Harry v. Hudson

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

SCOTT HARRY,

Plaintiff,

v. CASE NO. 22-3186-JWL-JPO

(FNU) HUDSON, Warden, et al.,

Defendants.

MEMORANDUM AND ORDER TO SHOW CAUSE

This matter is a civil rights action. The Court conducted an initial review of the case and directed Plaintiff to show cause why his Complaint should not be dismissed. (See Memorandum and Order to Show Cause, Doc. 4) (“MOSC”). Before the Court for screening is Plaintiff’s Amended Complaint (Doc. 5). Plaintiff also filed a response to the MOSC (Doc. 6). I. Nature of the Matter before the Court Plaintiff brings this pro se civil rights action under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Although Plaintiff is currently incarcerated at FCI-Edgefield in Edgefield, South Carolina, the events giving rise to his Complaint occurred during his detention at USP-Leavenworth in Leavenworth, Kansas. The Court granted Plaintiff leave to proceed in forma pauperis. Plaintiff alleges that medical care he received at USP-Leavenworth was constitutionally inadequate. He states that he is suffering from a severe left lower abdominal inguinal hernia due to faulty laparoscopic hernia repair performed by Dr. Robert Kenney on January 21, 2020. Plaintiff alleges that Dr. Kenney used defective surgical mesh to attempt to repair the hernia. Plaintiff further states that following the operation, Dr. Kristine Aulepp and Dr. Jason Clark failed to take any action despite his repeated complaints of severe pain and despite the fact that the hernia is now the size of a tennis ball. Plaintiff claims that the defendants violated his Eighth Amendment rights. He also mentions the Federal Tort Claims Act (“FTCA”). 1 Plaintiff names as defendants Donald Hudson, Warden of USP-Leavenworth; Dr. Jason

Clark, physician at USP-Leavenworth; Dr. Kristine Aulepp, Medical Director at USP- Leavenworth; Dr. Robert Kenney, consulting surgeon; and the Food and Drug Administration (“FDA”). Plaintiff seeks $15 million and immediate surgery. 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). To state a Bivens claim, a plaintiff must allege the violation of a constitutional right by a federal officer acting under color of federal authority. Bivens, 403 U.S. at 389. 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

1 In his response to the MOSC (Doc. 6), Plaintiff discusses negligence, negligent design, negligent manufacturing, negligent failure to warn, strict product liability, design defect, manufacturing defect, and failure to warn. He primarily quotes sections from other cases. It is not clear if Plaintiff included this information to support his contention that Dr. Kenney should not have used surgical mesh or if he is attempting to bring each of these claims. Because he has not named a defendant to these claims and because they are not appropriately combined with 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 Amended Complaint and response to the MOSC, the Court finds that this matter is subject to dismissal for the following reasons. A. Failure to State a Claim against Dr. Kenney Plaintiff fails to state a claim against Dr. Kenney under either Bivens or the FTCA. To state a Bivens claim, a plaintiff must allege the violation of a constitutional right by a federal officer acting under color of federal authority. Similarly, to state a claim under the FTCA, the defendant must be a federal employee. See Ingram v. Faruque, 728 F.3d 1239, 1245 (10th Cir. 2013) (citing § 1346(b)(1)). Plaintiff alleges that he was referred to Dr. Kenney for surgery, and that Dr. Kenney

works for a local hospital. See Doc. 6, at 2. Because Dr. Kenney is not a federal employee, Plaintiff fails to state a claim against him under either Bivens or the FTCA. B. Failure to State a Claim against Warden Hudson To establish Bivens liability, a plaintiff “must provide evidence that an individual directly and personally participated in the purported constitutional violation.” Watson v. Hollingsworth, 741 F. App’x 545, 551 (10th Cir. 2018) (unpublished) (citing Pahls v. Thomas, 718 F.3d 1210, 1225, 1226 (10th Cir. 2013)). “Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.” Id. (quoting Iqbal, 556 U.S. at 676, 129 S. Ct. 1937). To prevail on a theory of supervisory liability, a plaintiff 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 constitutional deprivation.” Id. (quoting Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010)). Plaintiff argues that Warden Hudson “is involved due to his supervisory liability because of his superior position over the Medical Director Dr. Kristine Aulepp knew or should have

known what Dr. Jason Clark was doing when he sent Scott Harry to St. Jude’s Hospital who knew or should have known what Dr. Robert Kenney was doing in relation to the use of harmful and dangerous materials that were placed inside the Plaintiff’s body.” Doc. 6, at 6. Plaintiff does not allege that Hudson created or implemented a policy that caused Plaintiff’s harm or that Hudson knew of and disregarded an excessive risk to Plaintiff’s health or safety. Plaintiff has failed to show that Warden Hudson directly and personally participated in any constitutional violation. He has also failed to assert a basis for supervisory liability. Plaintiff should show good cause why his claims against Hudson should not be dismissed. C. Failure to State a Claim against the FDA

Plaintiff names the FDA as a defendant to his Amended Complaint, but he does not include any allegations about the FDA in his Eighth Amendment or FTCA claims. Moreover, as a federal agency, the FDA is not a proper defendant to a Bivens claim or FTCA claim. See F.D.I.C. v. Meyer, 510 U.S. 471, 485-86 (1994) (Bivens claim cannot be brought against federal agency), and Frey v. Town of Jackson, Wyoming, 41 F.4th 1223, 1240 (10th Cir. 2022) (federal agency is never a proper defendant for FTCA claim). The FDA is subject to dismissal from this action. D. Failure to State an FTCA Claim The Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b)(1), 2671–2680, “allows the United States to be sued for claims arising out of negligent or wrongful acts or omissions of its employees, when such employees are acting within the scope of their duties.” Ingram v. Faruque, 728 F.3d 1239, 1245 (10th Cir. 2013) (citing § 1346(b)(1)). “The United States is the only proper defendant in an FTCA action.” Smith v. U.S., 561 F.3d 1090, 1099 (10th Cir. 2009) (quoting Oxendine v. Kaplan, 241 F.3d 1272, 1275 n.4 (10th Cir. 2001)). The FTCA “provides the exclusive avenue to assert a claim sounding in tort against the United States.” Franklin Sav.

Corp., 385 F.3d 1279, 1286 (10th Cir. 2004), cert. denied, 546 U.S. 814 (2005) (citing 28 U.S.C. § 2679(a), which provides that “the FTCA remedy is ‘exclusive’ for all ‘claims which are cognizable under section 1346(b)’”). The FTCA has procedural and jurisdictional requirements. See Staggs v. U.S. ex rel. Dep’t of Health and Human Servs., 425 F.3d 881, 885 (10th Cir. 2005) (stating that the “FTCA’s presentation requirements are jurisdictional and cannot be waived”) (citation omitted). The Tenth Circuit has summarized the FTCA requirements as follows: Under the FTCA, filing an administrative claim with the appropriate federal agency is a prerequisite to bringing a civil action against the United States for damages for the negligence or wrongful act of any United States employee. 28 U.S.C. § 2675(a); Three-M Enterprises, Inc. v. United States, 548 F.2d 293, 294 (10th Cir. 1977) . . . A claim is deemed presented when a federal agency receives from a claimant “an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in sum certain for . . . personal injury, or death alleged to have occurred by reason of the incident.” 28 C.F.R. § 14.2(a). “[B]ringing an administrative claim is a jurisdictional prerequisite to suit, imposed by Congress, which the courts have no power to waive.” Nero v. Cherokee Nation of Oklahoma, 892 F.2d 1457, 1463 (10th Cir. 1989); see also Bradley v. United States, 951 F.2d 268, 270 (10th Cir. 1991).

Industrial Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 967 (10th Cir. 1994). Section 2675(a) provides that “[a]n action shall not be instituted” upon an FTCA claim “unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing . . . .” Id. at n.1. The amount of damages claimed in a lawsuit under the FTCA is limited to “the amount of the claim presented to the federal agency.” 28 U.S.C. § 2675(b); see McNeil v. United States, 508 U.S. 106, 108 n.2 (1993) (citing 28 U.S.C. § 2675(a)). Therefore, exhaustion of administrative remedies is a prerequisite to suit under the FTCA, and courts lack jurisdiction over FTCA claims not presented to the appropriate federal

agency. See 28 U.S.C. § 2675(a); Greenlee v. U.S. Postal Serv., 247 F. App’x 953, 954–55 (10th Cir. 2007). “Because the FTCA constitutes a waiver of the government’s sovereign immunity, the notice requirements established by the FTCA must be strictly construed.” Bradley v. United States by Veterans Admin., 951 F.2d 268, 270 (10th Cir. 1991) (citation omitted). “The requirements are jurisdictional and cannot be waived.” Id. (citation omitted); Duplan v. Harper, 188 F.3d 1195, 1199 (10th Cir. 1999) (“As a jurisdictional prerequisite, the FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies.”) (citing 28 U.S.C. § 2675(a); McNeil, 508 U.S. at 113; Pipkin v. U.S. Postal Service, 951 F.2d 272, 273 (10th Cir. 1991)).

Plaintiff has not alleged facts establishing that he exhausted the administrative tort claim remedy in a proper and timely manner prior to filing this action. Because this Court cannot exercise jurisdiction over an administratively unexhausted claim, Plaintiff’s potential FTCA claim is subject to dismissal under Fed. R. Civ. P. 12(b)(1). Plaintiff is directed to show good cause why any potential FTCA claim should not be dismissed. E. Failure to State a Claim under the Eighth Amendment The Eighth Amendment guarantees a prisoner the right to be free from cruel and unusual punishments. 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 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)). 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). 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.). Where the complaint alleges a “series of sick calls, examinations, diagnoses, and medication,” it “cannot be said there was a ‘deliberate indifference’ to the prisoner's complaints.” Smart v. Villar, 547 F.2d 112, 114 (10th Cir. 1976). As the United States Supreme Court 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.” Thus, 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. 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 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). Plaintiff’s allegations about Defendant Aulepp are that she referred him to Dr. Kenney for operative repair of the hernia. Plaintiff’s allegations about Defendant Clark are that Plaintiff saw him on July 9, 2020, for a follow-up, and Dr. Clark said that he should continue to improve. Plaintiff further alleges that he sent numerous requests to be seen following the surgery due to the pain he was experiencing, and neither Dr. Aulepp nor Dr. Clark were responsive. He argues that the delay in treatment following his surgery has resulted in the regrowth of the hernia, which has still not been repaired or removed, and damage to the surrounding tissue. Plaintiff states that the issue at hand has nothing to do with a disagreement regarding treatment or denial of a specialist. He asserts that the issue is “the disregard and deliberate indifference to the Plaintiff’s continuous pain.” Doc. 6, at 5. However, Plaintiff still does not

provide enough factual detail to support his claims. He does not state how many times he submitted medical requests, how many times he was seen by medical personnel, whether he received any treatment for pain, or even how long he was under Defendant Aulepp and Clark’s care before he was transferred from USP-Leavenworth to FCI-Edgefield. Based on Plaintiff’s allegations in the Amended Complaint and his response to the MOSC, the Court finds that Plaintiff has failed to state an actionable claim for deliberate indifference under the Eighth Amendment and the claim is subject to dismissal. IV. Response and/or Second Amended Complaint Required Plaintiff is required to show good cause why the claims and defendants discussed above

should not be dismissed for the reasons stated herein. Plaintiff is also given the opportunity to file a complete and proper second 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, and 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 (22-3186-JWL-JPO) 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. The amended complaint should concisely (1) raise only properly joined claims and defendants; (2) allege sufficient facts to state a claim for a federal constitutional violation and show a cause of action in federal court; and (3) allege sufficient facts to show personal participation by each named defendant. If Plaintiff does not file a second amended complaint within the prescribed time that cures all the deficiencies discussed herein, this matter will be decided based upon the current deficient Amended Complaint and may be dismissed without further notice for failure to state a claim.

IT IS THEREFORE ORDERED THAT Plaintiff is granted until January 13, 2023, in which to show good cause, in writing, why Plaintiff’s Amended Complaint should not be dismissed for the reasons stated herein. IT IS FURTHER ORDERED THAT Plaintiff is granted until January 13, 2023, in which to file a complete and proper amended complaint to cure all the deficiencies discussed herein.

The clerk is directed to send § 1331 forms and instructions to Plaintiff. IT IS SO ORDERED. Dated December 13, 2022, in Kansas City, Kansas.

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