Slaughter v. Johnson County Adult Detention Center et al

Filing 3

NOTICE AND ORDER TO SHOW CAUSE ENTERED: Plaintiff's motion to proceed in forma pauperis 2 is granted. On or before December 7, 2017, plaintiff shall show cause why this matter should not be dismissed. The failure to file a timely response may result in the dismissal of this action without prejudice and without additional prior notice to the plaintiff. Signed by U.S. Senior District Judge Sam A. Crow on 11/07/17. Mailed to pro se party Abron D. Slaughter by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ABRON D. SLAUGHTER,
Plaintiff,
v.

CASE NO. 17-3147-SAC

JOHNSON COUNTY ADULT DETENTION CENTER, et al.,
Defendants.

NOTICE AND ORDER TO SHOW CAUSE

This matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff proceeds pro se and seeks leave to proceed in forma
pauperis.
The motion to proceed in forma pauperis
The Court has examined the limited financial reports available,
which show that plaintiff has a $40.00 balance in his checking account
and a $5.00 savings balance. The Court concludes plaintiff lacks the
means to pay the $400.00 filing fee and therefore grants leave to
proceed in forma pauperis.
Screening
In screening, a court liberally construes pleadings filed by a
party proceeding pro se and applies “less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S.
89, 94 (2007). However, the in forma pauperis statute, 28 U.S.C. 1915,
provides in part, that the court may dismiss a matter if, at any time,
it finds the action is frivolous or malicious, fails to state a claim
for relief, or seeks monetary damages form a defendant who is immune
from that relief. 28 U.S.C. § 1915(e)(2)(B).

To state a claim for relief under Section 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, 48-49 (1988)(citations omitted). “Section 1983 does not
allow plaintiffs to create a federal case out of every violation of
state common law ... the first inquiry in any § 1983 suit … is whether
the plaintiff has been deprived of a right ‘secured by the Constitution
and laws.’” Margheim v. Buljko, 855 F.3d 1077, 1084 (10th Cir.
2017)(internal cites and alterations omitted).
To avoid a dismissal for failure to state a claim, a complaint
must set out factual allegations that “raise a right to relief above
the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007). The court accepts the well-pleaded allegations in the
complaint as true and construes them in the light most favorable to
the plaintiff. Id. However, “when the allegations in a complaint,
however, true, could not raise a [plausible] claim of entitlement to
relief,” the matter should be dismissed. Id. at 558. A court need not
accept “[t]hreadbare recitals of the elements of a cause of action
supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Rather, “to state a claim in federal court, a
complaint must explain what each defendant did to [the pro se
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 Tenth Circuit has observed that the U.S. Supreme Court’s
decisions in Twombley and Erickson set out a new standard of review

for dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii) dismissals. See
Key v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007)(citations omitted).
Following those decisions, courts “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 (quotation marks and internal
citations omitted). A plaintiff “must nudge his claims across the line
from conceivable to plausible.” Smith v. United States, 561 F.3d 1090,
1098 (10th Cir. 2009). In this context, “plausible” 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

[the]

claims

across

the

line

from

conceivable to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247
(citing Twombly at 1974).
At all times relevant to the appeal, plaintiff was a prisoner
at the Johnson County Adult Detention Center. The complaint alleges
that in August 2015, plaintiff slipped and fell on food in a hallway
floor at the JCADC. Deputy Pierucci, a defendant in this action, called
medical staff to the scene. Defendant Amanda, a nurse, responded to
the call and offered plaintiff pain medication. Plaintiff complains
that medical staff did not follow protocol by calling an ambulance,
instead examining him, placing him on a prison mattress, and removing
him to his cell. Several hours later, an X-ray technician came to take
X-rays, but plaintiff complains that he did not “X-ray [him] fully”
(Doc.

#1,

p.

4).

Plaintiff

complains

this

medical

care

was

constitutionally inadequate, and he claims that defendants Howell,
Wiley, Dvorak, Mailand, Campbell, and Rector subsequently interfered
with his use of the grievance process by rejecting interruption, and
delaying his grievances, allegedly to conceal wrongdoing.

The Court has carefully considered the complaint and has
identified the following deficiencies:
First, to the extent plaintiff alleges negligence in the
condition that led him to fall, namely, food on a hallway floor, he
does not state a claim for relief under Section 1983. “A ‘slip and
fall’, without more, does not amount to cruel and unusual punishment….
Remedy for this type of injury, if any, must be sought in state court
under traditional tort law principles.” Reynolds v. Powell, 370 F.3d
1028 (10th Cir. 2004)(quoting Mitchell v. West Virginia, 554 F.Supp.
1215,

1216-17

(N.D.W.Va.

1983)).

Plaintiff’s

allegations

of

negligence must be presented in a state court action.
Next, plaintiff’s claim of inadequate medical care must be
evaluated under the Eighth Amendment 1 . An official’s “deliberate
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 (1976)(citation omitted).
The standard of deliberate indifference has both objective and
subjective components. The objective component requires a showing
that the deprivation is “sufficiently serious.” Farmer v. Brennan,
511 U.S. 825, 834 (1994)(quotation omitted). A medical need meets this
standard “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.”
Sealock v. Colorado, 218 F.2d 1205, 1209 (10th Cir. 2000).
The subjective component is satisfied by showing that “a prison
1

It is not clear whether plaintiff was a pretrial detainee or a convicted prisoner
at the time of the incident. If he was in pretrial detention, his claim arises under
the Fourteenth Amendment. However, the Eighth Amendment nevertheless provides the
benchmark for analyzing his claims concerning medical care. Craig v. Eberly, 164
F.3d 490, 495 (10th Cir. 1998).

official knows of and disregards an excessive risk to inmate health
or safety.” Id. (quotation omitted). The defendant 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.” Riddle v. Mondragon, 83 F.3d 1197, 1204 (10th Cir.
1996)(quotation omitted).
The plaintiff’s allegations show that immediately after he fell,
medical staff arrived to assess his condition. He was offered pain
medication and was stabilized on a mattress for transport to his cell.
Within a few hours, he was X-rayed by a technician. While plaintiff
was dissatisfied with the care he received and compares it to
unidentified protocols, it is clear he received prompt medical care.
See Smart v. Villar, 547 F.2d 112 114 (10th Cir. 1976)(where there
is evidence of examinations, diagnoses, and medication, it cannot be
said that there was deliberate indifference). Likewise, it is settled
law that a prisoner’s difference of opinion with medical staff
concerning the appropriate treatment is insufficient to state a claim
for relief under Section 1983. See Toler v. Troutt, 631 Fed.Appx. 545,
547 (10th Cir. 2015)(“The prisoner’s right is to medical care – not
to the type or scope of medical care he personally desires.”) Finally,
even medical malpractice against a prisoner does not state a claim
for relief under Section 1983. See Estelle v. Gamble, 429 U.S. at 106
(“Medical malpractice does not become a constitutional violation
merely because the victim is a prisoner.”)
Having considered plaintiff’s account of the medical care he
received, the Court concludes he has failed to state a claim for relief
under the governing legal standards. While his condition after his
fall was sufficiently serious, the complaint does not suggest that

he was treated with deliberate indifference. At most, plaintiff did
not receive the medical care he desired.
Finally, plaintiff broadly alleges interference and delay with
his access to grievances at the JCADC. Not only does he fail to
specifically

identify

the

acts

or

omissions

involved,

these

allegations do not state a claim for relief, as a prisoner has no
independent constitutional right to a grievance procedure. See
Soboroff v. Doe, 569 Fed.Appx. 606, 610 (10th Cir. 2014)(federal
Bureau of Prisons’ grievance procedure not a constitutional right);
Von

Hallcy

v.

Clements,

519

Fed.Appx.

521,

523

(10th

Cir.

2013)(challenge to Colorado state prisons’ grievance procedure
denied; finding no right to state grievance procedure).
Order to Show Cause
For the reasons set forth, the Court directs plaintiff to show
cause why this matter should not be dismissed for failure to state
a claim for relief.
IT IS, THEREFORE, BY THE COURT ORDERED that plaintiff’s motion
to proceed in forma pauperis (Doc. #2) is granted.
IT IS FURTHER ORDERED that on or before December 7, 2017,
plaintiff shall show cause why this matter should not be dismissed
for the reasons set forth in this order. The failure to file a timely
response may result in the dismissal of this action without prejudice
and without additional prior notice to the plaintiff.
IT IS SO ORDERED.
DATED:

This 7th day of November, 2017, at Topeka, Kansas.

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