United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
Crow, U.S. Senior District Judge
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
Nature of the Matter before the Court
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
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. 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.
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).
Exhaustion of Administrative Remedies
states in his Complaint that he has mailed a
“Demand/Settlement Letter” to Corizon Health
Care, Correct Care Solutions and ...