Opinion
Civil Action No. 04-3293-SAC.
September 21, 2005
ORDER
Plaintiff proceeds pro se on a complaint filed under 42 U.S.C. 1983 while he was a prisoner confined in the El Dorado Correctional Facility (EDCF) in El Dorado, Kansas. Plaintiff seeks damages from the Kansas Department of Corrections (KDOC) and Correct Care Solutions (CCS) for their alleged denial of necessary and appropriate medical treatment for Hepatitis C. By an order dated September 27, 2004, the court directed plaintiff to document full exhaustion of administrative remedies on his claims to avoid dismissal of the complaint without prejudice pursuant to 42 U.S.C. 1997e(a). The court also directed plaintiff to show cause why KDOC should not be dismissed as a defendant because any claim for damages against this state agency would be barred by the Eleventh Amendment.
The record reflects that plaintiff currently resides in North Carolina.
In response, plaintiff amended his complaint to drop KDOC as a defendant, and to name four KDOC employees in their official and individual capacities. Plaintiff also provided extensive materials regarding the presentation of his claims to prison officials.
Plaintiff's motion (Doc. 7) to amend the complaint is granted. See Fed.R.Civ.P. 15(a) (plaintiff may amend complaint "once as a matter of course" prior to defendants filing their response to the complaint).
Plaintiff amended the relief being sought as including assorted injunctive relief. Plaintiff's release from EDCF confinement moots this request. See Martin v. Sargent, 780 F.2d 1334 (8th Cir. 1985) (claim for injunctive relief moot if no longer subject to conditions). See also, Cox v. Phelps Dodge Corp., 43 F.3d 1345, 1348 (10th Cir. 1994) (declaratory relief subject to mootness doctrine).
Having carefully reviewed this material, the court finds plaintiff's inmate staff requests, grievances, appeals, letters, affidavits, requests for information, and other documents are insufficient to demonstrate plaintiff's full exhaustion of administrative remedies on the issues asserted in the complaint. See Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1209-10 (10th Cir. 2003) (plaintiff has burden to sufficiently plead exhaustion of grievance proceedings), cert. denied 125 S.Ct. 344 (2004). Only seven of plaintiff's numerous inmate staff requests developed into formal administrative grievances, and only two of those received full appellate review by the KDOC Secretary. Significantly, plaintiff failed to file grievances and/or pursue full administrative review on any allegations regarding the denial of specific treatment for Hepatitis-C.
In one (Grievance #12190), plaintiff complained that CCS staff was not following prison regulations regarding plaintiff's review his medical records. The Secretary found no action was warranted because plaintiff cited no specific requests.
In the second (Grievance #12152), plaintiff complained of misconduct by a CCS nurse regarding plaintiff's outside medical appointment in July 2004. The Secretary upheld the administrative response which acknowledged possible mis-communication regarding this specific medical appointment.
The court thus concludes the amended complaint should be dismissed without prejudice. Plaintiff's pending motions for leave to proceed in forma pauperis (Doc. 2), for orders requiring production of documents (Docs. 5 and 6), and for appointment of counsel (Docs. 8 and 9) are denied as moot.
IT IS THEREFORE ORDERED that plaintiff's motion to amend the complaint (Doc. 7) is granted, and that the Kansas Department of Corrections is dismissed as a defendant in this matter.
IT IS FURTHER ORDERED that the amended complaint is dismissed without prejudice, pursuant to 42 U.S.C. 1997e(a).
IT IS FURTHER ORDERED that plaintiff's motions (Docs. 2, 5, 6, 8, and 9) are denied as moot.
IT IS SO ORDERED.