Opinion
Case No. 15-3279-SAC-DJW
06-08-2016
MARVIN ROBERT DAVIS, Plaintiff, v. BUTLER COUNTY DETENTION FACILITY, et al., Defendants.
NOTICE AND ORDER TO SHOW CAUSE
I. Nature of the Matter before the Court
This pro se civil action was filed pursuant to 42 U.S.C. § 1983 by an inmate of the Butler County Detention Facility. Plaintiff, proceeding pro se, brings this action against the Butler County Detention Facility ("BCDF"), Corporal Flax, who is a BCDF guard presumably, and an unnamed doctor or dentist from El Dorado Family Dentistry who treated Plaintiff. Apparently, Plaintiff had at least one dental procedure that resulted in the extraction of one or more teeth or crowns. After the procedure(s), he was, in his mind, not given enough pain medication and was thus still in pain weeks after the procedure. In a supplement to his Complaint (Doc. 5), he mentions he has had no follow-up with the dental office nor has he received blood pressure medication for three days.
Plaintiff did not supply his first name.
II. Screening Standards
The Court is required to screen his Complaint and to dismiss the Error! Reference source not found. or any portion thereof 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 v. Atkins, 487 U.S. 42, 48-49 (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). 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). "[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, at Arapahoe County Justice Center, 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 plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
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 (quotation marks and citations omitted). Under this new standard, "a plaintiff must nudge his claims across the line from conceivable to plausible." Smith, 561 F.3d at 1098 (quotation marks and citation omitted). Bloom v. McPherson, 346 Fed. App'x 368, 372 (10th Cir. 2009); Robbins, 519 F.3d at 1247-48; see Ellibee v. Fox, 244 Fed. App'x 839, 843 (10th Cir. 2007). "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, 519 F.3d at 1247 (citing Twombly, at 1974).
Exhaustion of Administrative Remedies
Under 42 U.S.C. § 1997e(a), a prisoner must exhaust his administrative remedies prior to filing a lawsuit in federal court regarding prison conditions. Id. Section 1997e(a) expressly provides:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.Id. This exhaustion requirement "is mandatory, and the district court [is] not authorized to dispense with it." Beaudry v. Corrections Corp. of Am., 331 F.3d 1164, 1167 n. 5 (10th Cir. 2003); Little v. Jones, 607 F.3d 1245, 1249 (10th Cir. 2010). While failure to exhaust is an affirmative defense and a plaintiff is generally not required to plead it in the complaint, when that failure is clear from materials filed by plaintiff, the court may sua sponte require plaintiff to show that he has exhausted. See Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007)(acknowledging district courts may raise exhaustion question sua sponte, consistent with 42 U.S.C. § 1997e(c)(1) and 28 U.S.C. §§ 1915 and 1915A, and dismiss prisoner complaint for failure to state a claim if it is clear from face of complaint that prisoner has not exhausted administrative remedies).
To satisfy this requirement, a prisoner must fully comply with the institution's grievance procedures. Jones v. Bock, 549 U.S. 199, 218 (2007); Woodford v. Ngo, 548 U.S. 81, 90 (2006); Little, 607 F.3d at 1249 (The "inmate may only exhaust by properly following all the steps laid out in the prison system's grievance procedures.") (citing Woodford, 548 U.S. at 90 ("An inmate who begins the grievance process but does not complete it is barred from pursuing a § 1983 claim. . . .")). --------
Eighth Amendment - Denial of Medical Care
The Eighth Amendment guarantees a prisoner the right to be free from cruel and unusual punishments. The United States Supreme Court has held that an inmate advancing a claim of cruel and unusual punishment based on inadequate provision of medical care must establish "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976); Boyett v. County of Washington, 282 Fed. App'x 667, 672 (10th Cir. 2008) (citing Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005)). The "deliberate indifference" standard has two components: "an objective component requiring that the pain or deprivation be sufficiently serious; and a subjective component requiring that [prison] officials act with a sufficiently culpable state of mind." Miller v. Glanz, 948 F.2d 1562, 1569 (10th Cir. 1991); Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir. 2005). In the objective analysis, 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). 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 layperson would easily recognize the necessity for a doctor's attention." Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980); Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999); Martinez, 430 F.3d at 1304 (quoting Farmer, 511 U.S. at 834 (quotation omitted)).
"The subjective component is met if a prison official knows of and disregards an excessive risk to inmate health or safety." Martinez, 430 F.3d at 1304 (citing 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." Id. at 1305 (citing Riddle v. Mondragon, 83 F.3d 1197, 1204 (10th Cir. 1996) (quotation omitted)).
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."); Wilson v. Seiter, 501 U.S. 294, 297 (1991). Likewise, 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; 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); Ledoux v. Davies, 961 F.2d 1536 (10th Cir. 1992) (Plaintiff's contention that he was denied treatment by a specialist is insufficient to establish a constitutional violation.); El'Amin v. Pearce, 750 F.2d 829, 833 (10th Cir. 1984) (A mere difference of opinion over the adequacy of medical treatment received cannot provide the basis for an Eighth Amendment claim.). Where the complaint alleges a "series of sick calls, examinations, diagnoses, and medication," it "cannot be said there was a 'deliberate indifference' to the prisoner's complaints." Smart v. Villar, 547 F.2d 112, 114 (10th Cir. 1976). As the United States Supreme Court explained:
[A]n inadvertent failure to provide adequate medical care cannot be said to constitute "an unnecessary and wanton infliction of pain" or to be "repugnant to the conscience of mankind." Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medial mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.Estelle, 429 U.S. at 105-106 (footnote omitted). The prisoner's right is to medical care-not to the type or scope of medical care he personally desires. A difference of opinion between a physician and a patient or even between two medical providers does not give rise to a constitutional right or sustain a claim under § 1983. Coppinger v. Townsend, 398 F.2d 392, 394 (10th Cir. 1968).
Furthermore, 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" because of the delay. Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001); Kikumura v. Osagie, 461 F.3d 1269, 1292 (10th Cir. 2006). In cases involving allegations of missed diagnoses or delayed treatment, plaintiffs may establish liability by showing:
a medical professional recognizes an inability to treat the patient due to the seriousness of the condition and his corresponding lack of expertise but nevertheless declines or unnecessarily delays referral, e.g., a family doctor knows that the patient needs delicate hand surgery requiring a specialist but instead of issuing the referral performs the operation himself; (2) a medical professional fails to treat a medical condition so obvious that even a layman would recognize the condition, e.g., a gangrenous hand or a serious laceration; [or] (3) a medical professional completely denies care although presented with recognizable
symptoms which potentially create a medical emergency, e.g., a patient complains of chest pains and the prison official, knowing that medical protocol requires referral or minimal diagnostic testing to confirm the symptoms, sends the inmate back to his cell.Boyett, 282 Fed. App'x at 673 (quoting Self, 439 F.3d at 1232) (citations omitted)).
III. Analysis
Exhaustion of Administrative Remedies
This action is subject to dismissal because it appears from the face of the Error! Reference source not found. that Plaintiff failed to fully and properly exhaust all available prison administrative remedies on each of his claims prior to filing this action in federal court. While Plaintiff alleges he submitted two grievances, the time frame makes it very unlikely that he followed the proper grievance process starting at the requisite initial level and appealing to the highest level. Indeed, the dental procedures occurred on December 8, 2015 and Plaintiff filed suit on December 23, 2015. Because failure to exhaust appears from the face of the complaint, Plaintiff is required to show that he has fully and properly exhausted on each of the grounds raised in the complaint. In response to the question on his form complaint as to whether or not he sought relief from administrative officials, Plaintiff marked "No." He also explains that his two grievances were answered, stating "[Plaintiff's] medical needs would be met." It thus appears from Plaintiff's own allegations that he has not exhausted administrative remedies on his claims. In showing good cause, Plaintiff should explain the administrative procedures employed by the facility and how he has complied with them or why he has not.
Denial of Medical Care Claim
Plaintiff's allegations of denial of medical care are subject to dismissal for failure to state a claim. Plaintiff's allegations and exhibits plainly indicate that he has been furnished medical care during the relevant timeframe. They also indicate that his claim amounts to his difference of opinion with the diagnosis of his ailments by medical professionals and the treatments he has been provided. In essence, Plaintiff's claim is that he believes he has not been administered the correct amount or correct type of pain relief medication. But Plaintiff admits he received 500mg of ibuprofen relief medication during the relevant period. Plaintiff's allegations are nothing more than a layperson's disagreement with the medical diagnosis and treatment of his symptoms by medical professionals. Such allegations do not rise to the level of a claim of cruel and unusual punishment under the Eighth Amendment; they are, at most, grounds for a negligence or malpractice claim in state court.
IT IS THEREFORE ORDERED BY THE COURT that, on or before July 8, 2016, Plaintiff shall show good cause to District Judge Sam A. Crow as to why this case should not be dismissed for failure to exhaust administrative remedies and for failure to state a claim for denial of medical care.
IT IS SO ORDERED.
Dated June 8, 2016, at Kansas City, Kansas.
/s/
David J. Waxse
United States Magistrate Judge