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Collins v. Correct Care Solutions

United States District Court, Tenth Circuit

June 6, 2013

CORRECT CARE SOLUTIONS, et al., Defendants.


SAM A. CROW, Senior District Judge.

This matter comes before the court on a complaint seeking relief under 42 U.S.C. § 1983, filed pro se by a prisoner incarcerated in a Kansas correctional facility in El Dorado, Kansas (EDCF). Also before the court is plaintiff's motion for leave to proceed in forma pauperis under 28 U.S.C. § 1915.

In Forma Pauperis Motion, 28 U.S.C. § 1915

Plaintiff must pay the full $350.00 filing fee in this civil action. See 28 U.S.C. § 1915(b)(1)(prisoner bringing a civil action or appeal in forma pauperis is required to pay the full filing fee). If granted leave to proceed in forma pauperis, plaintiff is entitled to pay this filing fee over time, as provided by payment of an initial partial filing fee to be assessed by the court under 28 U.S.C. § 1915(b)(1) and by periodic payments from plaintiff's inmate trust fund account as authorized in 28 U.S.C. § 1915(b)(2). Pursuant to 28 U.S.C. § 1915(b)(1), the court is required to assess an initial partial filing fee of twenty percent of the greater of the average monthly deposits or average monthly balance in the prisoner's account for the six months immediately preceding the date of filing of a civil action.

Having considered the financial records provided by plaintiff, the court finds no initial partial filing fee may be imposed at this time due to plaintiff's limited resources, and grants plaintiff leave to proceed in forma pauperis.[1] See 28 U.S.C. § 1915(b)(4)(where inmate has no means to pay initial partial filing fee, prisoner is not to be prohibited from bringing a civil action). Plaintiff remains obligated to pay the full $350.00 district court filing fee in this civil action, through payments from his inmate trust fund account as authorized by 28 U.S.C. § 1915(b)(2).

Initial Review of the Complaint, 28 U.S.C. § 1915A

A federal court must conduct an initial screening of any action in which a prisoner seeks relief from a governmental entity or an officer or employee of such an entity. See 28 U.S.C. § 1915A(a). In conducting the screening, the court must identify any viable claim and must dismiss any part of the action which is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b).

"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). A plaintiff must also provide facts to establish each defendant's personal participation in the alleged deprivation of plaintiff's constitutional rights. Jenkins v. Wood, 81 F.3d 988, 994-95 (10th Cir.1996). Although a pro se litigant's pleadings are to be liberally construed, Erickson v. Pardus, 551 U.S. 89 (2007), plaintiff retains the burden of alleging "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "[C]onclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).

Additionally, a prisoner is required to fully exhaust administrative remedies before bringing a lawsuit for violation of his federally protected rights concerning the conditions of the prisoner's confinement. See 42 U.S.C. § 1997e(a)("No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."). This exhaustion requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).

A prisoner's full exhaustion of administrative remedies requires the prisoner's proper compliance with all steps laid out in the prison system's grievance procedures. Little v. Jones, 607 F.3d 1245, 1249 (10th Cir.2010)(citing Woodford v. Ngo, 548 U.S. 81, 90 (2006)). While a prisoner's failure to exhaust administrative remedies is an affirmative defense, not a pleading requirement the prisoner must anticipate in his complaint, Jones v. Bock, 549 U.S. 199, 212-13 (2007), a court may still dismiss a complaint sua sponte if the prisoner's failure to exhaust is clear from the face of the complaint. Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir.2007).

Having reviewed the form complaint and numerous attached exhibits, the court liberally construes this pro se pleading as identifying six claims, [2] and finds summary dismissal of the complaint appears warranted for the following reasons.

Failure to Exhaust Administrative Remedies

The court first finds the complaint and exhibits provided supports dismissal of the complaint based on plaintiff's failure to fully exhaust administrative remedies on any of his claims.

Plaintiff documents numerous healthcare requests ("sick calls"), informal inmate requests, and letters to staff, but only single administrative grievances on four of his six claims. The dates on those grievances and the responses by the warden or health administrator are close enough to the filing date of plaintiff's complaint to plainly question whether plaintiff had sufficient time to complete the prison grievance procedure by filing appeals to the KDOC Secretary. See Little, 607 F.3d at 1249. Additionally, the grievance plaintiff submitted regarding medical care for his back pain was answered through an interdepartmental memo from the health care ...

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