Opinion
No. 108,262.
2012-12-21
Billie ELLIOTT, Appellant, v. David R. McKUNE, Appellee.
Appeal from Leavenworth District Court; Dan K. Wiley, Judge. Michael G. Highland, of Bonner Springs, for appellant. Matthew J. Donnelly, Legal Counsel, Lansing Correctional Facility, for appellee.
Appeal from Leavenworth District Court; Dan K. Wiley, Judge.
Michael G. Highland, of Bonner Springs, for appellant. Matthew J. Donnelly, Legal Counsel, Lansing Correctional Facility, for appellee.
Before STANDRIDGE, P.J., ATCHESON, J., and DANIEL L. HEBERT, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Billie Elliott appeals from the district court's judgment denying his K.S.A. 60–1501 petition. Finding no reversible error, we affirm.
Elliott is an inmate at the Lancing Correctional Facility (LCF). On July 6, 2010, Elliott filed a grievance with his unit team complaining about a failure to solve his medical problem. Elliott resubmitted the grievance on August 23, 2010, “after the clinic failed to cure [his] medical problem again!!!” Elliott complained in his grievance about the inability of the prison medical staff to heal the lesions on his chest and his belief that they should do a biopsy. On August 10, 2010, in between filing these grievances, Elliott signed a notice of withdrawal of consent to be treated by Correct Care Solutions (CCS). Elliott stated he was withdrawing consent for CCS “to administer and perform routine examinations, treatment of minor illnesses and injuries, medications [,] diagnostic procedures, accessing my medical files, and any and all medical functions and duties pertaining to the undersigned.”
Elliott's unit team manager responded to the grievance on September 14, 2010. Elliott was not satisfied and appealed to the warden. The warden responded on September 23, 2010, stating the unit team manager's response was appropriate and encouraging Elliott to work with the health care staff to address his health concerns. Elliott appealed to the Secretary of Corrections, and on May 25, 2010, the Deputy Secretary responded stating that the department's physician contract management consultant reviewed Elliott's concern and determined he had received appropriate care. It was recommended that he allow “the HCP” to evaluate his rash and determine whether other medications could be tried before a biopsy was considered. As for the action taken, the Deputy Secretary noted that he was advised that Elliott's skin issue would be monitored for 30 days.
On November 22, 2010, Elliott filed another inmate grievance form with his unit team containing complaints against several LCF employees and medical staff. The essence of his complaint was that he was forced to answer medical questions by LCF staff even though he had signed the notice of withdrawal of consent to medical treatment. Elliott's unit team manager filed a response, stating that Elliott was required to take a TB test and answer a TB questionnaire or be placed in segregation until compliance for the safety of all inmates due to the fact that it is a “highly infectious air borne disease.” Elliott was not satisfied with the response, and on December 13, 2010, he appealed to the warden. In his grievance appeal to the warden, Elliott reiterated his complaint that he should not have to deal with CCS staff's questions since he had signed a withdrawal of consent. At this point, Elliott mentioned his treatment for lesions on his chest, stating:
“It is my belief that if H.S.A. Ellen Bartz was truly worried about my health she would have had her staff give suficcient [ sic ] medical care in regaurds [ sic ] to the Itchy Red Lesions that have been on my chest for over 4 years by taking a skin sample or biopsy, considering that they have yet to find a cure for it and it keeps coming back.”
He also argued that someone other than a CCS medical staff member could have had him fill out the questionnaire. The warden issued a final answer on December 14, 2010, stating that the unit team manager's response was appropriate. The warden stated that Elliott did not have the right to refuse mandatory treatment, regardless of the documents he produced. Elliott apparently appealed this to the Secretary of Corrections, but there are no dates on the appeal document, nor does there appear to be a final decision from the Secretary in the record on appeal.
On April 5, 2011, Elliott filed a petition for writ of habeas corpus under K.S.A. 60–1501 against David R. McKune, the warden of LCF. Elliott alleged that his imprisonment was wrongful because he was being denied adequate medical treatment for his lesion bearing reoccurring rash. Elliott claimed to have had the medical condition for 56 months without being able to get any lasting results from the facility's medical providers.
Elliott was appointed counsel, and on September 22, 2011, the district court issued a writ stating it was going to hold an evidentiary hearing on the motion and asking McKune to file an answer. On October 12, 2011, McKune filed a motion to dismiss, arguing that Elliott had failed to state a claim because he had not shown that he was denied access to medical treatment. McKune argued that instead, the evidence simply showed that Elliott had refused treatment and withdrawn his consent to be treated by LCF medical personnel. Elliott's appointed counsel filed a response to McKune's motion to dismiss. McKune replied to Elliott's response and attached an affidavit from Dr. Arthur Greenberg, in which Dr. Greenberg stated that Elliott had been seen by medical staff at LCF for rashes and lesions four times since May 21, 2007. The rashes/lesions had been treated with various creams. Dr. Greenberg stated that Elliott had been treated appropriately and in accordance with reasonable community standards for his issues.
On May 29, 2012, the district court filed an order denying Elliott's petition for relief. The district court found that Elliott was not denied medical treatment; he simply disagreed with the treatment given by LCF medical personnel. The district court stated that in order to find Elliott's treatment lacking, his condition would have to be so severe that it would be obvious to a layperson that Elliott needed a biopsy, and that was not the case.
On appeal, Elliott argues the district court erred in dismissing his K.S.A. 60–1501 petition because he claims his Eighth Amendment rights under the United States Constitution are being violated. An appellate court reviews a district court's decision on a K.S.A. 60–1501 petition to determine whether the district court's factual findings are supported by substantial competent evidence and are sufficient to support the court's conclusions of law. The district court's conclusions of law are subject to de novo review. Rice v. State, 278 Kan. 309, 320, 95 P.3d 994 (2004).
Deliberate indifference to the serious medical needs of a prisoner can be a violation of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104–05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), reh. denied429 U.S. 1066 (1977). “ ‘Deliberate indifference to serious medical needs is shown when prison officials have prevented an inmate from receiving recommended treatment or when an inmate is denied access to medical personnel capable of evaluating the need for treatment. [Citations omitted.]’ “ Darnell v. Simmons, 30 Kan.App.2d 778, 781, 48 P.3d 1278 (2002).
There is both an objective and a subjective component to deliberate indifference. The objective component is met if the petitioner can demonstrate the deprivation is sufficiently serious. A medical need is sufficiently serious if treatment has been diagnosed for it or if the need for medical treatment is so obvious that a layperson would recognize its need. Laubach v. Roberts, 32 Kan.App.2d 863, 872, 90 P.3d 961 (2004). The subjective component is met if the petitioner can show that a prison official “ ‘knows of and disregards an excessive risk to inmate health or safety.’ “ Darnell, 30 Kan.App.2d at 781 (quoting Farmer v.. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 84 [1994] ).
The district court determined that Elliott was not denied access to medical personnel capable of evaluating his need for treatment, and in fact, Elliott was treated several times for his condition. Elliott simply disagreed with the prescribed treatment and even withdrew his consent to treatment. The district court found there was no evidence that a biopsy was medically necessary, and the state of his condition was not so obvious that a layperson would think that a biopsy was necessary.
The district court's factual findings are supported by substantial competent evidence. McKune filed an affidavit of Dr. Arthur Greenberg, which stated that Elliott's medical records showed that he was seen for complaints of a rash or lesions on his chest in May 2007, June 2008, July 2009, and July 2010. Elliott received treatment each time. Dr. Greenberg stated that Elliott's condition was a “benign skin condition associated with opportunistic fungal infection ... usually seen in young adults. The lesions usually appear on the chest but can be located on any area of the body and [are] characterized by scaly macules of varying size and coloration that can sometimes cause itching.” Dr. Greenberg noted that the condition is chronic and can last for years and that Elliott had “been treated appropriately and in accordance with reasonable community standards of medical care in regard to the issues he has raised in this lawsuit.”
These factual findings are sufficient to support the district court's conclusion that Elliott's Eighth Amendment rights have not been violated. The district court properly concluded that Elliott was not entitled to relief on his K.S.A. 60–1501 petition.
Affirmed.