Dickerson (ID 39543) v. Corizon Health et al

Filing 6

MEMORANDUM AND ORDER ENTERED: The Clerk of Court shall serve defendants James Heimgartner, Doug Burris, and Deane W. Donley under the e-service pilot program in effect with the Kansas Department of Corrections. The Clerk of the Court shall prepare summons to be served pursuant to Rule 4(c)(3) on defendants Corizon Health and the State of Kansas by the U.S. Marshal at no cost to Plaintiff. The Clerk of the Court shall prepare waiver of service forms for the remaining defendants, pursuant to Ru le 4(d) of the Federal Rules of Civil Procedure, to be served at no cost to Plaintiff absent a finding by the Court that Plaintiff is able to pay such costs. The Clerk of Court shall enter the Kansas Department of Corrections as an interested party on the docket for the limited purpose of preparing the Martinez Report. Upon the filing of that report, KDOC may move for termination from this action. Signed by U.S. Senior District Judge Sam A. Crow on 04/11/18. Mailed to pro se party Robert Lee Dickerson by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ROBERT LEE DICKERSON,
Plaintiff,
v.

CASE NO. 18-3066-SAC

CORIZON HEALTH, et al.,
Defendants.

MEMORANDUM AND ORDER
Plaintiff, a state prisoner appearing pro se and in forma pauperis, filed this civil rights
complaint pursuant to 42 U.S.C. § 1983. Mr. Dickerson is an inmate at El Dorado Correctional
Facility in El Dorado, Kansas (“EDCF”). He alleges that his Eighth Amendment rights are being
violated by Defendants’ deliberate indifference to his medical needs. Mr. Dickerson further
alleges a violation of the Americans with Disabilities Act (“ADA”). Plaintiff names as defendants:
Corizon Health; the State of Kansas1; Dr. Corbier, Regional Medical Director for Corizon; M.
Einerson, RN for Corizon Health; James Heimgartner, former Warden of EDCF; Doug Burris,
designee of the Kansas Secretary of Corrections; Deane W. Donley, Deputy Warden of Programs,
EDCF; and C. Delperdang, RN-BSN, Assistant Director of Nursing for Corizon Health.

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The State of Kansas is not a proper defendant to a § 1983 action. However, Plaintiff also brings an
ADA claim. In some instances, the ADA abrogates state sovereign immunity. See U.S. v. Georgia, 546
U.S. 151, 159 (2006). The Court cannot say with certainty at this point that the State of Kansas must be
dismissed.
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Mr. Dickerson is 49 years old and has an extensive history of health problems. He has
Hepatitis-C and had been receiving treatment from the University of Kansas Liver Transplant
Program for end-stage cirrhosis of the liver since 1998. He was treated for liver cancer in 2007
and 2009, he received a pacemaker in 2010, and he suffered a stroke in 2014.
In 2016, Plaintiff was sentenced to 216 months on a conviction for aggravated indecent
liberties with a child and was sent to EDCF. Upon his arrival at EDCF in July of 2016, he informed
the intake nurse of his medical history. He also informed her of the pain medication he had been
prescribed due to chronic abdominal pain resulting from his liver failure. Apparently, he had some
blood work done as part of the intake process, and a Corizon nurse later told him that his blood
work did not show he had cirrhosis.
Within two days of his arrival at EDCF, Mr. Dickerson submitted a sick call request
because he was feeling poorly. He was told to take “some pill” by a nurse. Soon after, he had to
be transported by ambulance to the hospital to be treated for an ileus and acute renal failure.
Upon his return to EDCF, he was held overnight on the medical unit, then returned to the
general population without seeing a doctor. Plaintiff began submitting sick calls because he was
in a lot of pain. About a month after his hospitalization, a Corizon employee asked him to sign a
medical release authorizing Corizon to get his medical records from KU. He alleges he refused to
sign because the release only asked for records about his HCV and pacemaker going back to “2000
something.” The nurse refused to change the release to request all of his records from 1997
forward.
In response to grievances, Mr. Dickerson discovered Corizon had placed him on “chronic
care” and placed a “Medical Level 5” on him. When Plaintiff continued to complain of pain and

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difficulty breathing, Corizon staff gave him a cane and later a wheelchair. He alleges he is given
pain medication only for short periods of time.
Plaintiff complains Defendants have not provided him with proper treatment for his endstage cirrhosis, that he has not been treated by qualified medical providers, and that the pain he
suffers as a result of his medical condition has been largely ignored by Defendants. He seeks an
injunction ordering Corizon to have Plaintiff seen by the liver transplant team at KU and to follow
the directions resulting from that consult. Plaintiff also seeks compensatory damages.
The Court finds that the proper processing of Plaintiff’s claims cannot be achieved without
additional information from appropriate officials of the El Dorado Correctional Facility. See
Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978); see also Hall v. Bellmon, 935 F.2d 1106 (10th Cir.
1991). Accordingly, the Court orders the appropriate officials of EDCF to prepare and file a

Martinez report. Once the report and Defendants’ answers have been received, the Court can
properly screen Plaintiff’s claims under 28 U.S.C. § 1915.
IT IS THEREFORE ORDERED:
(1)

The Clerk of Court shall serve defendants James Heimgartner, Doug Burris, and

Deane W. Donley under the e-service pilot program in effect with the Kansas Department of
Corrections. The Clerk of the Court shall prepare summons to be served pursuant to Rule 4(c)(3)
on defendants Corizon Health and the State of Kansas by the U.S. Marshal at no cost to Plaintiff.
The Clerk of the Court shall prepare waiver of service forms for the remaining defendants, pursuant
to Rule 4(d) of the Federal Rules of Civil Procedure, to be served at no cost to Plaintiff absent a
finding by the Court that Plaintiff is able to pay such costs.

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(2)

The report required herein shall be filed no later than sixty (60) days from the date

of this order, and Defendants’ answers shall be filed within sixty (60) days following receipt of
that report by counsel for Defendants or as set forth in the waiver of service, whichever is later.
(3)

Officials responsible for the operation of the El Dorado Correctional Facility 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; and
c.

To determine whether other like complaints, whether pending in this Court

or elsewhere, are related to this complaint and should be considered together.
(4)

Upon completion of the review, a written report shall be compiled which shall be

attached to and filed with the defendants’ answers or responses 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. Any recordings related to Plaintiff’s claims shall also be included.
(5)

Authorization is granted to the officials of the El Dorado Correctional Facility to

interview all witnesses having knowledge of the facts, including the plaintiff.
(6)

No answer or motion addressed to the complaint shall be filed until the Martinez

report required herein has been prepared.
(7)

Discovery by Plaintiff shall not commence until Plaintiff has received and reviewed

Defendants’ answers or responses 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).

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IT IS FURTHER ORDERED that the Clerk of Court shall enter the Kansas Department
of Corrections as an interested party on the docket for the limited purpose of preparing the Martinez
Report ordered herein. Upon the filing of that report, KDOC may move for termination from this
action.

Copies of this order shall be transmitted to Plaintiff, to Defendants, and to the Attorney
General for the State of Kansas.

IT IS SO ORDERED.
DATED: This 11th day of April, 2018, at Topeka, Kansas.

s/_Sam A. Crow_____
SAM A. CROW
U.S. Senior District Judge

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