Dempsey (ID 76654) v. Easter

• Court: District Court, D. Kansas
• Decided: July 30, 2021
• Docket: 5:20-cv-03263
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

SILKY L. DEMPSEY,

Plaintiff,

v. CASE NO. 20-3263-SAC

JEFF EASTER, et al.,

Defendants.

MEMORANDUM AND ORDER TO SHOW CAUSE

Plaintiff Silky L. Dempsey, a prisoner1 currently being held at the Sedgwick County Jail (SCJ) in Wichita, Kansas, brings this pro se civil rights action under 42 U.S.C § 1983. He proceeds in forma pauperis. For the reasons discussed below, Plaintiff is ordered to show cause why his Complaint should not be dismissed. I. Nature of the Matter before the Court Mr. Dempsey’s Complaint (ECF No. 6) alleges that his rights under the Eighth Amendment were violated. Plaintiff has suffered from seizures since 2001 and is listed as a chronic care patient at SCJ as a result. His allegations center around an incident that occurred on October 23, 2018. He began to experience an “aura” indicating an oncoming seizure. Deputy Staton helped him to booking for his medication. There, Shawna (LNU) denied him his medication, and he was transported to the medical clinic in a wheelchair. In the clinic, Plaintiff was left unattended with

1 It appears from online state court records that Plaintiff is a pretrial detainee awaiting trial on several charges. the brakes off for some period of time longer than five minutes. He had a seizure and fell out of the wheelchair, hitting his head on the ground. Plaintiff was taken to an isolation cell in the clinic and placed on the floor on his right side. Plaintiff states he has a “soft spot” on the right side of his head due to a traumatic brain injury, and clinic staff knew they should lay him on his left side. He alleges he now suffers from sleep paralysis, dizzy spells, loss of balance, loss of the ability to

concentrate, constant migraines, slurred speech, the inability to climb stairs, and fluid leaking out of his right ear. Plaintiff claims deputies and medical staff at the SCJ were deliberately indifferent to his serious medical needs and were grossly negligent. Plaintiff names as defendants Jeff Easter, Sheriff of Sedgwick County; Laura Oblinger, Facility Attorney; Brenda Deitzman, Colonel; (FNU) White, Colonel; Jared Schechter, Captain; Paula Smith, Lieutenant; Jeremy Woodson, Lieutenant; Brent Rogers, Sergeant; Sarah Halley, Clinical Administrator; Denise Mendoza, Clinical Administrator; Shawna (LNU), Clinical Personnel; and Travis (LNU), Clinical Personnel. Mr. Dempsey seeks the relief in the form of

punitive damages of $2.5 million, damages for pain and suffering in the amount of $2.5 million, and damages for negligence in the amount of $2.5 million. 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). 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). 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 After reviewing Plaintiff’s Complaint with the standards set out above in mind, the Court finds that the Complaint is subject to summary dismissal under 28 U.S.C. § 1915A(b) and 28 U.S.C. § 1915(e)(2). A. Failure to state a claim

The Eighth Amendment guarantees a prisoner the right to be free from cruel and unusual punishments.2 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 “deliberate indifference” standard has two components: “an

2 The protections provided by the Eighth Amendment do not directly apply to pretrial detainees, such as Mr. Dempsey. See Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). However, under the Fourteenth Amendment, pretrial detainees are “entitled to the degree of protection against denial of medical attention which applies to convicted inmates under the Eighth Amendment.” Shue v. Laramie Cty. Det. Ctr., 594 F. App'x 941, 944–45 (10th Cir. 2014) (quoting Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009)). 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 lay person 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)). In this case, Plaintiff has arguably demonstrated a serious medical need, thus meeting the objective component. His difficulty in stating a claim arises with the subjective component. Plaintiff’s allegations demonstrate SCJ personnel may have been negligent or even grossly negligent in failing to set the brake on his wheelchair and in laying him on his left side, but it is well-settled that deliberate indifference requires more than mere negligence. See Farmer v. Brennan, 511 U.S. 825, 835 (1994). The Tenth Circuit has made clear that “[a] 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 Corrections, 165 F.3d 803, 811 (10th Cir. 1999). As the United States Supreme Court has 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....” 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 alleged action or inaction of SCJ staff members as described in the Complaint fails to rise to the level wantonness or conscious disregard of excessive risk required to state a claim of cruel and unusual punishment under the Eighth Amendment. B. Defendants Even if Plaintiff had stated a claim for violation of his Eighth Amendment rights, several of the defendants he names are subject to dismissal. Plaintiff names Sheriff Jeff Easter as a defendant but fails to explain how Easter personally participated in the alleged deprivation of his constitutional rights, appearing to rely solely on the supervisory status of Easter. An essential element of a civil rights claim against an individual is that person’s direct personal participation in the acts or inactions upon which the complaint is based. Kentucky v. Graham, 473 U.S. 159, 165– 66 (1985); Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir. 2006); Foote v. Spiegel, 118 F.3d 1416, 1423–24 (10th Cir. 1997). Conclusory allegations of involvement are not sufficient. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable to ... § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.”). As a result, a plaintiff is required to name each defendant not only in the caption of the complaint, but again in the body of the complaint and to include in the body a description of the acts taken by each defendant that violated plaintiff’s federal constitutional rights. Mere supervisory status is insufficient to create personal liability. Duffield v. Jackson, 545 F.3d 1234, 1239 (10th Cir. 2008) (supervisor status is not sufficient to create § 1983 liability). An official’s liability may not be predicated solely upon a theory of respondeat superior. Rizzo v. Goode, 423 U.S. 362, 371 (1976); Gagan v. Norton, 35 F.3d 1473, 1476 FN4 (10th Cir. 1994), cert. denied, 513 U.S. 1183 (1995). A plaintiff alleging supervisory liability must show “(1) the

defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation.” Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010), cert. denied, 563 U.S. 960 (2011). “[T]he factors necessary to establish a [supervisor’s] § 1983 violation depend upon the constitutional provision at issue, including the state of mind required to establish a violation of that provision.” Id. at 1204 (citing Iqbal, 129 S. Ct. at 1949). Plaintiff’s claims against Sheriff Easter are subject to dismissal. In addition, Plaintiff has not alleged that Defendants Oblinger, Deitzman, White, Schechter, Smith, Woodson, Rogers, Abbott, Hallacy, Mendoza, or Travis (LNU) personally

participated in the alleged wrongful conduct. Plaintiff must explain what each defendant did to him, when the defendant did it, how the defendant’s actions harmed him, and what specific legal right he believes the defendant violated. Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). Because Plaintiff has failed to include such explanation, he has not adequately pled a cause of action under § 1983 against any of these defendants. C. Request for Attorney to be Appointed Plaintiff includes in his Complaint a request to have an attorney appointed to represent him. There is no constitutional right to appointment of counsel in a civil case. Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989); Carper v. DeLand, 54 F.3d 613, 616 (10th Cir. 1995). The decision whether to appoint counsel in a civil matter lies in the discretion of the district court. Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991). “The burden is on the applicant to convince the court that there is sufficient merit to his claim to warrant the appointment of counsel.” Steffey v. Orman, 461 F.3d 1218, 1223 (10th Cir. 2006) (quoting Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004)). It is not enough “that having counsel appointed would have assisted [the

prisoner] in presenting his strongest possible case, [as] the same could be said in any case.” Steffey, 461 F.3d at 1223 (quoting Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)). In deciding whether to appoint counsel, courts must evaluate “the merits of a prisoner’s claims, the nature and complexity of the factual and legal issues, and the prisoner’s ability to investigate the facts and present his claims.” Hill, 393 F.3d at 1115 (citing Rucks, 57 F.3d at 979). Because the Court has not determined that Plaintiff’s case may proceed and because Plaintiff appears able to present his claims adequately, the request is denied at this time. IV. Response Required For the reasons stated herein, it appears that Plaintiff’s complaint is subject to dismissal

under 28 U.S.C. §§ 1915A(b) and 1915(e)(2)(B). Plaintiff is therefore required to show good cause why his Complaint should not be dismissed. Plaintiff is warned that his failure to file a timely response may result in the Complaint being dismissed for the reasons stated herein without further notice.

IT IS THEREFORE ORDERED that Plaintiff is granted to and including August 30, 2021, in which to show good cause, in writing, why his Complaint should not be dismissed for the reasons stated herein. IT IS SO ORDERED. DATED: This 30th day of July, 2021, at Topeka, Kansas.

s/_Sam A. Crow_____ SAM A. CROW U.S. Senior District Judge