Terrell (ID 92440) v. Vital Core Health Strategies

• Court: District Court, D. Kansas
• Decided: June 2, 2023
• Docket: 5:23-cv-03129
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

DALE JEROME TERRELL,

Plaintiff,

v. CASE NO. 23-3129-JWL

VITAL CORE HEALTH STRATEGIES, et al.,

Defendants.

MEMORANDUM AND ORDER TO SHOW CAUSE

Plaintiff Dale Jerome Terrell is hereby required to show good cause, in writing to the undersigned, why this action should not be dismissed due to the deficiencies in Plaintiff’s Complaint that are discussed herein. Plaintiff is also given the opportunity to file an amended complaint to cure the deficiencies. I. Nature of the Matter before the Court Plaintiff brings this pro se civil rights action under 42 U.S.C. § 1983. Plaintiff is in custody at the Sedgwick County Jail in Wichita, Kansas (“SCJ”). The Court granted Plaintiff leave to proceed in forma pauperis. As Count I, Plaintiff alleges Fourteenth Amendment due process and equal protection violations. (Doc. 1, at 3.) Plaintiff alleges that on January 15, 2023, he was denied proper medical care when he was “racially profiled and tested for pscofilus [sic] on the orders from the medical provider Audrey Griffin.” Id. at 6. Plaintiff alleges that he sought ointment for itching, dryness and scarring that he was experiencing due to a rash. He made requests on January 15, 18, and 26, 2023, and February 13, 2023. Id. As Count II, Plaintiff alleges medical malpractice in violation of K.S.A. § 60-513.1 (Doc. 1, at 3.) Plaintiff alleges that he was detained at the SCJ on January 9, 2023. Id. at 6. On January 13, 2023, he noticed red bumps on his body and he placed a sick call through the provider. Id. On January 15, 2023, he was examined by Jennifer Brownlee and placed on “extensive amounts” of prednisone and Zyrtec. Id. On January 18, 2023, his condition began to

worsen and he put in another sick call. Id. The provider, Nurse Audrey Griffin, increased his dosage of prednisone and “racially profiled [him] due to his ethnicity [and] made the assumption that what [Plaintiff] was dealing with was psifolus [sic] and therefore had [him] tested.” Id. Plaintiff put in another sick call on February 13, 2023, and was seen again by Nurse Griffin. Id. at 7. He was told that his test came back negative and when Plaintiff explained that his condition was getting worse, Nurse Griffin took a picture on her personal phone to get a second opinion. Id. Nurse Griffin then treated Plaintiff for scabies. Id. Plaintiff alleges that his whole upper torso, arms, legs, neck, face, chest and back, are covered with “massive scarring.” Id. As Count III, Plaintiff alleges medical malpractice in violation of K.S.A. § 65-1127.

Plaintiff claims that RN Griffin “is in the beginning stages of dementia.” (Doc. 1, at 4.) Plaintiff names as defendants: Vital Core Health Strategies, the health provider for the SCJ; and Audrey Griffin, Health Provider/RN at the SCJ. For relief, Plaintiff seeks to have Vital Core pay for the cost to reduce the scarring on his upper-body in the amount of $100,000. 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

1 The Court notes that K.S.A. § 60-513 provides that a two-year statute of limitations applies to various types of actions. 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 1. Vital Core Plaintiff names Vital Core Health Strategies as a defendant. In the Tenth Circuit, “to hold a corporation liable under § 1983 for employee misconduct, a plaintiff must demonstrate the existence of the same sort of custom or policy that permits imposition of liability against municipalities under Monell v. Department of Social Services, 436 U.S. 658, 694 . . . (1978).” Wishneski v. Andrade, 572 F. App’x 563, 567 (10th Cir. 2014) (unpublished) (citations omitted). A corporation may not be held liable based upon respondeat superior because “vicarious liability is inapplicable to . . . § 1983 suits.” Rascón v. Douglas, 718 F. App’x 587, 589–90 (10th Cir. 2017) (unpublished) (quoting Iqbal, 556 U.S. at 676); see also Spurlock v. Townes, 661 F. App’x 536, 545 (10th Cir. 2016) (unpublished); Green v. Denning, 465 F. App’x 804, 806 (10th Cir. 2012) (unpublished) (“An entity ‘cannot be held liable solely because it employs a

tortfeasor—or, in other words, [it] cannot be held liable under § 1983 on a respondeat superior theory.’”) (citation omitted); Williams v. Correct Care Sols., No. 19-3075-SAC, 2019 WL 2005920, at *2 (D. Kan. May 7, 2019); Jefferson v. Aramark Corr. Servs., Case No. 17-3161- SAC, 2017 WL 6557419, at *2 (D. Kan. Dec. 22, 2017); Livingston v. Correct Care Sols., Case No. 07-3256-SAC, 2008 WL 1808340, at *1–2 (D. Kan. Apr. 17, 2008) (stating that “[a] policy is a formal statement by the private corporation” and “[a] custom is a persistent, well-settled practice of unconstitutional misconduct by employees that is known and approved by the corporation.”). “[A] failure-to-train claim may not be maintained . . . without a showing of a

constitutional violation by the allegedly un-, under-, or improperly-trained officer.” Valdez v. Macdonald, --- F.4th ---, 2023 WL 3051270, a n.14 (10th Cir. April 24, 2023) (citations omitted); see also Estate of Burgaz v. Bd. of Cty. Comm’rs, 30 F.4th 1181, 1189 (10th Cir. 2022) (“[T]o be held liable for either a failure-to-train or failure-to-supervise claim, an individual officer (or deputy) must have committed a constitutional violation.”) (citations omitted); Myers v. Okla. Cnty. Bd. of Cnty. Comm’rs, 151 F.3d 1313, 1317 (10th Cir. 1998) (stating that “failure to train claims, like their basic excessive force claim against the individual officers, requires a predicate showing that the officers did in fact use excessive force”). This action is subject to dismissal as against Defendant Vital Core. Plaintiff must allege facts showing a policy or a custom of Vital Core that caused his injury. Plaintiff has failed to allege such facts and has failed to allege a failure to train claim. Therefore, Plaintiff is directed to show good cause why his claim against Defendant Vital Core should not be dismissed. 2. Medical Care “[D]eliberate indifference to a pretrial detainee’s serious medical needs includes both an

objective and a subjective component.” Strain v. Regalado, 977 F.3d 984, 989 (10th Cir. 2020) (finding that although a pretrial detainee’s claim is based on the Fourteenth Amendment, the same standard for Eighth Amendment claims applies). 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). 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 must also satisfy the subjective prong. The Supreme Court has insisted upon actual knowledge: “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.” Farmer v. Brennan, 511 U.S. 825, 837 (1994) (emphasis added). Plaintiff has failed to show that Nurse Griffin was both aware of facts from which the inference could be drawn that a substantial risk of serious harm existed, and that she also drew the inference. Plaintiff’s claims suggest, at most, negligence. 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)). Plaintiff’s malpractice claims are subject to dismissal. In addition, to the extent that Plaintiff cites K.S.A. 65-1127, the Court notes that this statute provides for the reporting of alleged malpractice incidents. It does not provide a cause of action under § 1983. Plaintiff should show good cause why his medical claims should not be dismissed for failure to state a claim. 3. Due Process and Equal Protection Plaintiff has failed to state a due process or equal protection claim. Racially profiling claims generally arise in the context of selective law enforcement. To state a claim for racial profiling in violation of § 1983, a Plaintiff must allege facts that plausibly establish that “the

defendant’s actions [1] had a discriminatory effect and [2] were motivated by a discriminatory purpose.” Marshall v. Columbia Lea Reg’l Hosp., 345 F.3d 1157, 1168 (10th Cir. 2003) (citation omitted). This two-part test—discriminatory intent and effect—“is a demanding one.” Id. at 1167. The discriminatory intent need not be the sole factor motivating state action, but it must be a motivating factor. To establish discriminatory effect, a plaintiff may rely on “statistical evidence; the identification of a similarly situated individual who could have been, but was not, stopped or arrested; and, in certain circumstances, anecdotal evidence establishing an officer’s pattern of similar discriminatory behavior.” United States v. Alabi, 597 F. App’x 991, 996 (10th Cir. 2015). Plaintiff concludes, without any factual support, that Nurse Griffin “racially profiled” and discriminated against him because she ordered a test in an attempt to diagnose his rash. But he does not explain how ordering this test, standing alone, supports an Equal Protection claim under § 1983 premised on racial profiling. Plaintiff’s claim appears to be frivolous and is subject to dismissal for failure to state a claim.

IV. Response and/or Amended Complaint Required Plaintiff is required to show good cause why his Complaint 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, 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 (23-3129-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 (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 may be dismissed without further notice for failure

to state a claim. IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is granted until July 5, 2023, in which to show good cause, in writing to the undersigned, why Plaintiff’s Complaint should not be dismissed for the reasons stated herein. IT IS FURTHER ORDERED that Plaintiff is also granted until July 5, 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 June 2, 2023, in Kansas City, Kansas.

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