to relief that is plausible on its face.”
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.
Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th
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.
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).
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”).
Mr. Powell was apprehended on August 13, 2016, in
transported directly to a medical provider due to complications
with his blood sugar.
He was prescribed several medications,
AccuChecks prior to every meal.
Plaintiff was taken to the
Buchanon County Jail where he remained for six days.
there, the prescribed treatment was followed and Plaintiff did
not have further complications.
“[W]ithin the first couple of weeks” of his arrival at ACJ,
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
Plaintiff also mentioned his vision problems to
Plaintiff he would need to speak with the medical staff, and
denied by Defendants Travis Wright and Jack Laurie.
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
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.
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.
allegations as true.
However, the medical records largely do
not conflict with the complaint, but they do contain additional
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
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
“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).
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
information by Defendants Wright and Laurie.
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
punitive damages in the amount of $500,000.
complaint, it appeared to the Court that Plaintiff had failed to
state a claim for a constitutional violation.
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
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.
state a claim for an Eighth Amendment violation based on denial
exhibited “deliberate indifference to serious medical needs” of
Estelle v. Gamble, 429 U.S. 97, 104 (1976).
“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.
v. Garden, 430 F.3d 1302, 1304 (10th Cir. 2005).
“sufficiently serious,” and the inmate must show the presence of
a “serious medical need.”
Estelle, 429 U.S. at 104-05.
medical need is considered “sufficiently serious” if it “has
been diagnosed by a physician as mandating treatment.”
quotation marks omitted).
Because Plaintiff has been diagnosed
treatment, he meets the objective component of the “deliberate
“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.
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.”
Ramos v. Lamm, 639 F.2d 559, 575
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
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).
discontinued two medications and reduced the dosage of a third
indicate a difference of opinion as to treatment between the
medical providers at ACJ and the provider in Buchanon County,
not deliberate indifference to Plaintiff’s needs.
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
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
A diabetic eye exam was finally scheduled in June of
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.
Oxendine, 241 F.3d at
“The substantial harm requirement ‘may be satisfied by
lifelong handicap, permanent loss, or considerable pain.’”
v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005)(quoting Garrett v.
Stratman, 254 F.3d 946, 950 (10th Cir. 2001)).
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
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
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.
See Trentadue v. Integrity Committee, 501
Information Act in failing to provide documents requested by
Freedom of Information Act (FOIA), FOIA is a federal statute
that applies only to federal agencies.
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.
dismissal for failure to state a claim.
3. Count 7 - Retaliation claim
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
continuing to engage in that activity, and (3) that the adverse
constitutionally protected conduct.
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).
Mr. Powell satisfies the first element.
See Williams v. Meese, 926 F.2d 994, 998 (10th Cir.
However, where Plaintiff has difficulty stating a plausible
responsive action Plaintiff alleges was a threat of retaliation
defendant actually retaliated or took adverse action in response
Not “every response to a prisoner's exercise of a
constitutional right gives rise to a retaliation claim.”
v. Walker, 239 F.3d 489, 492–93 (2nd Cir. 2001), overruled on
other grounds by Swierkiewicz v. Sorema, N.A.,
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
See Eaton v. Meneley, 379 F.3d 949, 955 (10th Cir. 2004).
While mere threats may support a retaliation claim in certain
where the only adverse “action” is a threat.
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.
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.
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.”
Steffey v. Orman, 461
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
Boergermann, 57 F.3d 978, 979 (10th Cir. 1995).
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.
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.
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).
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
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
Appoint Counsel is denied.
IT IS THEREFORE ORDERED that within twenty (20) days of
Honorable Sam A. Crow why Plaintiff’s complaint should not be
IT IS FURTHER ORDERED that Plaintiff’s Motion to Appoint
Counsel (Doc. #13) is denied without prejudice.
IT IS SO ORDERED.
s/ David J. Waxse
DAVID J. WAXSE
U.S. Magistrate Judge
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