Weiss v. Easter et al

Filing 28

MEMORANDUM AND ORDER ENTERED: The clerk of the court shall prepare waiver of service forms for Defendants, pursuant to Rule 4(d) of the Federal Rules of Civil Procedure, to be served upon Defendants at no cost to Plaintiff. The report required here in 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. Signed by U.S. Senior District Judge Sam A. Crow on 07/12/19. Mailed to pro se party Chad Edward Weiss by regular mail. (smnd)

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.
MEMORANDUM AND ORDER
Plaintiff, a state prisoner appearing pro se and in forma pauperis, filed this civil rights
complaint under 42 U.S.C. § 1983, alleging that his constitutional rights were violated while he
was housed at the Sedgwick County Jail in Wichita, Kansas (“SCJ”). Plaintiff filed his Second
Amended Complaint (Doc. 27) (“SAC”) on June 18, 2019. This matter is before the Court for
screening of Plaintiff’s SAC.
I. Nature of the Matter before the Court
In the single Count of his SAC, Plaintiff alleges that he was denied proper medical care
in violation of his Eighth and Fourteenth Amendment rights. Plaintiff alleges that he arrived at
the SCJ on January 2, 2018, escorted by Deputy Jamerson. Jamerson informed the booking
deputy, staff and Defendant LPN Ireland that Plaintiff had injuries to his head and jaw, with
stitches in both. LPN Ireland examined Plaintiff and could see the four to five-inch indention in
his skull with stiches, and his swollen jaw with stiches. Ireland made a call and three physicians
(named as Defendants as Person 1, 2, and 3) arrived to examine Plaintiff. Throughout the
examination, Plaintiff complained of the pain in his head and the bone fragments in his brain.
He complained of pain so severe he felt as if he was “going to die.” The physicians left, and

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Defendant Ireland got on the computer and wrote that Plaintiff “has no physical injuries.”
Ireland then had deputies escort Plaintiff to a suicide observation cell where Plaintiff was
stripped and made to sleep on a steel bed with no mattress. On January 3, 2018, while in the
suicide observation cell, Plaintiff was seen by a mental health provider and released to an open
dorm.
Plaintiff wrote a sick call for medical attention on January 3, 2018, and was told by LPN
Laura that he was scheduled to be seen on January 10, 2018. Plaintiff wrote a second sick call
on January 11, 2018, and corresponded with staff regarding the sick call request. On January 24,
2018, Plaintiff was seen by a physician and received a head x-ray. On January 25, 2018,
Plaintiff wrote a sick call request, seeking the results of his x-ray. On January 28, 2018,
Defendant Nurse Shana responded and scheduled Plaintiff for follow up on February 15, 2018,
for a chart review, and to determine a plan. After the failure to schedule the follow up for
Plaintiff, he wrote another sick call on February 22, 2018, and was told by Defendant LPN
Veronica that he “was scheduled for follow up with Dr.” At the rescheduled follow up, Plaintiff
spoke with Defendant Dr. Stopp, who stated that his x-ray came back abnormal and that Dr.
Stopp was ordering a CT scan. Approximately seven days later, Plaintiff was taken to Wesley
Hospital Imaging Center for a CT scan of his head.
Plaintiff was sent to Dr. Moufarrj, neurologist, who advised plaintiff that there were
numerous bone fragments more than an inch and a half long in Plaintiff’s brain and that it was
Plaintiff’s choice regarding whether or not to have the surgery to remove the bone fragments.
Plaintiff told Dr. Moufarrj that he did want them removed, and Dr. Moufarrj indicated that he
would schedule Plaintiff for the surgery. On April 3, 2018, Plaintiff advised the clinic at SCJ

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and CCS that he wanted the surgery. Defendant Denise, Director of Nursing, replied that Dr.
Stopp said that it wound not be approved to move forward with the surgery.
Plaintiff alleges that Defendants LPN Laura, LPN Shana, LPN Jennifer, LPN Veronica,
and RN Kim, all violated his rights by their handling of his sick call requests. Plaintiff alleges
that Defendants Denise, Director of Nursing, and Dr. Stopp, interfered with the specialist’s
recommendation for surgery and refused to approve the surgery.

Plaintiff alleges that

Defendants CCS, the clinic liaison, Sgt. Tucker, Lt. Woodson, D2134, LPN Veronica, and
Sheriff Jeff Easter, all failed to respond to Plaintiff’s grievances.
Plaintiff names as Defendants: Jeff Easter, SCJ Sheriff; Correct Care Solutions, LLC
(“CCS”); Harold Stopp, CCS doctor; Lisa K. Ireland, CCS LPN; Denise (lnu), CCS Director of
Nursing; Persons 1, 2, and 3, CCS physicians; Laura (lnu), CCS LPN; Shana (lnu), CCS LPN;
Veronica (lnu), CCS LPN; Jennifer (lnu), CCS LPN; Kim (lnu), CCS RN; (fnu) Woodson, SCJ
Shift Lieutenant; (fnu) Tucker, SCJ Shift Sergeant; (fnu) (lnu) (1), Official D2134 at SCJ; and
(fnu) (lnu) (2), CCS Clinic Liaison. Plaintiff seeks declaratory relief, future medical expenses,
compensatory damages and punitive damages.
II. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or an officer or an employee of a governmental entity. 28 U.S.C.
§ 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised
claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be
granted, or that seek monetary relief 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

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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
liberally construes a pro se complaint and applies “less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). In addition, the court accepts
all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th
Cir. 2006). On the other hand, “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 litigant’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 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 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) (citation omitted).

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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 “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 this 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 rather 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, 127 S.
Ct. at 1974).
III. DISCUSSION
The Court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or an officer or an employee of a governmental entity. 28 U.S.C.
§ 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised
claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be
granted, or that seek monetary relief from a defendant who is immune from such relief. 28
U.S.C. § 1915A(b)(1)–(2). The Court finds that the proper processing of Plaintiff’s claims
cannot be achieved without additional information from appropriate officials of the SCJ. 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 the SCJ to prepare and file

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a Martinez Report. Once the report has been received, the Court can properly screen Plaintiff’s
claims under 28 U.S.C. § 1915.
IT IS THEREFORE ORDERED BY THE COURT that:
(1)

the clerk of the court shall prepare waiver of service forms for

Defendants, pursuant to Rule 4(d) of the Federal Rules of Civil Procedure, to be
served upon 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.
(2)

Officials responsible for the operation of the Sedgwick County Jail

are directed to undertake a review of the subject matter of the SAC:
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 SAC;
and
c.

To determine whether other like complaints,

whether pending in this Court or elsewhere, are related to this SAC
and should be considered together.
(3)

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

which shall be filed with the Court and served on Plaintiff. The Sedgwick County
Jail must seek leave of the Court if it wishes to file certain exhibits or portions of
the report under seal or without service on Plaintiff. Statements of all witnesses
shall be in affidavit form.

Copies of pertinent rules, regulations, official

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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.
(4)

Authorization is granted to the officials of the Sedgwick County

Jail to interview all witnesses having knowledge of the facts, including Plaintiff.
(5)

No answer or motion addressed to the SAC shall be filed until the

Martinez Report required herein has been prepared.
(6)

Discovery by Plaintiff shall not commence until Plaintiff has

received and reviewed Defendants’ answer or response to the SAC 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 in Topeka, Kansas, on this 12th day of July, 2019.

s/ Sam A. Crow
Sam A. Crow
U.S. Senior District Judge

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