Marks v. Roberts

1

NOT DESIGNATED FOR PUBLICATION

No. 115,091

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

RICKEY MARKS,
Appellant,

v.

RAY ROBERTS,
SECRETARY OF CORRECTIONS,
Appellee.


MEMORANDUM OPINION

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed December
2, 2016. Affirmed.

Michael G. Highland, of Bonner Springs, for appellant.

Sherri Price, legal counsel, of Lansing Correctional Facility, and Roger W. Slead and Richard M.
Acosta, of Horn, Alyward & Bandy, LLC, of Kansas City, Missouri, for appellee.

Before GARDNER, P.J., ATCHESON, J., and STUTZMAN, S.J.

Per Curiam: In this appeal from the district court's denial of his K.S.A. 2015 60-
1501 petition, Rickey Marks argues that the Kansas Department of Corrections was
deliberately indifferent to his serious medical needs, thus violating his United States
Constitution Eighth Amendment right to be free from cruel and unusual punishment.
Finding no deliberate indifference, we affirm.



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Factual and procedural background

The facts in this case are undisputed. Rickey Marks has been in prison since
October 1, 2009. According to his prison medical file, in September 2012, Marks
weighed 258 pounds and was medically classified as morbidly obese. He had undergone
heart and carpal-tunnel surgeries and had several ongoing medical conditions, including
hypertension, recurrent groin pain, low back pain, athlete's foot, and chronic heel pain.
Marks reported to the doctor at this September 2012 appointment that he had been treated
unsuccessfully for plantar fasciitis and that his heel pain had begun about 6 years earlier.

At that September 2012 doctor's appointment, which is the first appointment
included in the medical file provided to the district court, Marks was prescribed and
received heel compression cups to treat his heel pain.

In January 2013, Marks reported that the heel cups were not helping his pain. He
received prescriptions for two medications and was referred to Dr. Larry Bumguardner, a
doctor affiliated with the company that provides inmate medical care. In February 2013,
Dr. Bumguardner reported that Marks was still in pain, and he prescribed new heel cups
and a different medication. Marks received the new heel cups a few days later.

In October 2013, Marks saw a podiatrist outside of the prison system, Dr. Donald
Gentry. Dr. Gentry diagnosed Marks with plantar fasciitis and pronation syndrome and
performed steroid injections in both of Marks' heels. Marks later reported that he had
received temporary pain relief from the injections. Dr. Gentry also recommended, but did
not specifically prescribe, special orthotic shoes, night splints, and physical therapy, and
he discussed but did not recommend surgery.

In January 2014, Marks saw Dr. Gentry for a follow-up appointment. This time,
Dr. Gentry prescribed night splints and physical therapy. In early March 2014, the
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physical therapist noted that Marks had not received any pain relief from his physical-
therapy exercises or from electrical-stimulation therapy. In March and April 2014,
several documents in Marks' medical file show that prison healthcare staff was
considering what to do about Marks' heel pain.

On May 20, Marks filed a grievance about his medical care, alleging that he had
not received the prescribed night splints or recommended orthotic shoes.

On June 3, Marks saw Dr. Gentry again. At this visit, Marks again received steroid
injections in both heels, and Dr. Gentry prescribed a medication and special orthotic
shoes from Hanger Clinic. Prison healthcare providers submitted a formal request for the
shoes and made an appointment at Hanger for Marks to be fitted for the shoes.

On July 21, Marks' grievance was finally denied at the last level of administrative
review, and on July 30, he filed his K.S.A. 2015 Supp. 60-1501 petition.

On August 6, Marks received night splints, custom arch supports, and extra depth
shoes from Hanger Clinic. On October 7, Marks saw Dr. Gentry again and received
another round of steroid injections in his heels.

On October 15, Marks saw Dr. Paul Corbier, a doctor affiliated with the company
contracted to provide inmate care, who reported that Marks was not using his night
splints regularly but that the arch support and shoes did help with walking. Dr. Corbier
also noted that he thought Marks was not doing his heel exercises regularly. Dr. Corbier
told Marks that he needed to use the night splits, do his exercises, and keep wearing the
shoes; he also prescribed a new medication to help with the heel pain.

On December 30, Marks saw Dr. Gentry again, and he prescribed a neuropathy
cream to treat nerve pain in Marks' feet as well as a different kind of orthotic shoe.
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Around March 2015, Marks filed a second grievance about his medical care, alleging he
had not yet received the prescribed orthotic shoes and neuropathy cream. Marks received
the cream on March 13. The grievance was unilaterally deemed resolved on March 30.
Marks was fitted for the shoes at Hanger Clinic on April 16. Marks filed a third grievance
about his medical care, regarding a follow-up podiatrist appointment which was denied
on April 23. He received the shoes on June 2.

In June and July 2015, Marks had 6 weeks of physical-therapy appointments,
where his treatments included heel exercises, electrical stimulation, rolling his feet on ice,
manual therapy, and tennis-ball massage. The physical-therapy records indicate that the
treatment did not relieve Marks' pain.

Marks saw an in-prison healthcare provider, Dr. Karl Saffo, on July 21, August 10,
and September 15, 2015. At these appointments, Dr. Saffo adjusted Marks' medication in
response to his pain complaints. On October 1, Dr. Saffo gave Marks diabetic socks and
two different creams for his feet. Marks saw Dr. Saffo on October 5 and 12, and Dr.
Saffo gave Marks a pumice stone for his feet at the second appointment.

On October 22, the district court held an evidentiary hearing on Marks' K.S.A.
2015 Supp. 60-1501 petition. Marks described his pain and the medical treatment he had
received. The district court accepted an affidavit in place of live testimony from Dr.
Corbier. Dr. Corbier had treated Marks and reviewed Marks' medical file. He concluded
that Marks had received appropriate medical care at all times. Marks' medical file was
attached to Dr. Corbier's affidavit. The district court then denied Marks' K.S.A. 2015
Supp. 60-1501 petition, finding that Dr. Corbier's affidavit and Marks' medical file
directly contradicted Marks' claim that his medical needs had been ignored and neglected.
Marks appeals that decision.
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Substantial Evidence Supports the District Court's Conclusion That the Kansas
Department of Corrections Was Not Deliberately Indifferent to Marks' Medical
Condition.

Marks argues that the Kansas Department of Corrections was deliberately
indifferent to his serious medical needs by delaying his medical treatment, which violated
his Eighth Amendment right to be free from cruel and unusual punishment.

When the district court denies a prisoner's K.S.A. 2015 Supp. 60-1501 petition
after holding an evidentiary hearing, we ask on review whether the district court's factual
findings are supported by substantial evidence and are sufficient to support the court's
conclusions of law. Rice v. State, 278 Kan. 309, 320, 95 P.3d 994 (2004); Hooks v. State,
51 Kan. App. 2d 527, 530, 349 P.3d 476 (2015). Evidence is substantial when a
reasonable person would accept it as sufficient to support a conclusion. Rice, 278 Kan. at
320.

The Eighth Amendment to the United States Constitution and Section 9 of the
Kansas Constitution Bill of Rights both prohibit cruel and unusual punishment. These
constitutional guarantees include the right of prison inmates to receive adequate medical
care and treatment. Levier v. State, 209 Kan. 442, 445, 448, 497 P.2d 265 (1972). An
inmate who has not received adequate medical care can raise that complaint in a K.S.A.
2015 Supp. 60-1501 petition. 209 Kan. at 449; Darnell v. Simmons, 30 Kan. App. 2d 778,
780, 48 P.3d 1278 (2002).

An inmate's Eighth Amendment right to be free from cruel and unusual
punishment is violated when prison officials show deliberate indifference to an inmate's
serious medical need, causing an unnecessary and wanton infliction of pain. Estelle v.
Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976); Roe v. Elyea, 631 F.3d
843, 856-57 (7th Cir. 2011). To establish an Eighth Amendment violation in these
circumstances, the inmate must show two things.
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First, the inmate must show that his or her medical need is "sufficiently serious."
Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994);
Darnell, 30 Kan. App. 2d at 781. This is an objective standard meaning that a doctor has
diagnosed and prescribed treatment for the medical need or that the need is obvious
enough for a lay person to recognize that medical attention is required. Farmer, 511 U.S.
at 834; Darnell, 30 Kan. App. 2d at 781. Marks has shown that his heel pain was a
serious medical condition. His medical record, summarized above, shows doctors have
diagnosed and repeatedly prescribed medicine and treatment for his heel pain, thus
meeting the objective test. See Farmer, 511 U.S. at 837.

Second, the inmate must show that a prison official was deliberately indifferent to
that serious medical need, meaning the official knew about and disregarded an excessive
risk to the inmate's health or safety. Farmer, 511 U.S. at 837; Darnell, 30 Kan. App. 2d
at 781. This standard requires something more than ordinary negligence or a simple lack
of due care, but something less than an intention to cause harm. Farmer, 511 U.S. at 835-
36; Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980); Darnell, 30 Kan. App. 2d at 781
(citing Cupples v. State, 18 Kan. App. 2d 864, 869, 861 P.2d 1360 [1993]); see Estelle,
429 U.S. at 105-06. Deliberate indifference occurs when a prison doctor ignores an
inmate's medical needs or when a prison official prevents an inmate from seeking
medical personnel or from receiving recommended treatment. Estelle, 429 U.S. at 104;
Ramos, 639 F.2d at 575; Darnell, 30 Kan. App. 2d at 781.

The district court found that Marks had received a considerable amount of medical
attention and treatment. Substantial evidence supports that conclusion. As Marks' medical
record indicates, he received medication, two different types of heel cups, steroid
injections, physical therapy, orthotic shoes and night splints, neuropathy and other
creams, some medications, diabetic socks, and a pumice stone. Marks' medical needs
were not ignored or neglected. No one at the prison disregarded an excessive risk to
Marks' health. See Farmer, 511 U.S. at 837.
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Admittedly, there were some delays in some of Marks' treatment. From the dates
they were specifically prescribed, Marks had to wait about 7 months for night splints and
about 2 months for his first pair of orthotic shoes. Then Marks had to wait about 2
months for neuropathy cream and 5 months for his second pair of orthotic shoes. But he
eventually received everything his doctors prescribed. At most, the delays in Marks'
treatment establish that prison officials may have been negligent in following through
with certain prescribed treatments, not that they knew about and disregarded an excessive
risk of harm to Marks' health or safety. See Farmer, 511 U.S. at 837.

Finally, to the extent that Marks simply disagrees with the course of treatment he
received for his heel pain, his disagreement does not amount to a violation of his right to
adequate health care. See Stolte v. Cummings, 31 Kan. App. 2d 639, 642, 70 P.3d 695
(2003); Darnell, 30 Kan. App. 2d at 782; see also Estelle, 429 U.S. at 107 ("A medical
decision not to order an X-ray, or like measures, does not represent cruel and unusual
punishment.").

Because the district court's factual conclusions are supported by substantial
evidence and those factual conclusions are sufficient to support the district court's legal
conclusions, we affirm the district court's judgment.

Affirmed.