Washburn (ID 82688) v. Saline County Jail

Filing 19

NOTICE AND ORDER TO SHOW CAUSE: Plaintiff shall show cause as to why this case should not be dismissed for failure to state a claim for relief. The failure to file a timely response may result in the dismissal of this action without additional prior notice to the plaintiff. Show Cause Response due by 3/6/2018. Signed by U.S. District Senior Judge Sam A. Crow on 2/6/18. Mailed to pro se party Allen Dean Washburn by regular mail (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ALLEN DEAN WASHBURN,
Plaintiff,
v.

CASE NO. 17-3107-SAC

SALINE COUNTY JAIL, et al.,
Defendants.

NOTICE AND ORDER TO SHOW CAUSE
This matter is a civil rights action filed under 42 U.S.C. § 1983.
Plaintiff commenced this action while incarcerated. He proceeds pro
se and in forma pauperis.
Background
Because plaintiff alleged he could not identify individual
defendants and that the Saline County Jail (“SCJ”) would not return
his personal property, through which the prospective defendants could
be identified, the Court directed the preparation of a Martinez
report.1
Following the filing of that report, the Court has conducted an
initial screening of the complaint and enters the following order.
Statutory Screening Standards
The Court is required to screen complaints brought by a prisoner
seeking relief against a governmental entity or an officer or employee
of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss
a complaint, or any portion of it, if the plaintiff’s claims are
1

A Martinez report ensures that a factually sufficient record is developed in cases
involving pro se prisoners. See Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir. 1978).
The report “is not only proper, but may be necessary to develop a record sufficient
to ascertain whether there are any factual or legal bases for the prisoner’s claims.”
Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991).

legally frivolous or malicious, fail to state a claim upon which relief
may be granted, or seek monetary damages from a defendant who is immune
from such relief. 28 U.S.C. § 1915A(b)(1)-(2).
“To state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the United
States, and must show that the alleged deprivation was committed by
a person acting under color of state law.” West v. Atkins, 487 U.S.
42, 48 (1988)(citations omitted); Northington v. Jackson, 973 F.2d
1518, 1523 (10th Cir. 1992). A court must liberally construe a pro
se party’s pleadings and will apply “less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S.
89, 94 (2007). In addition, a court accepts all well-pleaded
allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910,
913 (10th Cir. 2006). However, “when the allegations in a complaint,
however true, could not raise a claim of entitlement to relief,”
dismissal is appropriate. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 558 (2007).
A pro se party’s “conclusory allegations without supporting
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).
“[A] plaintiff’s obligation to provide the ‘grounds’ of his
‘entitlement to relief’ requires “more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action.”
Twombly, 550 U.S. at 555 (citations omitted). The complaint’s “factual
allegations must be enough to raise a right to relief above the
speculative level” and “to state a claim to relief that is plausible
on its face.” Id. at 555, 570.
The Tenth Circuit Court of Appeals has explained “that, to state

a claim in federal court, a complaint must explain what each defendant
did to [the plaintiff]; when the defendant did it; how the defendant’s
action harmed [the plaintiff]; and what specific legal right the
plaintiff believes the defendant violated.” Nasious v. Two Unknown
B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). The court “will
not supply additional factual allegations to round out a plaintiff’s
complaint or construct a legal theory on a plaintiff’s behalf.”
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.
1997)(citations omitted).
The Tenth Circuit has pointed out that the Supreme Court’s
decisions in Twombly and Erickson gave rise to a new standard of review
for § 1915(e)(2)(B)(ii) dismissals.

See Kay v. Bemis, 500 F.3d 1214,

1218 (10th Cir. 2007)(citations omitted); see also Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009). As a result, courts now
must “look to the specific allegations in the complaint to determine
whether they plausibly support a legal claim for relief.” Kay, 500
F.3d at 1218 (citation omitted). Under the new standard, “a plaintiff
must ‘nudge his claims across the line from conceivable to
plausible.’” Smith, 561 F.3d at 1098 (citation omitted). “Plausible”
in this context does not mean “likely to be true,” but instead refers
“to the scope of the allegations in a complaint: if they are so general
that they encompass a wide swath of conduct, much of it innocent,”
then the plaintiff has not “nudged [his] claims across the line from
conceivable to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247
(10th Cir. 2008)(citing Twombly, 550 U.S. at 570).
Discussion
Plaintiff’s complaint alleges that he was arrested four days
after leg surgery and booked into the SCJ. He claims that while he

was incarcerated there, his bandages, brace, and medications were
taken away, that he was placed in an unsanitary cell, and that he was
not allowed to see a physician. He later tested positive for MRSA and
underwent antibiotic treatment and another surgical procedure. He
seeks monetary damages (Doc. #6).
Plaintiff’s claims primarily allege inadequate medical care
during his incarceration at the SCJ. Because he was a pretrial detainee
during the relevant time, his right to adequate medical care was
guaranteed by the Due Process Clause of the Fourteenth Amendment.
Oxendine v. Kaplan, 241 F.3d 127, 1275 n. 6 (10th Cir. 2001).
Under the Due Process Clause, “pretrial detainees are … entitled
to the degree of protection against denial of medical attention which
applies to convicted inmates” under the Eighth Amendment. Garcia v.
Salt Lake Cty., 768 F.2d 303, 307 (10th Cir. 1985).
Under the Eighth Amendment, prison officials “must ensure that
inmates receive adequate food, clothing, shelter, and medical care,
and must ‘take reasonable measures to guarantee the safety of the
inmates.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994)(quoting Hudson
v. Palmer, 468 U.S. 517, 526-27 (1984)).
“[D]eliberate indifference to serious medical needs of prisoners
constitutes

the

‘unnecessary

and

wanton

infliction

of

pain’

proscribed by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97,
104-05 (1976). This standard has both objective and subjective
components. Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir.
2000)(citing Estelle, id.).
Under the objective portion of the analysis, a medical need is
serious if it is “one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person

would easily recognize the necessity for a doctor’s attention.” Ramos
v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980)(internal quotation marks
and citations omitted).
Under the subjective portion of the analysis, the defendant
prison 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.” Farmer, 511 U.S. at 837.
Within this framework, “an inadvertent failure to provide
adequate medical care” does not violate a prisoner’s constitutional
rights. See Estelle, 429 U.S. at 105-06 (“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.”). Likewise, a difference in opinion between a prisoner
and medical personnel is insufficient to state a claim for relief.
Smart v. Villar, 547 F.2d 112, 114 (10th Cir. 1976); Thompson v.
Gibson, 289 F.3d 1218, 1222 (10th Cir. 2002). Finally, a delay in
providing medical care violates the Constitution only where that delay
resulted in substantial harm. Oxendine, 241 F.3d at 1276 (quoting
Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000)).
Here, the Martinez report reflects that plaintiff was held in
the SCJ from the evening of May 24, 2016, until the afternoon of May
26, 2016. (Doc. #17, Ex. A., pp. 1 and 50). Upon admission to the SCJ,
plaintiff advised staff of his recent surgery; intake records noted
that his leg was bandaged and that he used crutches (id., p. 12). On
the night of May 24, 2016, plaintiff reported to staff that he needed
to see a nurse and stated he was concerned about a possible infection
(id., p. 14).
During his stay, jail nursing staff gave plaintiff antibiotic

ointment for his surgical incision, an ice pack, pain medication, and
an extra mattress to roll up and use to elevate his leg. He was also
moved to a cell with better lighting (id.). Jail records state that
plaintiff removed his bandages (id.).
Jail staff conducted frequent medical checks and noted that
plaintiff sometimes was noncompliant with the direction to elevate
his

leg

(id.,

pp.

24-33).

It

also

appears

that

plaintiff’s

prescription medications were held in the jail clinic cabinet, and
notes show that he was noncompliant with prescription directives,
having consumed 53 tablets in less than 48 hours (id., p. 53).
Jail staff also sought copies of plaintiff’s recent medical
records, but he was transferred from the facility before the records
were available (Ex. B., affidavit of Charlene Garman).
The records from the SCJ show that plaintiff was provided with
ongoing medical care during his brief incarceration there that
included antibiotic ointment, pain medication, and an additional
mattress. While plaintiff may have desired additional care, or
different care, the information on this record does not suggest the
type of deliberate indifference necessary to support a claim for
relief under § 1983. Jail staff, including nursing staff, evaluated
and addressed plaintiff’s physical condition and monitored him
frequently.
Plaintiff’s allegation of an infection arising from the care he
received at the SCJ is undermined by the timetable shown here, namely,
that he alleged an infection at the time of his admission. Finally,
plaintiff’s bare claim that his cell was unsanitary is a conclusory
claim that does not state a claim for relief.

Having considered this material, the Court directs plaintiff to
show cause why this matter should not be dismissed for failure to state
a claim upon which relief may be granted. Plaintiff’s response may
not rest on generalizations; rather, he must provide specific factual
allegations.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff is granted to
and including March 6, 2018, to show cause why this matter should not
be dismissed for failure to state a claim for relief. The failure to
file a timely response may result in the dismissal of this action
without additional prior notice to the plaintiff.
IT IS SO ORDERED.
DATED:

This 6th day of February, 2018, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge