Collins v. Males

• Court: District Court, D. Kansas
• Decided: May 15, 2023
• Docket: 5:23-cv-03102
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

DEMARIO KALISH COLLINS,

Plaintiff,

v. CASE NO. 23-3102-JWL

CRAIG MALES, Lieutenant #3, Coffeyville Police Dept., et al.,

Defendants.

MEMORANDUM AND ORDER TO SHOW CAUSE

Plaintiff DeMario K. Collins brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff proceeds in forma pauperis. Plaintiff is a pretrial detainee being held at the Montgomery County Jail (“MCJ”) in Independence, Kansas. For the reasons discussed below, Plaintiff is ordered to show cause why his Complaint should not be dismissed or to file an amended complaint that cures the identified deficiencies. I. Nature of the Matter before the Court Plaintiff alleges in the Complaint (Doc. 1) that he was shot multiple times with bean bags by Lt. Craig Miles during his arrest by the Coffeyville Police Department on July 18, 2022. He was arrested for interfering with a law enforcement officer and aggravated assault. Plaintiff states that he was unarmed. He sustained a broken finger and a hernia during the arrest. Plaintiff was taken to the MCJ where he remained for ten (10) days. While at the MCJ, the jail nurse, Misty Wood, gave him “minimal” treatment of a splint for his finger and over the counter pain relievers. Upon release, Plaintiff went to the Coffeyville Medical Center where he was diagnosed with a broken finger and a hernia. He alleges that he suffers lasting effects and symptoms. Plaintiff claims that Miles and Wood violated his Eighth Amendment right to be free from cruel and unusual punishment. He seeks relief in the form of written apologies, the

payment of his medical costs, and compensation for his pain, suffering, and mental anguish. II. Statutory Screening of Prisoner Complaints The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). “Prisoner” is defined as “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915A(c). Additionally, with any litigant, such as Plaintiff, who is proceeding in forma pauperis, the Court has a duty to screen the complaint to determine its sufficiency. See 28 U.S.C.

§ 1915(e)(2). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)–(2). “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 (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).

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, 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 a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citation omitted). 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 (citation omitted). Under this new standard, “a plaintiff must ‘nudge his claims across the line from conceivable to plausible.’” Smith, 561 F.3d at 1098 (citation omitted). “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 v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S. Ct. at 1974). III. Discussion A. Excessive Force “Excessive force claims are cognizable under the Fourth, Fifth, Eighth, and Fourteenth Amendment, depending on where in the criminal justice system the plaintiff is at the time of the challenged use of force.” Vette v. K-9 Unit Deputy Sanders, 989 F.3d 1154, 1169 (10th Cir. 2021) (citation omitted). “When an ‘excessive force claim arises in the context of an arrest or

investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment.’” Id. (quoting Graham v. Connor, 490 U.S. 386, 394 (1989)). “To state an excessive force claim under the Fourth Amendment, plaintiffs must show both that a seizure occurred and that the seizure was unreasonable.” Id. (quoting Bond v. City of Tahlequah, 981 F.3d 808, 815 (10th Cir. 2020) (emphasis in original) (quotation marks omitted)). In assessing reasonableness, a court “looks at the facts and circumstances as they existed at the moment the force was used, while also taking into consideration the events leading up to that moment.” Id. (quoting Emmett v. Armstrong, 973 F.3d 1127, 1135 (10th Cir. 2020)). The inquiry is an objective one, and one that considers the totality of the circumstances. Id. (citation omitted). Reasonableness is “judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. (quoting Graham, 490 U.S. at 396). “The right to make an arrest . . . necessarily carries with it the right to use some degree of physical coercion . . . to effect it.” Edwards v. City of Muskogee, Oklahoma, 841 F. App’x 79,

83 (10th Cir. 2021) (unpublished) (quoting Lundstrom v. Romero, 616 F.3d 1108, 1126 (10th Cir. 2010) (internal quotation marks omitted)). “Reasonableness does not require that officers use alternative or less intrusive means if the conduct is otherwise reasonable.” Arnold v. City of Olathe, Kansas, Case No. 2:18-cv-02703-HLT, 2021 WL 3129408, at *8 (D. Kan. July 23, 2021) (citation omitted). Furthermore, officers may take protective action without waiting for the “glint of steel.” Estate of Larsen v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008). An officer would be justified in using more force than necessary if he reasonably (but mistakenly) believed that a subject was likely to fight back. Myers v. Brewer, No. 17-2682, 2018 WL 3145401, at *7 (D. Kan. June 27, 2018), aff'd, 773 F. App'x 1032 (10th Cir. 2019) (citing Larsen, 511 F.3d at

1260). The Supreme Court in Graham outlined three factors that guide the reasonableness analysis: (1) “the severity of the crime at issue,” (2) “whether the suspect poses an immediate threat to the safety of the officers or others,” and (3) “whether he is actively resisting arrest or attempting to evade arrest by flight.” Vette, 989 F.3d at 1169 (quoting Graham, 490 U.S. at 396). Plaintiff claims that Defendant Males used excessive force in arresting him. The facts asserted by Plaintiff include only that he was being arrested for interference with a law enforcement officer and aggravated assault, that Males shot him with bean bags two times, and that he was unarmed. He does not describe the circumstances of the arrest, such as where and when it occurred, his own conduct during the arrest, and the distance between him and Males. Nor does Plaintiff describe the circumstances leading to the aggravated assault and interference with a law enforcement officer charges. Plaintiff does not supply sufficient facts to state a claim for excessive force. He will be given an opportunity to show cause why the claim should not be dismissed or to file an amended complaint.

B. Denial of Medical Care 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 F. App’x 667, 672 (10th Cir. 2008) (citing Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005)). The same standard applies for a pretrial detainee’s claim under the Fourteenth Amendment. Strain v. Regalado, 977 F.3d 984, 989 (10th Cir. 2020). “[D]eliberate indifference to a pretrial detainee’s serious medical needs includes both an objective and a subjective component.” Id. To establish the objective component, “the alleged deprivation must

be ‘sufficiently serious’ to constitute a deprivation of constitutional dimension.” Id. at 989–90 (citations omitted). A medical need is sufficiently serious “if it is 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.” Id. at 990 (citation omitted). “The subjective component is met if a prison official knows of and disregards an excessive risk to inmate health or safety.” Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir. 2005) (citing Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (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). The “negligent failure to provide adequate medical care, even one constituting medical malpractice, does not give rise to a constitutional violation.” Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 811 (10th Cir. 1999) (citing Estelle v. Gamble, 429 U.S. 97, 105–06

(1976)). 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.). 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). 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)). Plaintiff alleges MCJ Nurse Wood gave him “minimal” treatment of a splint for his finger and over the counter pain relievers. Upon release ten days after the arrest, Plaintiff went to the Coffeyville Medical Center where he was diagnosed with a broken finger and a hernia. He

alleges that he suffers non-specific “lasting effects and symptoms.” Doc. 1, at 4. Plaintiff has not established that either injury amounted to a sufficiently serious medical need to meet the objective component of a deliberate indifference claim. However, even if a broken finger and some type of hernia meet the objective component, Plaintiff’s Complaint fails to establish the subjective component. The facts outlined by Plaintiff do not demonstrate that Wood knew of and disregarded an excessive risk to Plaintiff’s health. With his finger injury, there is no indication that a splint was not the appropriate treatment. As for the hernia, Wood was apparently not aware of the injury. She may have been negligent in diagnosing him or inadvertently failed to provide treatment for a hernia, but neither possibility amounts to a

constitutional violation. Further, if this is treated as a delayed treatment situation, Plaintiff has not shown that he suffered substantial harm as a result of the ten-day delay. The Complaint fails to state a claim for violation of Plaintiff’s rights under the Fourteenth Amendment based on the denial of health care. IV. Response and/or Amended Complaint Required Plaintiff is required to show good cause why the claims discussed above should not be dismissed for the reasons stated herein. Plaintiff is also given the opportunity to file a complete and proper amended complaint upon court-approved forms that cures all the deficiencies discussed herein. To add claims, significant factual allegations, or change defendants, a plaintiff must submit a complete amended complaint. See Fed. R. Civ. P. 15. An amended complaint is not simply an addendum to the original complaint but instead completely supersedes it. Therefore, any claims or allegations not included in the amended complaint are no longer before the Court. It follows that a plaintiff may not simply refer to an earlier pleading, and the amended complaint

must contain all allegations and claims that a plaintiff intends to pursue in the action, including those to be retained from the original complaint. Plaintiff must write the number of this case (23-3102-JWL) at the top of the first page of his amended complaint, and he must name every defendant in the caption of the amended complaint. See Fed. R. Civ. P. 10(a). Plaintiff should also refer to each defendant again in the body of the amended complaint, where he must allege facts describing the unconstitutional acts taken by each defendant including dates, locations, and circumstances. Plaintiff must allege sufficient additional facts to show a federal constitutional violation. Plaintiff is given time to file a complete and proper amended complaint in which he

concisely (1) raises only properly joined claims and defendants; (2) alleges sufficient facts to state a claim for a federal constitutional violation and show a cause of action in federal court; and (3) alleges sufficient facts to show personal participation by each named defendant. If Plaintiff does not file an amended complaint within the prescribed time that cures all the deficiencies discussed herein, this matter will be decided based upon the current deficient Complaint and may be dismissed without further notice for failure to state a claim. IT IS THEREFORE ORDERED that Plaintiff is granted until June 15, 2023, in which to show good cause, in writing, why Plaintiff’s Complaint should not be dismissed for the reasons stated herein. IT IS FURTHER ORDERED that Plaintiff is granted until June 15, 2023, in which to file a complete and proper amended complaint to cure all the deficiencies discussed herein.

The clerk is directed to send § 1983 forms and instructions to Plaintiff.

IT IS SO ORDERED. DATED: This 15th day of May, 2023, at Kansas City, Kansas.

S/ John W. Lungstrum JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE