George (ID 81547) v. Payne-Delano et al

Filing 36

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted until February 3, 2025, in which to respond to the Report at Doc. 32 , and to show good cause, in writing to the undersigned, why Plaintiff's claims should not be dismissed. Signed by District Judge John W. Lungstrum on 01/03/25. Mailed to pro se party Lewis Michael George by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LEWIS MICHAEL GEORGE,
Plaintiff,
v.

CASE NO. 24-3123-JWL

VANESSA PAYNE-DELANO,
et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff brings this pro se civil rights action under 42 U.S.C. § 1983.

Plaintiff is

incarcerated at the El Dorado Correctional Facility in El Dorado, Kansas (“EDCF”). The Court
granted Plaintiff leave to proceed in forma pauperis. On August 14, 2024, the Court entered a
Memorandum and Order (Doc. 12) (“M&O”) finding that the proper processing of Plaintiff’s
Eighth Amendment claim could not be achieved without additional information, and directing
Kansas Department of Corrections (“KDOC”) officials to submit a Martinez Report. The Court
also directed Plaintiff to show good cause why his claims in Count V should not be dismissed.
Plaintiff’s claims in Count V were subsequently dismissed. (Doc. 19.)
The M&O provides that “[o]nce the report has been received, the Court can properly screen
Plaintiff’s claims under 28 U.S.C. § 1915A.” (Doc. 12, at 9.) The Martinez Report (Doc. 32) (the
“Report”) has now been filed. The Court’s screening standards and Plaintiff’s factual allegations
are set forth in detail in the Court’s M&O.
Plaintiff’s claims are based on medical care he received on July 7, 2023, at EDCF. Plaintiff
alleges that there was an unreasonable delay in receiving pain medication and in determining that
he had appendicitis.

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The Report provides in relevant part that:
Dr. Harrod notes that plaintiff had a history of kidney stones
and that the complaints made by plaintiff were those associated with
kidney stones. When Dr. Harrod evaluated plaintiff, plaintiff
complained of pain localized to the right upper quadrant of his
abdomen. Appendicitis is associated with pain in the lower right
quadrant of the abdomen, which pain plaintiff did not develop until
the evening of July 7, 2023, at which time plaintiff was transported
to the emergency room for further evaluation and treatment. (Exhibit
4, para. 8-16)
Defendants Harrod and Payne-Delano indicate that
plaintiff’s medical condition was frequently addressed, diligently
monitored and treatment was promptly provided. (Exhibit 4, Para.
17, and Exhibit 6, Para. 11. )
(Doc. 32, at 7.)

The Eighth Amendment guarantees a prisoner the right to be free from cruel and unusual
punishment. “[D]eliberate indifference to serious medical needs of prisoners constitutes the
‘unnecessary and wanton infliction of pain’ . . . proscribed by the Eighth Amendment.” Estelle v.
Gamble, 429 U.S. 97, 104 (1976) (citation omitted).
The “deliberate indifference” standard includes both an objective and a subjective
component. Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir. 2005) (citation omitted). In the
objective analysis, the deprivation must be “sufficiently serious,” and the inmate must show the
presence of a “serious medical need,” that is “a serious illness or injury.” Estelle, 429 U.S. at 104,
105; Farmer v. Brennan, 511 U.S. 825, 834 (1994), Martinez, 430 F.3d at 1304 (citation omitted).
A serious medical need includes “one that has been diagnosed by a physician as mandating
treatment or one that is so obvious that even a lay person would easily recognize the necessity for
a doctor’s attention.” Martinez, 430 F.3d at 1304 (quoting Sealock v. Colorado, 218 F.3d 1205,
1209 (10th Cir. 2000)).
“The subjective component is met if a prison official knows of and disregards an excessive
risk to inmate health or safety.” Id. (quoting Sealock, 218 F.3d at 1209). In measuring a prison
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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.” Id.
at 1305 (quoting Riddle v. Mondragon, 83 F.3d 1197, 1204 (10th Cir. 1996)).
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; see also Coppinger v. Townsend, 398 F.2d 392, 394 (10th Cir. 1968)
(prisoner’s right is to medical care—not to type or scope of medical care he desires and difference
of opinion between a physician and a patient does not give rise to a constitutional right or sustain
a claim under § 1983).
Delay in providing medical care does not violate the Eighth Amendment, unless there has
been deliberate indifference resulting in substantial harm. Olson v. Stotts, 9 F.3d 1475 (10th Cir.
1993). In situations where treatment was delayed rather than denied altogether, the Tenth Circuit
requires a showing that the inmate suffered “substantial harm” as a result of the delay. Sealock v.
Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000) (citation omitted). “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 Garrett v. Stratman, 254 F.3d 946, 950 (10th
Cir. 2001)).
“A plaintiff ‘need not show that a prison official acted or failed to act believing that harm
actually would befall an inmate,’ but rather that the official ‘merely refused to verify underlying
facts that he strongly suspected to be true, or declined to confirm inferences of risk that he strongly
suspected to exist.’” Lucas v. Turn Key Health Clinics, LLC, 58 F.4th 1127, 1137 (10th Cir. 2023)
(quoting Farmer, 511 U.S. at 842, 843 n.8).

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The Tenth Circuit recently clarified that “it is possible to have some medical care and still
state a claim under the gatekeeper theory.” Id. at 1139. “The inquiry under a gatekeeper theory is
not whether the prison official provided some care but rather whether they fulfilled their sole
obligation to refer or otherwise afford access to medical personnel capable of evaluating a patient’s
treatment needs when such an obligation arises.” Id. (citations omitted). Under the deliberate
indifference analysis, “merely doing something (with no reference to the underlying condition)
does not necessarily insulate one from liability.” Id. “Instead, a court may need to determine
whether there was the functional equivalent of a complete denial of care in light of the specific
circumstances.” Id. (citations omitted).
Plaintiff has failed to show that any defendant was deliberately indifferent to his medical
needs. Plaintiff has failed to show that Defendants disregarded an excessive risk to his health or
safety or that they were both aware of facts from which the inference could be drawn that a
substantial risk of serious harm existed, and also drew the inference. Plaintiff’s claims suggest, at
most, medical malpractice. Medical malpractice against a prisoner is a state law claim and does
not state a claim for relief under Section 1983. See Estelle v. Gamble, 429 U.S. 97, 106 (1976)
(“Medical malpractice does not become a constitutional violation merely because the victim is a
prisoner.”) Under 28 U.S.C. § 1367(c)(3), “district courts may decline to exercise supplemental
jurisdiction over a claim if . . . the district court has dismissed all claims over which it has original
jurisdiction.” “When all federal claims have been dismissed, the court may, and usually should,
decline to exercise jurisdiction over any remaining state claims.” Koch v. City of Del City, 660
F.3d 1228, 1248 (10th Cir. 2011) (quotations omitted); see also Foxfield Villa Assocs., LLC v.
Robben, 967 F.3d 1082, 1103 (10th Cir. 2020) (“[A] district court should normally dismiss
supplemental state law claims after all federal claims have been dismissed, particularly when the

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federal claims are dismissed before trial.”) (citation omitted).
Based on the Report, the Court is considering dismissal of Plaintiff’s claims. However,
the Court will grant Plaintiff an opportunity to respond to the Report and to show good cause why
his claims should not be dismissed for failure to state a claim.
IV. Response Required
The Martinez report developed as a means “to ascertain whether there is a factual as well
as a legal basis for [a] prisoner’s claims.” Gee v. Estes, 829 F.2d 1005, 1007 (10th Cir. 1987). The
report “is treated like an affidavit, and the court is not authorized to accept the factual findings of
the prison investigation when the plaintiff has presented conflicting evidence.” Hall v. Bellmon,
935 F.2d 1106, 1111 (10th Cir. 1991) (citing Sampley v. Ruettgers, 704 F.2d 491, 493 n. 3 (10th
Cir. 1983)). Thus, at this point in the proceedings the Court does not use the Report to resolve
conflicts of fact. See Swoboda v. Duback, 992 F.2d 286, 290 (10th Cir. 1993) (“In determining
whether a plaintiff has stated a claim, the district court may not look to the Martinez report, or any
other pleading outside the complaint itself, to refute facts specifically pled by a plaintiff, or to
resolve factual disputes.”). In light of the Report, the Court is considering dismissal of this matter
for failure to state a claim.
Plaintiff will be given an opportunity to respond to the Report and to show good cause why
dismissal should not be entered. Failure to respond by the Court’s deadline may result in dismissal
of this action without further notice for failure to state a claim.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is granted until
February 3, 2025, in which to respond to the Report at Doc. 32, and to show good cause, in writing
to the undersigned, why Plaintiff’s claims should not be dismissed for the reasons stated herein.

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IT IS SO ORDERED.
Dated January 3, 2025, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE

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