Ranes (10514) v. Murphy et al

Filing 13

MEMORANDUM AND ORDER: IT IS ORDERED Counts 2 and 3 of the amended complaint are dismissed. The court denies 9 Motion for Subpoena of Body Cameras and Pod Cameras; grants 10 Motion for subpoena of kiosk grievances and medical request; denies 11 Motion to Appoint Counsel. Signed by District Judge Sam A. Crow on 2/5/2019. Mailed to Plaintiff Chad Eugene Ranes by regular mail. (ht)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CHAD EUGENE RANES,
Plaintiff,
v.

CASE NO. 17-3196-SAC

BRIAN MURPHY, et al.,
Defendants.

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s amended complaint
(Doc. #8). Plaintiff commenced this action under 42 U.S.C. § 1983 while
held at the Allen County Law Enforcement Center, Iola, Kansas. He has
since reported a change of address to the clerk of the court.
Background
On March 3, 2018, the Court issued a Memorandum and Order
directing plaintiff to submit an amended complaint to correct the
deficiencies identified by the Court and to show cause why the matter
should not be dismissed.
The Court’s order advised plaintiff that he must provide specific
factual support for his claims that he was denied adequate medical
including the nature of his medical need, the response of officials
to his complaints, and any harm he suffered. Concerning his claim that
jail guards had opened his legal mail before delivering it to him,
the order advised plaintiff that he must identify a cognizable injury
arising from that claim and must identify personal participation by
a named defendant or defendants. Likewise, the Court advised plaintiff
that he must identify personal participation by a named defendant in
the alleged deprivation of mental health care.

The amended complaint
The amended complaint contains three claims for relief:
(1)

Plaintiff states that in 2015 he complained of a hernia. He
claims he did not receive medical treatment for the condition
until he commenced this action, and that he then was provided
surgical repair. Plaintiff alleges he now has two additional
hernias but has been given only pain medication.

(2)

Plaintiff complains that he receives his legal motions from
the state district court clerk without envelopes.

(3)

Plaintiff complains that after he expressed suicidal ideation
to a corrections officer, he was placed in a suicide suit for
30 minutes and spoke with a counselor by a computer connection.
Although the counselor advised the guard that plaintiff should
speak to a counselor once a week, no such meetings took place.

As relief, the amended complaint seeks repair of plaintiff’s
hernias, monetary damages for pain and suffering, and to have legal
mail opened in his presence. (Doc. #8, p. 6.)
Analysis
As explained in the Court’s previous order, the standard for
evaluating claims of inadequate medical care under the Eighth
Amendment is “deliberate indifference to serious medical needs.”
Estelle v. Gamble, 429 U.S. 97, 104 (1976). This standard has both
objective and subjective components. First, a plaintiff must
establish the existence of a medical need that is “seriously serious.”
Farmer v. Brennan, 511 U.S. 825, 834 (1994). Second, the defendant
must show that the defendants knew of and disregarded “an excessive
risk to [the plaintiff’s] health and safety.” Id. at 837.
The courts have addressed claims related to the treatment of

hernia complaints on multiple occasions. Generally, when prison
officials treat minor hernias with care such as medical evaluation,
hernia belts, activity restrictions, and pain medication, courts have
found that the prisoner has no claim for relief; however, where
officials fail to take any reasonable action or to take any action
at all, courts have found that a prisoner states a claim for relief.
See McKinney v. Col. Dep’t of Corr., 2016 WL 796234 (D. Col. Mar. 1,
2016)(gathering cases).
At this point, the severity of plaintiff’s condition is unclear,
and there is no record before the Court of what, if any, medical
attention he received prior to the surgery he received in 2017. The
Court finds that this claim requires a responsive pleading to allow
the proper evaluation of its merits.
Next, plaintiff claims that his legal mail has been opened
outside his presence. Although plaintiff provides a detailed
statement of when his legal mail was handled, he does not provide any
allegations of a cognizable injury resulting from the processing of
his legal mail. As the Court explained in its previous order, plaintiff
must identify a cognizable injury to proceed on a claim that arises
from the handling of his legal mail. See Lewis v. Casey, 518 U.S. 343,
349-55 (1996)(requiring a showing of an impairment to attempts to
pursue a viable legal claim to state a claim for relief) and Gee v.
Pacheco, 627 F.3d 1178, 1191 (10th Cir. 2010)(requiring prisoner to
show “actual injury from interference with his access to the courts
– that is, that the prisoner was frustrated or impeded in his efforts
to pursue a nonfrivolous claim concerning his conviction or his
conditions of confinement”). While the Court does not condone the
practice of opening legal mail outside a prisoner’s presence,

plaintiff’s claim must be dismissed due to his failure to suggest any
actual injury resulted.
Third, plaintiff claims that he was not provided adequate medical
care for mental health needs during his incarceration. Plaintiff
describes an event in which he advised staff members of a crisis. He
was immediately placed in a restraint suit and was able to speak with
a counselor through the jail’s computer system. Plaintiff complains
that although that counselor recommended that he receive additional,
weekly contact with mental health personnel, jail personnel did not
implement that recommendation.
This claim also is subject to the two-part Eighth Amendment
analysis requiring the plaintiff to establish both an objectively
serious condition and a subjective showing that defendants both knew
of and disregarded the risk to the plaintiff.
The Court has carefully considered the amended complaint and
concludes that plaintiff has not identified any specific facts or
injury to support a claim for relief arising from the failure to
provide weekly counseling as recommended. Plaintiff states that
unnamed guards never provided the weekly counseling recommended by
the counselor (Doc. #8, p. 5); however, the amended complaint
identifies no specific allegations of acts or omissions by a named
defendant, any grievance concerning this matter, nor any resulting
injury from the failure to provide additional counseling. The Court
concludes that this claim also is subject to dismissal.
Motions
Three motions filed by plaintiff are pending: (1) his motion to
subpoena body cameras and pod cameras (Doc. #9); (2) his motion for
subpoena of kiosk grievances and medical requests (Doc. #10); and (3)

his motion to appoint counsel (Doc. #11).
Plaintiff seeks records from body and pod cameras used in the
jail on the ground it will show him receiving legal mail without
envelopes. Because the Court has determined that plaintiff’s claim
concerning the handling of his legal mail is subject to dismissal,
the Court denies this motion.
Next, plaintiff requests the grievances and medical requests
that he filed on the jail kiosk. The Court grants this request and
directs defendants to incorporate that material into the report
ordered elsewhere in this order.
Third, plaintiff requests the appointment of counsel. There is
no constitutional right to the appointment of counsel in a civil
matter. Carper v. Deland, 54 F.3d 613, 616 (10th Cir. 1995); Durre v.
Dempsey, 869 F.2d 543, 547 (10th Cir. 1989). Rather, the decision
whether to appoint counsel in a civil action lies in the discretion
of the district court. Williams v. Meese, 926 F.2d 994, 996 (10th Cir.
1991). The party seeking the appointment of counsel has the burden
to convince the court that the claims presented have sufficient merit
to warrant the appointment of counsel. Steffey v. Orman, 461 F.3d 1218,
1223 (10th Cir. 2016)(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 movant] in presenting his strongest
possible case, [as] the same could be said in any case.” Steffey, 461
F.3d at 1223 (citing Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir.
1995)). The Court should 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.” Rucks, 57 F.3d at 979.

The Court has considered the record and declines to appoint
counsel at this time. Plaintiff is able to explain the nature of his
claims, and the issues do not appear to be unusually complex. However,
the Court will reconsider the request for counsel after the
development of the record.
Conclusion
For the reasons set forth, the Court dismisses plaintiff’s claims
in Counts 2 and 3, alleging violations of his rights arising from the
opening of his legal mail and the failure to provide weekly mental
health counseling. Plaintiff’s claim requesting injunctive relief to
order the opening of his legal mail in his presence is denied as moot
due to his release.
The Court finds the proper processing of plaintiff’s remaining
claim alleging inadequate medical care for hernias cannot be achieved
without additional information from appropriate officials of the
Allen County Jail. See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978).
IT IS, THEREFORE, BY THE COURT ORDERED Counts 2 and 3 of the
amended complaint are dismissed.
IT IS FURTHER ORDERED plaintiff’s motion for subpoena of body
cameras and pod cameras (Doc. #9) is denied.
IT IS FURTHER ORDERED plaintiff’s motion for subpoena of kiosk
grievances and medical request (Doc. #10) is granted.
IT IS FURTHER ORDERED plaintiff’s motion to appoint counsel (Doc.
#11) is denied.
IT IS FURTHER ORDERED the clerk of the court shall prepare a
waivers of service form for defendants Murphy, Jewel, and Thompson
pursuant to Rule 4(d) of the Federal Rules of Civil Procedure, to be
served upon these defendants at no cost to plaintiff. The report

required herein shall be filed no later than sixty (60) days from the
date of this order, unless the time is extended by the Court. The answer
or other responsive pleading shall be filed thirty (30) days after
the Martinez report is filed.
Officials responsible for the operation of the Allen County Jail
are directed to undertake a review of the subject matter of the
complaint:
a. To ascertain the facts and circumstances;
b. To consider whether any action can and should be taken
by the institution to resolve the subject matter of the
complaint;
c. To determine whether other like complaints, whether
pending in this court or elsewhere, are related to this
complaint and should be considered together.
(2)

Upon completion of the review, a written report shall be
compiled which shall be attached to and filed with the
defendants’ answer or response to the complaint. Statements
of all witnesses shall be in affidavit form. Copies of
pertinent rules, regulations, official documents, and,
wherever appropriate, the reports of medical or psychiatric
examinations shall be included in the written report. In
addition, the grievances filed by plaintiff and requested
in his motion for subpoena of kiosk grievances and medical
request (Doc. #10) shall be included in the report.
Authorization is granted to the officials of the Allen
County Jail to interview all witnesses having knowledge of

the facts, including the plaintiff.
(3)

No answer or motion addressed to the complaint shall be
filed until the Martinez report required herein has been
prepared.

(4)

Discovery by plaintiff shall not commence until plaintiff
has received and reviewed defendants’ answer or response
to the complaint and the report ordered herein. This action
is

exempted

from

the

requirements

imposed

under

Fed.R.Civ.P. 26(a) and 26(f).
IT IS SO ORDERED.
DATED:

This 5th day of February, 2019, at Topeka, Kansas.

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