Opinion
Civil Action No. 99-3243-KHV
July 20, 2001
MEMORANDUM AND ORDER
Joe Evans brings suit against various employees of the Kansas Department of Corrections ("KDOC") and Prison Health Services, Inc. ("PHS") under 42 U.S.C. § 1983. Plaintiff alleges that defendants violated his constitutional rights by denying him adequate medical care. This matter is before the Court on the KDOC defendants' [Amended Motion And] Memorandum In Support Of Defendants' Amended Motion For Summary Judgment (Doc. #42) filed March 1, 2001. For reasons set forth below, the Court sustains defendants' motion in part and grants plaintiff leave to amend.
In their motion for summary judgment, defendants challenge both the sufficiency of the allegations in plaintiff's complaint, as well as the supporting evidence. See, e.g., Memorandum In Support Of Defendants' Amended Motion For Summary Judgment (Doc. #42) filed March 1, 2001 at 6 ("Plaintiff has alleged no facts tending to show deliberate indifference or personal participation on the part of defendants"); id. at 7 (plaintiff fails to allege that KDOC defendants personally knew of and personally disregarded need for medical care); id. at 9 ("plaintiff's conclusory allegations are insufficient as a matter of law;" fail to state a constitutional violation). Because the Court finds that the complaint does not state a claim on which relief may be granted, it need not (and indeed cannot) address defendant's arguments regarding the lack of supporting evidence. Although defendants have raised their arguments in the context of a summary judgment motion, the Court first evaluates plaintiff's complaint under the typical standards for a motion to dismiss under Rule 12(b)(6), Fed.R.Civ.P.
Because plaintiff proceeds in forma pauperis, the Court could review plaintiff's complaint sua sponte to ensure that it states a claim on which relief may be granted, even if defendants had not adequately challenged the sufficiency of the complaint, See 28 U.S.C. § 1915(e)(2)(B)(ii); Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001) ( sua sponte dismissal under Rule 12(b)(6) or Section 1915(e)(2)(B)(ii) of meritless claim without opportunity to amend does not violate due process or unduly burden plaintiff's right of access to the courts).
Standards For Motion To Dismiss For Failure To State A Claim
A Rule 12(b)(6) motion should not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." GFF Corp. v. Associated Wholesale Grocers., Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The Court accepts all well-pleaded factual allegations in the complaint as true and draws all reasonable inferences from those facts in favor of plaintiff. See Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir. 1987). The issue in reviewing the sufficiency of plaintiff's complaint is not whether plaintiff will prevail, but whether plaintiff is entitled to offer evidence to support his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Although plaintiff need not precisely state each element of his claims, he must plead minimal factual allegations on those material elements that must be proved. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Factual Background
The following is a summary of the factual allegations of plaintiff's complaint (as supplemented by the Court's previous summary judgment ruling, see Memorandum And Order (Doc. #39) filed December 4, 2000 at 3-4):
Plaintiff is an inmate at the Lansing Correctional Facility ("LCF") in Lansing, Kansas. Akin Ayeni, M.D., Stephen Dayan, M.D. and Nadine Belk are employees of PHS. PHS contracts with the KDOC to provide medical services to inmates at LCF. Charles E. Simmons is Secretary of the KDOC and William L. Cummings is Deputy Secretary. David R. McKune is Warden at LCF and Lee Gibbens is the Unit Team Manager assigned to plaintiff's cellhouse.
In 1991, plaintiff sustained an inguinal hernia because of a work-related injury. The first symptom of an inguinal hernia is usually a bulge in the groin or scrotum. Often, the protrusion or bulge can be pushed back through the herniated area — a process known as "reduction." If a hernia is reducible, PHS classifies hernia repair surgery as "elective." When a hernia is no longer reducible, hernia repair surgery is necessary. By contract, PHS must provide medical services that are deemed medically necessary and not "elective."
On March 19, 1997, a doctor referred plaintiff for "surgical repair/consult." Drs. Dayan and Ayeni knew that plaintiff was in severe pain, but PHS and KDOC officials told plaintiff that regardless of his pain, he would not receive an operation because they considered the procedure "elective."
On November 21, 1997, eight months after plaintiff's original referral for a surgical consult, a doctor (name illegible) noted that plaintiff was "still pending answer for [left inguinal hernia] repair [,] consult!" On August 27, 1998, a doctor noted that plaintiff's hernia was "not completely reducible." The doctor again referred plaintiff for hernia repair. On November 9, 1998, a doctor noted that plaintiff's hernia was reducible. The doctor nevertheless referred plaintiff for surgery. On April 9, 1999, at no cost to PHS, plaintiff had inguinal hernia repair surgery at the V.A. Hospital in Leavenworth, Kansas.
On December 4, 2000, the Court overruled motions for summary judgment filed by the PHS and KDOC defendants. In that order, the Court also appointed counsel for plaintiff and granted defendants leave to file an amended motion for summary judgment. See id. at 10. On March 1, 2001, the KDOC defendants filed an amended motion, arguing that plaintiff has not alleged facts which tend to show deliberate indifference or personal participation.
Analysis
Plaintiff alleges that by delaying surgery on his hernia, defendants inflicted cruel and unusual punishment in violation of the Eighth Amendment. Prison officials violate the Eighth Amendment when they are deliberately indifferent to an inmate's serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980), cert. denied, 450 U.S. 1041 (1981). A medical need is "serious" if it has been diagnosed by a physician as one requiring treatment or if it is so obvious that even a lay person would easily recognize the need for a doctor's attention. See id. The existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; and the existence of chronic and substantial pain are all indications that a prisoner has a "serious" need for medical treatment. McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (cited in Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996)).Prison officials act with deliberate indifference to an inmate's health if they know that he faces a substantial risk of serious harm and disregard that risk by failing to take reasonable measures to abate it. See Farmer v. Brennan, 511 U.S. 825, 835-37 (1994). Such indifference may be proven by showing that prison officials intentionally denied, delayed access to, or interfered with an inmate's necessary medical care. See Estelle, 429 U.S. at 104-05; Jones v. Hannigan, 959 F. Supp. 1400, 1406 (D.Kan. 1997). Under this standard, plaintiff must show more than a negligent or inadvertent failure to provide adequate medical care and more than a mere difference of opinion between him and prison medical staff regarding the proper course of treatment. See Johnson v. Stephan, 6 F.3d 691, 692 (10th Cir. 1993); Smart v. Villar 547 F.2d 112, 114 (10th Cir. 1976); Jones, 959 F. Supp. at 1406. Accidental or inadvertent failure to provide adequate medical care, or negligent diagnosis or treatment do not constitute a medical wrong under the Eighth Amendment. See Ramos, 639 F.2d at 575; Riddle, 83 F.3d at 1203. Similarly, a prisoner's difference of opinion regarding the medical treatment he has received will not support a claim of cruel and unusual punishment. See Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993); Stephan, 6 F.3d at 692; Ramos, 639 F.2d at 575.
In its previous order, the Court found that a reasonable jury could conclude that plaintiff had a "serious" need for surgery. See Memorandum And Order (Doc. #39) at 5. The Court also found that plaintiff had presented sufficient evidence to satisfy the deliberate indifference requirement. See id. at 5-6. In particular, the Court noted plaintiff's sworn statement that KDOC defendants told plaintiff that he would not receive the surgery because they considered the procedure "elective." See id. As explained before, a blanket refusal to provide medical care despite a doctor's recommendation for such care may constitute deliberate indifference to plaintiff's health. See Estelle, 429 U.S. at 104-05 (intentional denial or delay in access to medical treatment may constitute deliberate indifference); Delker v. Maass, 843 F. Supp. 1390, 1399 (D.Or. 1994).
Defendants argue that plaintiff has not alleged or shown how each KDOC defendant either prevented him from obtaining surgery or otherwise personally participated in any wrongful acts. Although the Court rejected similar arguments in ruling on defendants' first summary judgment motion, that ruling was based in part on a liberal construction of plaintiff's complaint in light of his pro se status. In its previous order, the Court noted Discovery may reveal that some of the defendants were not involved with the decision to delay treatment. Absent discovery, however, plaintiff may be unable to ascertain who participated in the decision. If discovery reveals that certain defendants did not personally participate in the misconduct or in the adoption of a policy which approved of the misconduct, they may file a renewed motion for summary judgment.
See Memorandum And Order (Doc. #39) at 7. Plaintiff now has secured counsel and had an opportunity to take discovery. Plaintiff has nevertheless failed to clearly articulate his theory of liability with regard to each KDOC defendant. "A supervisor is not liable under section 1983 unless an `affirmative link' exists between the [constitutional] deprivation and either the supervisor's personal participation, his exercise of control or direction, or his failure to supervise." Meade, 841 F.2d at 1527. In his verified complaint, plaintiff alleges that the KDOC defendants are liable because each one "alleged that they did not have to provide Plaintiff with surgery for his inguinal hernia until his life was threatened — no matter how much pain he was in, because they consider, under their policies, procedures and practices, inguinal hernia surgery to be elective surgery for which they do not have to provide." Civil Rights Complaint Pursuant To 42 U.S.C. § 1983 (Doc. #1) filed July 19, 1999 ¶ 11. In a brief filed last year, plaintiff alleged that the KDOC defendants were deliberately indifferent because they "support" the position of the PHS defendants. Plaintiff's Motion In Opposition To Defendants' (Charles E. Simmons, William L. Cummings, David R. McKune, And Lee Gibbens) Motion To Dismiss (Doc. #33) filed May 19, 2000 at 13. In his latest brief, plaintiff states that the KDOC defendants are liable because they knew or should have known that inmates were "not receiving necessary medical care, yet fail[ed] to do anything about it." Plaintiff's Suggestions In Opposition To Defendants' Amended Motion For Summary Judgment (Doc. #55) filed May 11, 2001 at 6. None of these allegations clearly state or support an "affirmative link" between the alleged Eighth Amendment violation and the individual KDOC defendants' personal participation, exercise of control or discretion, or failure to supervise. In the complaint, plaintiff has not alleged that individual KDOC defendants knew about his doctor's recommendation for surgery and failed to act, or that they otherwise personally participated in the denial of his constitutional rights. See Delker, 843 F. Supp. at 1393 (judgment entered in favor of superintendent of penitentiary because he "either played no role in, or lacked authority to make, the decision whether to authorize [hernia] surgery"); see also Chase v. Ward, No. 98-4100, 2000 WL 572711, at *2 n. 5 (E.D.Pa. May 10, 2000) ("A warden who is not a medical professional is not deliberately indifferent merely for failing to respond directly to the medical complaints of an inmate who is being treated by professional staff on whose expertise the warden may rely.") (citing Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993)). Accordingly, the Court dismisses plaintiff's claims against the KDOC defendants in their individual capacities. See Roark v. Hollenbeck, 203 F.3d 836, 2000 WL 130705, at *1 (10th Cir. Feb. 4, 2000) (to state claim for supervisory liability, "plaintiff must establish an affirmative link between the alleged constitutional violation and [defendant's] personal participation, his exercise of control or direction, or his failure to supervise.") (quotations and citations omitted); Gagan v. Norton, 35 F.3d 1473, 1476 n. 4 (10th Cir. 1994) (dismissal appropriate absent allegations to support some "affirmative link" between deprivation and personal control by supervisor).
Plaintiff himself apparently concedes the uncertain role of the KDOC defendants. He states that " if discovery reveals that some or all of the KDOC defendants currently named were involved with the decision to delay treatment, summary judgment would not be appropriate as to those defendants." Plaintiff's Suggestions In Opposition To Defendants' Amended Motion For Summary Judgment (Doc. #55) filed May 11, 2001 at 7 (emphasis added). Before the Court can evaluate the evidentiary support for plaintiff's claims, however, plaintiff must allege in the complaint the nature of the involvement so that the KDOC defendants and the Court can ascertain the "affirmative link" between their conduct and the alleged Eighth Amendment violation.
The Court recognizes that plaintiff may have a valid theory of liability against some or all of the KDOC defendants. See Johnson v. Lockhart, 941 F.2d 705, 707 (8th Cir. 1991) (warden and director of department of corrections have duty to supervise adequate surgical procedures for inmates with hernias; fact questions whether they were deliberately indifferent); Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 706 (11th Cir. 1985) (sheriff may be liable if he established or utilized a policy or custom which resulted in deliberate indifference to plaintiff's medical needs); see also Green v. Branson, 108 F.3d 1296, 1303 (10th Cir. 1997) (warden may be liable for deliberate indifference to plaintiff's medical needs based on showing of deliberate indifference and "an affirmative link between the constitutional deprivation and the warden's improper control and failure to supervise). At this point, however, the Court can only speculate as to what theories of liability apply to each defendant. Absent a clear statement of plaintiff's claim against each defendant, the Court cannot evaluate the factual sufficiency of plaintiff's claims. Because plaintiff may be able to allege a set of facts which would establish the KDOC defendants' deliberate indifference and personal participation, however, the Court will allow him leave to amend. See Conley, 355 U.S. at 45-46. On or before August 10, 2001, plaintiff may amend his complaint against the KDOC defendants. IT IS THEREFORE ORDERED that the KDOC defendants' [Amended Motion And] Memorandum In Support Of Defendants' Amended Motion For Summary Judgment (Doc. #42) filed March 1, 2001 be and hereby is SUSTAINED in part and OVERRULED in part. The motion is sustained to the extent defendants ask the Court to dismiss plaintiff's complaint for failure to state a claim. The motion is otherwise overruled.
In response to defendants' motion for summary judgment, plaintiff asks in the alternative for a continuance under Rule 56(f), Fed.R.Civ.P. Plaintiff's request is moot because the Court bases its ruling solely on pleading deficiencies in the complaint and it has granted plaintiff leave to cure those deficiencies.
IT IS FURTHER ORDERED that plaintiff's complaint with regard to defendants Charles E. Simmons, William L. Cummings, David R. McKune and Lee Gibbens is DISMISSED. On or before August 10, 2001, plaintiff may file an amended complaint against those defendants.