Stewart v. Dominicis et al

Filing 3

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted to and including June 10, 2024 in which to show good cause, in writing, why his claim related to beta blockers should not be dismissed for the reasons stated in this order. The clerk of the court shall enter the Sheriff of Wyandotte County as an interested party on the docket for the limited purpose of preparing and filing the Martinez report. Upon the filing of that report, the interested party may move for termination from this action. The Sheriff of Wyandotte County shall submit the Martinez Report no later than June 28, 2024, unless the time is extended by the Court. Plaintiff will then have to and including July 29, 2024 in which to file a response to the Martinez Report if he wishes to do so. Upon the filing of the Martinez Report and any response by Plaintiff, or when the time for filing a response has expired, the Court will screen Plaintiff's complaint and issue further orders as appropriate. Signed by District Judge John W. Lungstrum on 5/8/2024. Mailed to pro se party Wayne Anthony Stewart by regular mail. (jal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
WAYNE ANTHONY STEWART,
Plaintiff,
v.

CASE NO. 24-3058-JWL

JORGE A. DOMINICIS, et al.,
Defendants.
MEMORANDUM AND ORDER
This is a pro se civil rights action under 42 U.S.C. § 1983 brought by Plaintiff Wayne
Anthony Stewart, who is incarcerated at the Wyandotte County Detention Center (WCDC) in
Kansas City, Kansas awaiting civil commitment proceedings. Plaintiff is hereby required to show
good cause, in writing, why his claim related to beta blockers should not be dismissed for the
reasons stated below. In addition, the Court has determined that proper processing of Plaintiff’s
remaining claim, which is related to the treatment of his hepatitis C virus (HCV) cannot be
achieved without additional information from appropriate officials at the WCDC. Thus, the Court
will direct the appropriate WCDC officials to prepare and submit a Martinez Report.
I. Background
As Defendants to this action, Plaintiff names Jerry Boyle, the chairman and founder of
Correct Care Solutions (CCS), now known as Wellpath, a company that provides medical services
for the WCDC; Jorge A. Dominicis, the CEO/President of Wellpath/CCS; Nurse Practitioner and
Wellpath employee Amie Fabah-Ezeogu; Nurse Practitioner and Wellpath/CCS employee Alicia
Jones; and Registered Nurse Dee Dee Gregory, Wellpath/CCS’s Medical Department
Administrator. (Doc. 1, p. 1-3, 5, 7.) Plaintiff alleges the following factual background for his

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complaint. In 2010, while Plaintiff was previously housed at WCDC, medical staff there were
aware that Plaintiff had HCV and they monitored his condition. (Doc. 1-1.)
Plaintiff began his current term of confinement at the WCDC on February 8, 2018. (Doc.
1, p. 5, 9.) On November 25, 2018, Plaintiff submitted a grievance seeking treatment of his HCV
and expressing his belief that, if untreated, it could “lead to irreversible physical damage and even
life-threatening circumstances.” Id. at 5; (Doc. 1-1, p. 1). Plaintiff stated in that grievance that
there was a cure available for HCV. (Doc. 1-1.) The written response to the grievance states:
“[Patient] informed that he is currently being monitored in chronic care for this condition. Will
schedule [patient] for education with provider.” Id.
According to Plaintiff, however, Wellpath’s policy, practice, and custom is to not provide
the direct acting antiviral drugs (DAA drugs) that cure HCV because of the cost of those drugs.
(Doc. 1, p. 4.) Plaintiff alleges that Defendant Fabah-Ezeogu was following that policy when she
denied Plaintiff’s request for the DAA drugs despite knowing that leaving Plaintiff’s HCV
untreated posed a substantial risk of serious harm. Id. The denial of the DAA drugs allowed
Plaintiff’s HCV to progress to Stage F4, also called liver cirrhosis. Id. At some point, an
unidentified “nursing staff member” told Plaintiff “‘the only reason why the provider is electing
not to provide []direct acting antiviral (DAA) treatment is due to the high cost of treatment.’” Id.
at 10.
On March 25, 2019, Plaintiff submitted an inmate communication form requesting HCV
“treatment[/]cure.” (Doc. 1-2.) He explained that he was experiencing nausea, vomiting, fatigue,
“extremely ‘light colored’ stools,” and pain in his liver area. He asked to be scheduled for scans
or ultrasounds, again asserted that a cure for HCV was available, and asked the medical department
to “[p]lease [not] allow my [HCV to] deteriorate into fatal liver cancer.” Id. The written response,

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which appears to be signed by Defendant Gregory, was “Asked and [a]nswered.” Id. In October
2021, Plaintiff missed a nephrology appointment that had been scheduled with the University of
Kansas Health System. (Doc. 1-11.)
During a routine medical visit on a Thursday morning sometime prior to December 9,
20221, Plaintiff alleges that his heart rate registered as 39 beats per minute. (Doc. 1, p. 3.) The
nurse who took Plaintiff’s vitals immediately reported the heart rate to Defendant Fabah-Ezeogu,
who sent Plaintiff back to his cell. Id. Approximately 24 hours later, a nurse took Plaintiff’s pulse
again and discovered that Plaintiff’s heart rate was 37 beats per minutes. After the nurse reported
the heart rate to Defendant Fabah-Ezeogu, Defendant Gregory took Plaintiff’s pulse and informed
Defendant Fabah-Ezeogu that she recorded 37 beats per minute as well. Id. Plaintiff was sent back
to his cell, but approximately 3 hours later, Plaintiff was taken to the University of Kansas Medical
Center (UKMC). Id.
Doctors at UKMC examined Plaintiff and determined that he “needed a pacemaker or he
would die.” Id. Because UKMC did not perform major medical procedures on weekends due to
staffing limitations, the doctors planned to perform the procedure the following Monday morning.
In anticipation of the procedure and on the doctors’ orders, Plaintiff stopped taking his usual
medications on Saturday. By noon on Sunday, Plaintiff’s heart rate was 111 beats per minute. Id.
UKMC doctors informed Plaintiff that he did not need a pacemaker and that his low heart rate was
due to a beta blocker he had been taking; Defendant Fabah-Ezeogu had prescribed the beta blocker
for Plaintiff. Id. Liberally construing the pro se complaint, it seems that UKMC may have

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Although Plaintiff does not identify the specific date of these events in his complaint, an inmate communication
form he has attached to his complaint that concerns these events is dated December 9, 2022. (Doc. 1-3.) He has also
attached an exhibit to the complaint that appears to indicate that these events may have occurred in August 2022.
(Doc. 1-6.)

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recommended testing related to Plaintiff’s HCV; Plaintiff asserts this testing was not done until
“recently.” Id. at 6, 9.
On December 9, 2022, Plaintiff submitted an inmate communication form regarding his
repeated requests for treatment of HCV, the repeated denials of those requests, and his experience
with the beta blockers as detailed above. (Doc. 1-3.) He explained that HCV “get[s] wors[e] when
untreated.” Id. The written response, which appears to be signed by Defendant Gregory, was:
“Medical follows certain policies and procedures for treatment. The process is reviewed and the
provider determines if treatment is clinically indicated or the need to be monitored in the chronic
care clinic is sufficient.” Id.
On January 25, 2024, Plaintiff submitted a Wellpath health services request stating that he
had “asked on several occasions that it be explain[ed] to me the stage of my cirrhosis, and its
advance from 2018.” (Doc. 1-12.) Defendant Jones replied, “I am taking the proper [and] necessary
steps to get you treatment Mr. Stewart. That’s one of the reasons why your blood keeps getting
taken.” Id. On March 20, 2024, Plaintiff signed an informed consent to take Mayvert, “a
medication used to treat the Hepatitis C virus.” (Doc. 1-10.) The provider signature is that of
Defendant Jones. Id.
The required court-approved form for a complaint under 42 U.S.C. § 1983 has a specific
section for Plaintiff to articulate the individual count or counts he wishes to assert in this lawsuit.
(Doc. 1, p. 8, 11.) In this section, plaintiffs are instructed to “allege . . . the . . . constitutional rights,
privileges or immunities [that] have been violated” in each count and set forth the facts supporting
each count. Plaintiff has, instead, written a narrative in these spaces concerning the failure to treat
his HCV. See id. Liberally construing the pro se complaint, however, Plaintiff makes two
allegations that Defendants violated Plaintiff’s right to adequate medical care and were

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deliberately indifferent to Plaintiff’s serious medical needs. If this construction is incorrect,
Plaintiff should so inform the Court as soon as possible.
First, Plaintiff alleges that his constitutional right to adequate medical care was violated by
Defendants Dominicis and Boyle implementing and enforcing cost-based policies to deny Plaintiff
HCV treatment, which they knew or should have known left Plaintiff at risk of serious harm, thus
demonstrating deliberate indifference to a serious medical need. (Doc. 1, p. 1-2.) He further alleges
that Defendants Fabah-Ezeogu, Jones, and Gregory knew that denying the HCV treatment left
Plaintiff at risk of serious harm, but were deliberately indifferent to Plaintiff’s serious medical
needs and intentionally refused to provide, delayed, and/or prevented the treatment based on the
cost of treatment and Wellpath policies. Id. at 4, 6-7. He further alleges that his current irreversible
cirrhosis is a direct result of the decision to deny DAA drugs. Id. at 7.
Second, Plaintiff alleges that Defendant Fabah-Ezeogu violated his constitutional right to
adequate medical treatment by prescribing beta blockers, which lowered Plaintiff’s heart rate to
the point where he was hospitalized and scheduled for heart surgery before doctors realized his
low heart rate was due to the medication and not a condition requiring a pacemaker. (Doc. 1, p. 34.) As relief, Plaintiff seeks punitive and compensatory damages from all Defendants. Id. at 12.
III. Screening Standards
Because Plaintiff is a prisoner, the Court is required by statute to screen his amended
complaint and to dismiss it or any portion of it that is frivolous, fails to state a claim on which
relief may be granted, or seeks relief from a defendant immune from such relief. 28 U.S.C. §
1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(B). “To state a claim under § 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

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v. Atkins, 487 U.S. 42, 48-49 (1988) (citations omitted); Northington v. Jackson, 973 F.2d 1518,
1523 (10th Cir. 1992). The 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, the Court “will not supply additional
factual allegations to round out a plaintiff’s complaint or construct a legal theory on plaintiff’s
behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
“[W]hen 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).
Furthermore, 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). The Court must determine whether Plaintiff has “nudge[d] his claims across
the line from conceivable to plausible.” See Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.
2009)(quotation marks and citation omitted). “Plausible” in this context 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 met his or her burden. Robbins v. Okla., 519 F.3d
1242, 1247 (10th Cir. 2008)(citing Twombly, at 550 U.S. at 570).
IV. Analysis
A. Denial or Delay of Medical Care
The right to custodial medical care [for pretrial detainees] is well settled.
See generally Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L.Ed.2d 251 (1976).
“The Fourteenth Amendment's Due Process Clause entitles pretrial detainees to the
same standard of medical care that the Eighth Amendment requires for convicted
inmates.” Lance [v. Morris], 985 F.3d [787,] 793 ; see also Clark v. Colbert, 895
F.3d 1258, 1267 (10th Cir. 2018) (explaining the Eighth Amendment includes “an
entitlement to a certain minimum standard of medical care while incarcerated”).
“Although pretrial detainees are protected under the Due Process Clause rather than
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the Eighth Amendment, this Court applies an analysis identical to that applied in
Eighth Amendment cases brought pursuant to § 1983.” Olsen [v. Layton Hills
Mall], 312 F.3d [1304,] 1315 [(10th Cir. 2002)].
Prison officials violate the Constitution when they act with “deliberate
indifference to an inmate’s serious medical needs. Mata v. Saiz, 427 F.3d 745, 751
(10th Cir. 2005).
Estate of Beauford v. Mesa County, Colo., 35 F.4th 1248, 1262 (10th Cir. 2022).
To show unconstitutional deliberate indifference to a serious medical need, a plaintiff must
establish two components, one objective and one subjective. Paugh v. Uintah County, 47 F.4th
1139, 1154 (10th Cir. 2022), cert. denied June 26, 2023.
The objective component focuses on the “seriousness of the plaintiff’s alleged
harm,” and the subjective component focuses on ‘the mental state of the defendant
with respect to the risk of that harm.”
….
To satisfy the objective component, “the alleged deprivation must be
‘sufficiently serious’ to constitute a deprivation of constitutional dimension.” Self
[v. Crum], 439 F.3d [1227,] 1230 [(10th Cir. 2006)] (quoting Farmer [v. Brennan],
511 U.S. [825,] 834 [(1994)]). Generally, a medical need qualifies as “sufficiently
serious” if it “has been diagnosed by a physician as mandating treatment” or if it is
“so obvious that even a lay person would easily recognize the necessity for a
doctor's attention.” Sealock [v. Colo.], 218 F.3d [1205,] 1209 [(10th Cir. 2000)]
(citation omitted).
Paugh, 47 F.4th at 1154-55. In addition, “[m]edical delays can be sufficiently serious if they cause
substantial harm, such as ‘permanent loss[] or considerable pain.’” Lance, 985 F.3d at 793. But
delay in providing medical care does not violate the Eighth Amendment unless there has been
deliberate indifference to the effects of the delay and the delay itself resulted in substantial harm.
Olson v. Stotts, 9 F.3d 1475 (10th Cir. 1993).
“The subjective component is met if a prison official knows of and disregards an excessive
risk to inmate health or safety.” Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir. 2005) (citing

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Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (quotation omitted)). In measuring a
prison official’s state of mind, “the 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.”
Martinez, 430 F.3d at 1305. But a mere difference of opinion between the inmate and prison
medical personnel regarding diagnosis or reasonable treatment does not constitute cruel and
unusual punishment. See Estelle, 429 U.S. at 106–07; Coppinger v. Townsend, 398 F.2d 392, 394
(10th Cir. 1968); see also Handy v. Price, 996 F.2d 1064, 1067 (10th Cir. 1993) (affirming that a
quarrel between a prison inmate and the doctor as to the appropriate treatment for hepatitis did not
successfully raise an Eighth Amendment claim). Relatedly, an inadvertent failure to provide
adequate medical care or a negligent diagnosis “fail[s] to establish the requisite culpable state of
mind.” Estelle, 429 U.S. at 106. “[A] complaint that a physician has been negligent in diagnosing
or treating a medical condition does not state a valid claim of medical mistreatment under the
Eighth Amendment.” Id.
i. Beta Blockers Claim
To the extent that Plaintiff intends to argue a constitutional violation based on Defendant
Fabah-Ezeogu prescribing beta blockers to Plaintiff or on her waiting more than 24 hours after the
first report of low heartrate to transport Plaintiff to KUMC, the claim is subject to dismissal for
failure to state a plausible claim for relief under 42 U.S.C. § 1983. Even liberally construing the
complaint and taking all well-pled facts alleged therein as true, Plaintiff has not alleged facts that
show that Defendant Fabah-Ezeogu was deliberately indifferent to a substantial risk of serious
harm when she prescribed the beta blockers.
Additionally, although a low heart rate could indicate a serious medical need, Plaintiff has
not alleged that he was completely denied treatment for his low heart rate. Rather, he appears to

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argue that the constitutional violation occurred when Defendant Fabah-Ezeogu waited over 24
hours before having Plaintiff transported to KUMC for further examination and treatment. The
Tenth Circuit has clearly explained that a delay in medical care for an inmate only violates the
Constitution “where the plaintiff can show that the delay resulted in substantial harm.” Oxendine
v. Kaplan, 241 F.3d 1272 (10th Cir. Mar. 6, 2001). “The substantial harm requirement ‘may be
satisfied by lifelong handicap, permanent loss, or considerable pain.’” Mata v. Saiz, 427 F.3d 745,
751 (10th Cir. 2005) (quoting Garret v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001)). Plaintiff
has not alleged facts that show the delay in transporting him to KUMC resulted in substantial harm.
Accordingly, Plaintiff is required to show good cause, in writing, why his claim for relief
in this matter that relates to the beta blockers should not be dismissed for failure to state a plausible
claim for relief under 42 U.S.C. § 1983.
ii. HCV Claim
The Court finds that the proper processing of Plaintiff’s claims regarding treatment of his
HCV—or the lack thereof—cannot be achieved without additional information from appropriate
KDOC officials. See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978); see also Hall v. Bellmon,
935 F.2d 1106 (10th Cir. 1991). The Court will not order service of process at this time but will
continue screening the complaint after receipt of the report ordered herein and Plaintiff’s response
to that report.
IT IS THEREFORE ORDERED that Plaintiff is granted to and including June 10, 2024
in which to show good cause, in writing, why his claim related to beta blockers should not be
dismissed for the reasons stated herein.
IT IS FURTHER ORDERED that the clerk of the court shall enter the Sheriff of
Wyandotte County as an interested party on the docket for the limited purpose of preparing and

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filing the Martinez report ordered herein. Upon the filing of that report, the interested party may
move for termination from this action.
IT IS FURTHER ORDERED that:
(1)

Officials responsible for the operation of the WCDC are directed to undertake a

review of the subject matter of the claims in the complaint related to Plaintiff’s HCV:
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.
(2)

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

filed with the Court and served on Plaintiff. If the WCDC officials wish to file any exhibits or
portions of the report under seal or without service on Plaintiff, they must file such portions
separately from the public report and provisionally under seal, to be followed immediately by a
Motion to Seal or Redact Document(s). The WCDC officials are exempt from filing the Notice of
Proposed Sealed Record under D. Kan. Rule 5.4.2(b).
(3)

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.
(4)

Authorization is granted to the WCDC officials to interview all witnesses having

knowledge of the facts, including Plaintiff.

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(5)

The Sheriff of Wyandotte County shall submit the Martinez Report no later than

June 28, 2024, unless the time is extended by the Court. Plaintiff will then have to and including
July 29, 2024 in which to file a response to the Martinez Report if he wishes to do so. Upon the
filing of the Martinez Report and any response by Plaintiff, or when the time for filing a response
has expired, the Court will screen Plaintiff’s complaint and issue further orders as appropriate.

IT IS SO ORDERED.
Dated this 8th day of May, 2024, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE

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