United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
CROW SENIOR U.S. DISTRICT JUDGE.
Plaintiff Randy Garcia-Hill is hereby required to show good
cause, in writing, to the Honorable Sam A. Crow, United
States District Judge, why this action should not be
dismissed due to the deficiencies in Plaintiff's
Complaint that are discussed herein.
Nature of the Matter before the Court
brings this pro se civil rights action pursuant to
42 U.S.C. § 1983. Plaintiff is incarcerated at the
Winfield Correctional Facility in Winfield, Kansas.
alleges that in May of 2015, his finger was broken during a
fight. Plaintiff had to put in several different
“sick-call” slips to health care before they
would treat him. When they did treat Plaintiff, they gave him
ibuprofen and told him that everything looked fine and they
would schedule an x-ray. Plaintiff told them that he was in a
lot of pain and that his finger felt like it was broken.
After filing several grievances, Plaintiff received an x-ray
which revealed that he had a fracture. In June of 2015, the
APRN noted that his finger was not healing properly and he
was referred to orthopedics. The “orthopededies”
recommended that he keep heat on it for three days and
scheduled him for a follow-up with the surgeon for mid-May.
As of November of 2016, Plaintiff had not received a
follow-up. Although Plaintiff believes his finger is healed,
he does not feel that it has healed properly because it still
hurts constantly and it is hard to use it at times due to the
pain. Plaintiff filed a grievance alleging that he did not
receive follow-up x-rays on May 18, 2015. Plaintiff attaches
the grievance response to his complaint. The response states
that because Plaintiff was sent to the ER at WNMH on May 16,
2015, his x-ray scheduled for May 18, 2015, was cancelled and
the APRN did a follow-up x-ray on May 27, 2015-earlier than
normal-due to Plaintiff's concerns. (Doc. 1-1.)
seeks nominal damages, punitive damages, a declaratory
judgment and a permanent injunction.
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
U.S. 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).