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Johnson v. Corizon Health, Inc.

United States District Court, D. Kansas

April 27, 2018

MARION BRUCE JOHNSON, Plaintiff,
v.
CORIZON HEALTH, INC., et al., Defendants.

          MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE

          Sam A. Crow, U.S. Senior District Judge

         Plaintiff Marion Bruce Johnson 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 discussed herein.

         I. Nature of the Matter before the Court

         Plaintiff filed this civil rights action alleging that he was denied proper medical care during his incarceration at the Montgomery County Jail. Plaintiff names as Defendants: Corizon Health, Inc.; Correct Care Solutions; and the Montgomery County Jail Clinic. Plaintiff filed a supplement (Doc. 4) adding the Montgomery Sheriff's Department as a defendant.

         Plaintiff alleges that while he was in the Montgomery County Jail on January 1, 2016, he had kidney stone complications. He went to the clinic in the jail and was given Bactrim for his kidney stones. The Bactrim was a “bad batch” that had been recalled. The Bactrim gave Plaintiff “gigantic boils” that burst and ate at Plaintiff's flesh. The doctor working for Corizon Health Inc./Correct Care Solutions released Plaintiff from jail on January 21, 2016, so that Plaintiff could go to the hospital. Plaintiff was taken by ambulance to the Coffeyville Regional Hospital on January 22, 2016, and subsequently life-flighted to Via Christi-St. Francis, in Wichita, Kansas.[1] While at Via Christi Plaintiff had a “whole trail of flesh-eating bacteria” removed from his body. They also removed a baseball-sized flesh-eating bacteria from behind Plaintiff's right knee. Plaintiff alleges that he almost died and after the surgery, and that he suffered a heart attack on April 29, 2016. Plaintiff alleges that “the defendants” caused physical damage to Plaintiff and gave him a bad batch of Bactrim that they “knew was bad.” Plaintiff alleges that “the defendants” were grossly negligent. Plaintiff claims his leg is permanently damaged and seeks actual and punitive damages.

         II. Statutory Screening of Prisoner Complaints

         The 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. § 1915A(b)(1)-(2).

         “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) (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).

         A pro 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.

         The 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).

         The 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).

         III. DISCUSSION

         1. Exhaustion of Administrative Remedies

         Plaintiff states in his Complaint that he has mailed a “Demand/Settlement Letter” to Corizon Health Care, Correct Care Solutions and ...


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