United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
Crow U.S. Senior District Judge
Ray Floyd Garcia, Jr., is hereby required to show good cause,
in writing, to the Honorable Sam A. Crow, United States
District Judge, why this case should not be dismissed due to
the deficiencies in Plaintiff's Complaint that are
Nature of the Matter before the Court
brings this pro se civil rights action pursuant to
42 U.S.C. § 1983. Although Plaintiff is currently
incarcerated at the Lansing Correctional Facility, the events
giving rise to the Complaint occurred while Plaintiff was
housed at the El Dorado Correctional Facility in El Dorado,
Kansas. On November 9, 2017, Plaintiff paid a partial filing
fee in the amount of $5.00. The Court granted Plaintiff an
extension of time to December 12, 2017, to submit the
remaining $395.00 of the filing fee. (Doc. 9.) Plaintiff
submitted a filing fee in the amount of $400 on December 7,
2017. The Clerk returned the fee due to the overpayment.
Plaintiff should resubmit the filing fee in the amount $395.
alleges the following in his Complaint. On October 9, 2019,
CO Martin and CO Van Scoter told Plaintiff that RN Shaw was
going to give Plaintiff a tetanus shot. Plaintiff told Nurse
Shaw that he wanted it given to him in his hip. Shaw
responded that it has to be given in the arm. Nurse Shaw
grabbed Plaintiff's arm, yanking him towards her at his
door frame, while Plaintiff was handcuffed behind his back.
CO Martin and CO Van Scoter were present and did not
intervene to stop Nurse Shaw. Plaintiff's arm was bruised
and swollen from the shot and from the pulled muscle from
Shaw yanking his arm. Plaintiff alleges that Nurse Shaw used
excessive force in violation of his Eighth Amendment rights
when she gave him the tetanus shot in his arm despite
Plaintiff telling her not to give him the shot in his arm
because it would cause pain in his arm. Plaintiff seeks
Statutory Screening of Prisoner Complaints
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
an employee of a governmental entity. 28 U.S.C. §
1915A(a). The Court must dismiss a complaint or portion
thereof if a plaintiff has raised claims that are legally
frivolous or malicious, that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
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)
(citations omitted); Northington v. Jackson, 973
F.2d 1518, 1523 (10th Cir. 1992). A court liberally construes
a pro se complaint and applies “less stringent
standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007). In
addition, the court accepts all well-pleaded allegations in
the complaint as true. Anderson v. Blake, 469 F.3d
910, 913 (10th Cir. 2006). On the other hand, “when the
allegations in a complaint, however true, could not raise a
claim of entitlement to relief, ” dismissal is
appropriate. Bell Atlantic Corp. v. Twombly, 550
544, 558 (2007).
se litigant's “conclusory allegations without
supporting factual averments are insufficient to state a
claim upon which relief can be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
“[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitlement to relief'
requires “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S. at 555 (citations
omitted). The complaint's “factual allegations must
be enough to raise a right to relief above the speculative
level” and “to state a claim to relief that is
plausible on its face.” Id. at 555, 570.
Tenth Circuit Court of Appeals has explained “that, to
state a claim in federal court, a complaint must explain what
each defendant did to [the pro se plaintiff]; when
the defendant did it; how the defendant's action harmed
[the plaintiff]; and, what specific legal right the plaintiff
believes the defendant violated.” Nasious v. Two
Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir.
2007). The court “will not supply additional factual
allegations to round out a plaintiff's complaint or
construct a legal theory on a plaintiff's behalf.”
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th
Cir. 1997) (citation omitted).
Tenth Circuit has pointed out that the Supreme Court's
decisions in Twombly and Erickson gave rise
to a new standard of review for § 1915(e)(2)(B)(ii)
dismissals. See Kay v. Bemis, 500 F.3d 1214, 1218
(10th Cir. 2007) (citations omitted); see also Smith v.
United States, 561 F.3d 1090, 1098 (10th Cir. 2009). As
a result, courts “look to the specific allegations in
the complaint to determine whether they plausibly support a
legal claim for relief.” Kay, 500 F.3d at 1218
(citation omitted). Under this new standard, “a
plaintiff must ‘nudge his claims across the line from
conceivable to plausible.'” Smith, 561
F.3d at 1098 (citation omitted). “Plausible” in
this context does not mean “likely to be true, ”
but rather refers “to the scope of the allegations in a
complaint: if they are so general that they encompass a wide
swath of conduct, much of it innocent, ” then the
plaintiff has not “nudged [his] claims across the line
from conceivable to plausible.” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing
Twombly, 127 S.Ct. at 1974).
fails to state a claim of excessive force under the Eighth
Amendment's Cruel and Unusual Punishments Clause. See
Estate of Booker v. Gomez, 745 F.3d 405, 419 (10th Cir.
2014) (stating that “claims of excessive force
involving convicted prisoners arise under the Eighth
Amendment”). The Eighth Amendment's prohibition
against “cruel and unusual punishments” applies
to the treatment of inmates by prison officials. See
Whitley v. Albers, 475 U.S. 312, 319- 21 (1986). Prison
officials violate inmates' Eighth Amendment rights when
they subject them to the “unnecessary and wanton
infliction of pain.” Id. at 319.
“[W]henever prison officials stand accused of using
excessive physical force in violation of the Cruel and
Unusual Punishments Clause, the core judicial inquiry is . .
. whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and
sadistically to cause harm.” Hudson v.
McMillian, 503 U.S. 1, 6-7 (1992) (citation omitted).
“The Eighth ...