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Faulkner v. Correct Care Solutions

United States District Court, Tenth Circuit

October 3, 2013

GARY LYN FAULKNER, Plaintiff,
v.
CORRECT CARE SOLUTIONS, et al., Defendants.

ORDER

SAM A. CROW, Senior District Judge.

Plaintiff proceeds pro se on a complaint filed under 42 U.S.C. § 1983 while plaintiff was confined in the Johnson County Adult Detention Center in Olathe, Kansas. Also before the court is plaintiff's motion for leave to proceed in forma pauperis under 28 U.S.C. § 1915.

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

Plaintiff must pay the full district court 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 the $350.00 district court 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 reviewed plaintiff's motion, 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. 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).

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

Because plaintiff is a prisoner, the court is required to screen the complaint to identify any viable claim, and must dismiss the complaint or any part of it 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(a)-(b).

A pro se party's complaint must be given a liberal construction. Erickson v. Pardus, 551 U.S. 89 (2007). However, a party proceeding pro se has "the burden of alleging sufficient facts on which a recognized legal claim could be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). To state a claim for relief, the complaint must present allegations of fact, assumed to be true, that "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint must present "enough facts to state a claim to relief that is plausible on its face." Id. at 570. At this stage, the court accepts all well-leaded allegations as true and views them in the light most favorable to the plaintiff. Id. at 555.

Having considered the complaint, the court finds it is subject to being dismissed for the following reasons.

In this action, plaintiff seeks a complete investigation of CCS and other unspecified relief on allegations that he was denied appropriate and necessary medical care while confined in JCADC, and was denied meaningful redress from grievance forms. Plaintiff first cites a sick call on July 2, 2013, to report a knot forming on his penis for which he claims nothing was done but to administer antibiotics. Plaintiff next claims his requests for follow up care by an orthopedic doctor and neurologist concerning plaintiff's prior hospitalization for two back fusions were denied. And third, plaintiff states his grievance forms are either not returned or the responses provided are "frivolous and designed to cover up facts."

Exhaustion of Administrative Remedies

The Prison Litigation Reform Act (PLRA) requires that a prisoner exhaust his administrative remedies before bringing a lawsuit for violation of his federally protected rights. 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."). "[T]he PLRA's 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 compliance with the exhaustion requirement in § 1997e(a) is not jurisdictional, but rather is an affirmative defense to be raised by defendants opposing the prisoner's suit. Jones v. Bock, 549 U.S. 199, 216 (2007). Thus a prisoner is not required to plead or demonstrate that he has exhausted available administrative remedies. Id. But when it is clear from the face of the complaint that he has failed to do so and that his failure to exhaust is not due to the action or inaction of prison officials that thwarted the prisoner's attempt to exhaust, summary dismissal of the complaint without prejudice is appropriate. See Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir.2007)(district court can dismiss prisoner complaint for failure to state a claim if it is clear on the face of the complaint that the prisoner has not exhausted available administrative remedies); Tuckel v. Grover, 660 F.3d 1249, 1252 (10th Cir.2011)("an administrative remedy is not available' under the PLRA if prison officials prevent, thwart, or hinder a prisoner's efforts to avail himself of the administrative remedy")(brackets and internal quotation marks omitted).

The court approved form complaint plaintiff submitted in this case includes a question that asks plaintiff whether he had previously sought informal or formal relief from appropriate administrative officials regarding the misconduct alleged in the complaint. Plaintiff ...


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