Lee v. McManus

• Decision Date: 28 June 1984
• Docket Number: No. 82-3128.,82-3128.
• Citation: 589 F. Supp. 633
• Parties: Robert D. LEE, Plaintiff, v. Patrick D. McMANUS, Formerly Secretary, Kansas Department of Corrections; et al., Defendants.
• Court: U.S. District Court — District of Kansas

589 F. Supp. 633

Robert D. LEE, Plaintiff, v. Patrick D. McMANUS, Formerly Secretary, Kansas Department of Corrections; et al., Defendants.

No. 82-3128.

United States District Court, D. Kansas.

June 28, 1984.

Fred W. Phelps, Jr., Shirley Phelps-Roper, Phelps-Chartered, Topeka, Kan., for plaintiff.

Kenneth R. Smith, Asst. Kansas Atty. Gen., Topeka, Kan., Ethel Louise Bjorgaard, Lou Bjorgaard, Bonner Springs, Kan., for defendants.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This is a civil rights case filed pursuant to 42 U.S.C. § 1983 by an inmate in the Kansas State Penitentiary, Lansing, Kansas.

This court conducted evidentiary hearings in connection with this case on June 30 and September 17, 1982. These hearings dealt with plaintiff's motion for preliminary injunction. The court also has had the benefit of a Martinez Report see Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978), which, at the direction of this court, was filed on behalf of defendants.

This case is now before the court on defendants' motion for summary judgment.

Based on the entire file now before this court and the record before the court made in the evidentiary hearings, the court finds that defendants' motion for summary judgment should be granted.

Defendants allege the facts of this case to be as follows, and these allegations are not substantially controverted by plaintiff.

1. Plaintiff is a paraplegic prisoner serving a sentence of not less than five (5) nor more than twenty (20) years in the Kansas State Penitentiary hereinafter KSP at Lansing, Kansas.

2. Because of his condition, plaintiff has been assigned to the institution infirmary within the KSP.

3. Plaintiff was admitted to the University of Kansas Medical Center hereinafter KUMC on December 12, 1981, immediately after receiving the gunshot wound that resulted in his paraplegia.

4. On December 28, 1981, plaintiff was transferred from the Intensive Care Unit at KUMC to the Rehabilitation Unit, where he participated and was instructed in a rehabilitation program.

5. On February 8, 1982, plaintiff was discharged from KUMC and transferred to the KSP infirmary.

6. Plaintiff suffered from a large sacral decubitus ulcer prior to his initial admission to the KSP infirmary.

7. On March 23, 1982, plaintiff was readmitted to the KUMC for treatment of the sacral decubitus ulcer.

8. On June 2, 1982, plaintiff was returned to the KSP infirmary, where he has been assigned up to the present time.

9. Plaintiff's original complaint was filed on June 17, 1982. Plaintiff's first amended complaint was filed on August 19, 1982, designating as a defendant in the present matter Thomas S. Harvey, M.D., institution physician at KSP.

10. On June 30, 1982, the court conducted an evidentiary hearing to consider plaintiff's motion for a preliminary injunction to determine whether the defendants had been supplying necessary medical care. The court held in an order entered and filed on July 15, 1982, that the application for preliminary injunction should be granted. See Lee v. McManus, 543 F.Supp. 386 (D.Kan.1982).

11. The court, in its order entered July 15, 1982, directed the defendants to provide plaintiff with "the precise medical treatment recommended for plaintiff by physicians at the Med Center." Defendants were also directed to supply the court with a written report describing the medical treatment provided to plaintiff.

12. A second evidentiary hearing was conducted on September 17, 1982, by this court.

13. The court, in an order entered September 22, 1982, recognized that the defendants had made a substantial effort to comply with the terms of the preliminary injunction issued July 15, 1982. The court found that plaintiff was being provided with medical treatment that would prevent irreparable injury until the final disposition of the above-captioned matter. Correlatively, the court also directed the defendants to completely and fully comply with the court's preliminary injunction issued on July 15, 1982; that the defendants provide plaintiff with a sliding board or insure that plaintiff is thoroughly trained in the use of the trapeze; that the defendants supply plaintiff with adequate bathroom facilities; that defendants continue to provide plaintiff with the opportunity to receive physical examinations at KUMC; and that defendants supply any and all medical treatment subsequently prescribed by the medical specialists at KUMC.

14. Defendant Rayl has instructed the infirmary administrator, Marilyn Belshe, to acquire any equipment that is required to insure plaintiff's medical needs are satisfied.

15. Defendants have supplied for plaintiff's use a wheelchair with collapsible arms. A trapeze that had been rented to enhance plaintiff's mobility has been replaced by a sliding board. A commercially manufactured shower chair has been obtained to permit plaintiff to satisfy his personal hygiene requirements. Defendants have acquired and provided for plaintiff's use a set of barbells for plaintiff's physical therapy program. Defendants have modified a restroom facility within the infirmary to provide plaintiff with unrestricted access.

16. Defendants have provided training opportunities for plaintiff to learn to successfully use the special equipment he requires. In addition to plaintiff's initial training at the KUMC Rehabilitation Unit, plaintiff has received specialized therapy instruction from KSP infirmary staff members and from physical therapists employed in the Rehabilitation Unit of St. John's Hospital in Leavenworth, Kansas.

17. The KSP infirmary staff has attempted to initiate a bowel training program for plaintiff's benefit. Plaintiff has elected to utilize suppositories to control his bowel movements.

18. The KSP infirmary staff made an appointment with Dr. John V. Redford, Chairman of the Department of Rehabilitation at KUMC, in order for plaintiff to be evaluated for bracing. Plaintiff declined to keep the appointment, informing the infirmary staff that he did not wish to receive braces.

19. Plaintiff has exhibited increased independence, which is manifested by plaintiff's assumption of the responsibility of cleaning and changing his catheter with supervision.

20. KSP institutional mental health personnel have informed plaintiff of the availability of mental health counseling. Plaintiff has consistently refused to take advantage of these services.

21. Plaintiff's complaint charges the defendants with confining plaintiff "without providing reasonably necessary, adequate, and proper medical care, psychiatric/psychological, and rehabilitative care and treatment; all in violation of the Eighth and Fourteenth Amendments."

22. Plaintiff invoked the jurisdiction of the court pursuant to 42 U.S.C. §§ 1983 and 1988 and 28 U.S.C. §§ 1331 and 1343.

23. Plaintiff brought this action to obtain temporary and permanent injunctive relief; actual damages in excess of One Hundred Thousand Dollars ($100,000); punitive damages in excess of One Hundred Thousand Dollars ($100,000); all costs as provided by 42 U.S.C. § 1988; and such additional relief as the court deems appropriate.

As previously stated, plaintiff does not disagree substantially with the statement of facts as outlined by defendants, but does allege additional facts as follows.

1. Defendant McManus, as Secretary of the Department of Corrections, promulgated certain wrongful policies which denied plaintiff his rights. (See Psycho-Social Evaluation by Drs. Showalter, Doweika and Jain on March 4, 1982; Psychiatric Consultation Report by Dr. Targownik on May 28, 1982.)

2. Defendant McManus "... and his delegates have the sole discretion to designate inmate housing and to transfer state inmates, as well as the authority to contract for specialized housing or treatment. K.S.A. 75-5205, -5206 and -5210(c). Thus, it appears that the housing of plaintiff at Lansing is a discretionary decision attributable to the Secretary of Corrections." Lee v. McManus, 543 F.Supp. 386 (D.Kan., unpublished, 9/22/82) (J. Saffels), p. 5.

3. Plaintiff's sacral decubitus ulcer worsened as a result of the treatment he received at the KSP. (Lee Deposition, p. 3, lines 20-22.)

4. Plaintiff received inadequate nutrition to meet his special needs when he was at the KSP. (Lee Deposition, p. 3, line 25; p. 4, line 1.)

5. Plaintiff's overall physical condition has deteriorated from the lack of physical therapy at KSP. (Lee Deposition, p. 4, lines 2-25; p. 5, lines 1-4.)

6. Plaintiff was not supplied with a wheelchair with removable arms, which is a necessity for his condition. (Lee Deposition, p. 6, lines 2-11.)

7. Between June 2, 1982, and June 30, 1982, plaintiff's bandages for the skin on his legs have been changed twice. The second changing was at the insistence of plaintiff's counsel. (Lee Deposition, p. 7, lines 10-25; p. 8, lines 1-18.)

8. Plaintiff has been unable to bathe himself because of inadequate facilities. (Lee Deposition, p. 8, lines 19-25; p. 9, lines 1-12.)

9. Plaintiff has been submitted to an inadequate supply of drinking water, and this is compounded by the hot temperature in his cell. (Lee Deposition, p. 10, lines 12-23.)

10. The penitentiary's buzzing system, a necessity for plaintiff, has been out of order, causing plaintiff to lack proper medical treatment and sanitation. (Lee Deposition, p. 10, lines 24-25; p. 11, lines 1-20.)

11. Between June 2, 1982, and June 30, 1982, plaintiff only had two (2) bowel movements because defendants only twice gave him the needed suppositories. Because of inadequate facilities at the KSP, plaintiff must rely on suppositories for bowel movements. (Lee Deposition, p. 12, lines 2-17.)

12. Plaintiff has been forced to sit in his own excrement for hours and to use an unsterile catheter. (Lee Deposition, p. 12, lines 18-25; p. 13, lines 1-25; p. 14; p. 15, lines 1-6; p. 18, lines 9-23.)

13. Plaintiff has not been given clothing other than hospital gowns. (Lee Deposition, p. 16,...