Weiss v. Easter et al

Filing 26

ORDER: Plaintiff is granted until June 21, 2019, in which to request voluntary dismissal of this action if he intends to pursue his claim in state court. Signed by District Judge Sam A. Crow on 5/31/2019. Mailed to pro se party Chad Edward Weiss by regular mail. (mls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CHAD EDWARD WEISS,
Plaintiff,
v.

CASE NO. 18-3112-SAC

JEFF EASTER, et al.,
Defendants.
ORDER
Plaintiff brings this pro se civil rights action under 42 U.S.C. § 1983. The Court granted
Plaintiff’s motion to proceed in forma pauperis on June 18, 2018. (Doc. 6.) On March 13, 2019,
the Court dismissed this matter without prejudice under Fed. R. Civ. P. 41(b). (Doc. 19.) On
April 24, 2019, the Court entered an Order (Doc. 24) granting Plaintiff’s motion to reopen.
Plaintiff claims he was denied proper medical care during his detention at the Sedgwick
County Jail in Wichita, Kansas. On April 24, 2019, Plaintiff filed an Amended Complaint
(Doc. 25) in which he states “amend this from federal to state court because this is a medical
malpractice suit. I don’t know how to.” (Doc. 25, at 2.)

Because this Court does not transfer

cases to state court, the Court will give Plaintiff an opportunity to voluntarily dismiss this action
if he intends to pursue a state court action.
The Eighth Amendment prohibits “deliberate indifference to a prisoner’s serious illness
or injury.” Estelle v. Gamble, 429 U.S. 97, 104–05 (1976). However, a claim of medical
malpractice lacks constitutional significance, and instead is a tort claim that must be pursued in
the state courts. See id. at 105–106 (a negligence claim does not state a valid Eighth Amendment
claim and medical malpractice does not become a constitutional violation merely because the
victim is a prisoner).

IT IS THEREFORE ORDERED THAT Plaintiff is granted until June 21, 2019, in
which to request voluntary dismissal of this action if he intends to pursue his claim in state court.
IT IS SO ORDERED.
Dated in Topeka, Kansas, on this 31st day of May, 2019.
s/ Sam A. Crow
Sam A. Crow
U.S. Senior District Judge