ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS

JULIE ROBINSON, District Judge

This comes before the Court on motions to dismiss filed by defendants Bruce and Cummings (Doc. 20) and defendant Brodie (Doc. 31). While plaintiff Romel Abu-Fakher filed a response to the motion of defendants Bruce and Cummings (Doc. 24), he has not filed a response to the motion of defendant Brodie. District of Kansas local rules require that a party file a response to a motion to dismiss within twenty-three days or the motion will be deemed unopposed. Because more than twenty-three days has elapsed since defendant Brodie filed his motion to dismiss on January 12, 2005, it is deemed unopposed. An unopposed motion is "considered and decided as an uncontested motion, and ordinarily will be granted without further notice." Nevertheless, the Court has reviewed the record and finds that defendant Brodie's motion to dismiss should be granted for the reasons addressed below.

The Court grants these motions on several grounds. First, plaintiff's suit against the defendants in their official capacity for money damages is barred by the Eleventh Amendment. Secondly, to the extent plaintiff seeks injunctive relief, the Complaint fails to state a claim because the defendants' alleged acts do not rise to the level of a constitutional violation. Finally, the Complaint fails to state a claim because the defendants are shielded from suit in their individual capacity by qualified immunity.

PLAINTIFF'S COMPLAINT

Plaintiff, a Kansas state prisoner, filed this § 1983 action pro se against: (1) "COII Brodie, Sgt.;" (2) "L.E. Bruce, Warden Hutchinson Correctional Facility;" and (3) "William L. Cummings, Secretary of Corrections Designee of the State of Kansas." Plaintiff claims that defendant Brodie battered him by willfully and maliciously knocking plaintiff to the ground, which resulted in a fracture to plaintiff's hand. He claims he was denied proper medical care and that defendants Bruce and Cummings ignored his right to proper treatment. Plaintiff seeks: $100,000 in damages for pain and suffering and permanent injury to his hand; "proper treatment by a bones specialist;" and "a court order that would not allow COII Bodie to come into cotact (sic) with me in his personal nor official capacity while employed at the Hutchinson Correctional Facility."

DISCUSSION

Administrative Exhaustion

Defendants Bruce and Cummings move to dismiss on the basis that plaintiff failed to exhaust his administrative remedies, as required by the Prison Litigation Reform Act (PLRA), because plaintiff failed to follow the State's Internal Management Policy and Procedures (IMPP) #01-118 in prosecuting his grievances. Pursuant to the PLRA, "no action shall be brought with respect to prison conditions" until a prisoner exhausts his available administrative remedies. Exhaustion is mandatory such that "[r]esort to a prison grievance process must precede resort to a court." A complaint that fails to allege the requisite exhaustion of remedies is tantamount to one that fails to state a claim upon which relief may be granted. To avoid dismissal, "[a] prisoner must: (1) plead his claims with a short and plain statement . . . showing that [he] is entitled to relief . . . and (2) attach a copy of administrative dispositions to the complaint, or, in the absence of written documentation, describe with specificity the administrative proceedings and its outcome."

IMPP #01-118, which defendants attach to their motion to dismiss, provides an administrative procedure for inmate claims for property damage or personal injury. Defendants do not explain how plaintiff failed to comply with that procedure. The Complaint pleads administrative exhaustion, and attaches written documentation. The Complaint states:

I did file grievances with the institutional officials as by the rules and regulation of the State-of-kansas' Department of Correction however, the response of the Unit Team, The Warden, and The Secretary of Correction did not rectify nor resolve the issue, my hand still untreated, or damaged, and COII Bodie continues to remain disrespectful and unrepentant.

Attached to the Complaint are a number of memoranda and forms outlining plaintiff's pursuit of his grievances. Plaintiff attached a January 20, 2004 form, "Inmate Request to Staff Member," where plaintiff complained that although his hand was x-rayed on January 14 and he was told there was nothing wrong with it, his hand was bruised and still hurt. Plaintiff queried, "is the doctor sure that my hand is not broken?" A "Kansas Department of Corrections Inmate Grievance Form," dated January 25, 2004, relates plaintiff's complaint that:

On 1/13/04, I was returning from the gym to my cell after chow, when COII Brodie cane (sic) from behind me and pushed me down very hard. I fell on my hand and it started hurting. A couple of inmates and an officer assisted me up, however, Brodie never even said "excuse me." I went to the clinic because my hand hurt and was given ibuprofen and told to return the next day for x-rays. On 1-14-04 I went to the clinic for x-rays whereupon I was told that they [sic] were negative and that my hand was alright. However, my hand continued to swell and be painful. A few days later my hand and fingers began to turn purple and the pain increased. After 10 days, and repeated medical and inmate request submissions, the x-rays were reread and it was found that my finger was broken and dislocated, then, instead of setting the bones and placing my finger in a splint, I was wrapped in an ace bandage and told to return in two weeks. I was given nothing for pain.

First, Brodie should be directed on how to appropriately to an emergency in a crowded area. I had no idea of a situation going on and he came up behind me. This was done maliciously as Brodie knew who I was from a previous encounter in B1 on 1/12/04. He has no absolute right of way without an expressed verbal order giving way to his intent to pass. I have no radio nor was I even close to even hear of a situation being broadcasted over the radio but Brodie knew who I was and did so intentionally. He should be made to pay medical expenses, pain and suffering.

Second, CCS was incompetent in assessing my medical problems and the incompetency continues by not rendering adequate medical attention. I should have finger bone reset. I do not trust the attention rendered by the CCS staff at this facility and should be seen by an outside specialist especially since it has now been over two weeks and bones are not set properly.

Someone from the Unit Team signed this complaint on February 17, 2004, but no written response was provided. That same day, plaintiff signed and returned the form, signifying that he "was not satisfied with the Unit Team response and wish[ed] to forward to the Warden's office."

Defendant Bruce, the warden, signed an Interdepartmental Memorandum dated February 23, 2004, in which he concluded that no action was warranted. Defendant Bruce stated that he found no evidence to support or substantiate plaintiff's complaint, noting "[t]he incident occurring on 1-13-04 was not intentional and you have been receiving continual medical care for your injury."

On March 11, 2004, plaintiff signed a form, "Appeal of Grievance to Secretary of Corrections," in which he continued to grieve the actions of "Sgt. Bodie (who) pushed me down with his hands as he was responding to an emergency, (A two inmates' fight emergency.)" He continued to grieve that he "didn't receive what I believe the proper treatment for a broken hand," while acknowledging that "they called me to the clinic and told me that they have had re-read my xray and found out that I was right, my hand was broken, so they bandaged it and sent me back to my cell."

On April 5, 2004, defendant Cummings, the Secretary of Corrections Designee, signed a "Grievance-Response on Appeal," in which he concluded that "the inmate has access to adequate medical care," explaining:

We have asked the Kansas Department of Corrections, Health Care Contract Consultant to review the care and treatment that the inmate is receiving. We have been advised that this review is now complete. The information that we have been provided indicates that the care and treatment that is currently being made available to the inmate is consistent with prevailing community standards. Mr. Abu-Fakher's xray suggests that he has a healed fracture, as read by the health care practitioner at HCF. If Mr. Abu-Fakher continues to have problems, we would suggest that he access health care though sick call.

Abu-Fakher does not show or allege that he has been denied access to his attending C.C.S. Physician, nor does he provide any evidence that he has been denied any care that has been recommended by his attending C.C.S. physician.

Thus, the record demonstrates that plaintiff pursued the administrative process, filing grievances with a staff member, then the Unit Team, the warden, and finally the Secretary of Corrections office. Plaintiff administratively pursued the grievances raised in this lawsuit, that defendant Brodie injured him and that he received inadequate medical treatment for the injury. Thus, he has satisfied the PLRA's total exhaustion requirement. Eleventh Amendment Immunity

The defendants are entitled to absolute immunity under the Eleventh Amendment. The Eleventh Amendment states that "[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." The Supreme Court has repeatedly explained that the amendment confirms the historically-rooted understanding of sovereign immunity, which is that federal jurisdiction over suits against unconsenting states — even by its own citizens — "was not contemplated by the Constitution."

It is settled law that under the Eleventh Amendment, states are immune from suit unless (1) the state consents to suit, or (2) Congress validly abrogates the states' immunity. The State of Kansas does not consent to suit under this statute, and Congress may not abrogate state immunity for section 1983 claims under its Fourteenth Amendment authority. Moreover, a state is not a "person" for purposes of section 1983. As a result, the Eleventh Amendment bars suits under 42 U.S.C. § 1983 against the State of Kansas.

Eleventh Amendment immunity also extends to state officials who are sued in their official capacity. Such suits are tantamount to suits directly against the state, since plaintiff seeks monetary damages that would be paid out of the state's treasury. Plaintiff's Complaint names all defendants in their official capacity, as a correctional officer, a warden and a designee of the Secretary of Corrections. The allegations are all directed at actions defendants took in their official capacity as officer and employees of the Kansas Department of Corrections and/or Hutchinson Correctional Facility. Defendants are entitled to absolute immunity for acts performed in their official capacity, for state officials acting in their official capacity are not persons within the meaning of 42 U.S.C. § 1983. Qualified Immunity

Plaintiff seeks monetary damages, but arguably seeks injunctive relief as well. The Complaint prays for affirmative injunctive relief, treatment by a bone specialist, and preclusive injunctive relief, that defendant Brodie be allowed no contact with plaintiff. To the extent that this constitutes injunctive relief not shielded by the Eleventh Amendment, these defendants are shielded from liability by qualified immunity. The defense of qualified immunity shields government officials performing discretionary functions from individual liability under § 1983 unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Where a qualified immunity defense is asserted in a Rule 12(b)(6) motion, the court must apply a heightened pleading standard, and require the complaint to contain "specific, non-conclusory allegations of fact sufficient to allow the district court to determine that those facts, if proved, demonstrate that the actions taken were not objectively reasonable in light of clearly established law."

The Tenth Circuit has developed a framework for analyzing claims of qualified immunity: once a defendant pleads qualified immunity, the plaintiff bears the burden of, (1) coming forward with sufficient facts to show that the defendant's actions violated a federal constitutional or statutory right, and (2) demonstrating that the right violated was clearly established at the time of the conduct at issue. "In order to carry [this] burden, the plaintiff must do more than identify in the abstract a clearly established right and allege that the defendant has violated it. Rather, the plaintiff must articulate the clearly established constitutional right and the defendant's conduct which violated the right with specificity. . . ." The Court must first determine whether plaintiff has alleged a deprivation of a constitutional right; only after determining that plaintiff has alleged a deprivation of a constitutional right, does this Court ask whether the right allegedly violated was clearly established at the time of the conduct at issue.

Here, plaintiff's complaint is devoid of the specificity required to overcome the defense of qualified immunity. Plaintiff alleges that defendant Brodie willfully and maliciously knocked him down, causing injury. Although plaintiff does not identify the constitutional right allegedly violated, the Court surmises that plaintiff is alleging excessive force, in violation of the Eighth Amendment. To state a cognizable Eighth Amendment claim for use of excessive force, the plaintiff must allege facts indicating that the force was not applied "in a good-faith effort to maintain or restore discipline," and that the force was applied "maliciously and sadistically to cause harm." The plaintiff does not need to show that he suffered serious injury, but the extent of his injury is relevant in evaluating the necessity and wantonness of the force. Not "every malevolent touch by a prison guard gives rise to a federal cause of action." De minimus uses of force are not prohibited by the Constitution.

Although the Complaint states that defendant Brodie wilfully and maliciously knocked plaintiff down, plaintiff states no facts that support this conclusory statement, other than that defendant Brodie knew who plaintiff was from an undescribed encounter the day before this incident. Furthermore, in the administrative complaints he filed and attached to the Complaint, plaintiff acknowledges that this incident occurred in the course of an emergency as defendant Brodie rushed to break up a fight between inmates. In his administrative complaint, plaintiff asserted that Brodie should be trained how to respond to "an emergency in a crowded area," and he implies that defendant Brodie should have verbally ordered him out of the way before knocking into him. In short, plaintiff has failed to state with sufficient specificity that defendant Brodie injured him maliciously and willfully.

Moreover, even assuming that defendant Brodie wilfully and maliciously knocked plaintiff down, this would not constitute a constitutional violation. Simple battery does not constitute deprivation of a right "secured by the Constitution." As the Supreme Court stated in Screws v. United States, "[t]he fact that a prisoner is assaulted, injured or even murdered by state officials does not mean that he is deprived of any rights secured by the Constitution. . . ." Because plaintiff has failed to demonstrate deprivation of a constitutional right, plaintiff has failed to overcome the defense of qualified immunity enjoyed by defendant Brodie.

With respect to defendants Bruce and Cummings, plaintiff does not complain about their contribution to any injury he may have suffered. Rather, the Complaint alleges that defendants Bruce and Cummings failed to provide plaintiff with proper medical treatment. Plaintiff does not contend that these defendants were qualified to administer medical treatment; he apparently contends that they violated a constitutional right in not ensuring that he received proper medical treatment.

Assuming the facts asserted in the Complaint are true, plaintiff fell and fractured his hand on January 13 and despite receiving immediate medical attention, the fracture was not diagnosed until 10 days later when the x-rays were read again, apparently in response to plaintiff's complaints of continued pain and bruising. Thus, assuming the facts asserted in the Complaint are true, health care practitioners were negligent in not discovering plaintiff's fracture when first examined. But improper medical care and treatment does not constitute deprivation of rights secured by the Constitution, unless the care provided was grossly inadequate. According to the administrative complaint filed by plaintiff, he was seen on the day of the injury, given ibuprofen and told to return for x-rays the next day. Plaintiff returned to the clinic the next day and his hand was x-rayed. Someone read the x-ray and apparently told him his hand was not broken. Thereafter his hand continued to swell and be painful. After plaintiff complained, someone read the x-rays again and determined that plaintiff's finger was broken. Plaintiff's hand was bandaged, and he was told to return to the clinic in two weeks. By April 5, 2004, when defendant Cummings denied plaintiff's appeal, plaintiff's hand had been treated, x-rayed again and determined to be healed. Defendant Cummings advised plaintiff that if he should have any further problems, he should access health care through sick call.

While deliberate indifference to a prisoner's serious medical needs is actionable under § 1983 as a violation of the Eighth Amendment, plaintiff has not shown deliberate indifference by the defendants. On the contrary, Plaintiff received immediate attention, and when the swelling and pain continued, he received additional medical attention and care. To be sure, a fractured hand is a medical need that is serious, from an objective point of view, since 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." But defendants did not disregard the injury; and reasonable measures, although delayed, were taken to address the medical need.

Nor has Plaintiff made the requisite showing that the defendants' conduct was objectively unreasonable. Plaintiff's injury was first treated as a sprain or lesser injury, but when the x-ray was read again and the initial mis-diagnosis discovered, he was then appropriately treated for the broken hand, and the fracture healed. Nor has Plaintiff shown subjectively unreasonable conduct. He does not state any evidence that health care practitioners intended to mis-diagnose or improperly treat his injury. Nor does he state any evidence that he was denied medical care. His conclusory statement that he should have been sent to a private doctor, is insufficient to state a claim.

In short, the record does not demonstrate that defendants either disregarded plaintiff's injury or deliberately ignored or failed to address his injury. Under these circumstances, defendants Bruce and Cummings are entitled to qualified immunity, for "qualified immunity shields an individual government official performing discretionary functions from liability for civil damages insofar as his or her conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Moreover, a government official will also be shielded if he or she was not acting "with a `malicious intent' to deprive the Plaintiff of a constitutional right or to cause him `other injury.'" Because defendant Brodie did not participate in, or perform any act that related to Plaintiff's claim of inadequate medical care, Plaintiff fails to state a claim against him. Because defendants Bruce and Cummings, in the exercise of their discretionary functions, are shielded by qualified immunity, Plaintiff fails to state a claim against them.

CONCLUSION

This case is dismissed on several grounds. Plaintiff seeks monetary damages against the defendants, state officials whom he sues in their official capacity. The Eleventh Amendment bars this suit. Secondly, to the extent plaintiff seeks injunctive relief, the Complaint fails to state a claim because the defendants' alleged acts do not rise to the level of a constitutional violation. Even assuming that defendant Brodie intentionally battered plaintiff by knocking him down as he rushed to break up an inmate altercation, Brodie's actions did not constitute a deprivation of plaintiff's constitutional rights. Nor do the actions of defendants Bruce and Cummings rise to the level of a constitutional violation. There is no showing that they denied or precluded plaintiff from getting medical treatment for his broken hand. Further, the actions of these defendants are shielded from liability by virtue of qualified immunity.

IT IS THEREFORE ORDERED THAT:

1. Defendants' Bruce and Cummings Motion to Dismiss (Doc. 20) is GRANTED.

2. Defendant Brodie's Motion for Leave to File Motion Response Out of Time (Doc. 30) is GRANTED.

3. Defendant Brodie's Motion to Dismiss (Doc. 31) is GRANTED.

1. Plaintiff's Motion to Reinstate Law Library Law Books and Legal Service Access (Doc. 9);

2. Defendants' Motion for Leave to File Motion to Dismiss Prior to Filing Martinez Report (Doc. 19);

3. Plaintiff's Motion for Reconsideration of Order Granting in forma pauperis, Denying Motion to Transfer to Federal Custody and Denying Motion for Protective Order (Doc. 22);

4. Plaintiff's Motion for Jury Trial (Doc. 25);

5. Plaintiff's Motion for Ruling (Doc. 28); and

6. Plaintiff's Motion to Appoint Counsel (Doc. 29).

IT IS SO ORDERED.