United States District Court, D. Kansas
MEMORANDUM AND ORDER TO SHOW CAUSE
CROW U.S. SENIOR DISTRICT JUDGE.
Daniel Caballero, a prisoner at the El Dorado Correctional
Facility - Oswego in Oswego, Kansas, brings this pro
se civil rights action pursuant to 42 U.S.C. §
1983. Plaintiff proceeds in forma pauperis. For the
reasons discussed below, Plaintiff is ordered to show cause
why his complaint should not be dismissed.
Nature of the Matter before the Court
complaint (ECF No. 1) alleges he failed to receive
appropriate medical care when he was detained at the
Wyandotte County Jail. Plaintiff received a cut on his finger
in February of 2015. A nurse in the jail clinic bandaged the
finger, but Plaintiff alleges he did not receive follow-up
care. The finger became infected and had to be amputated on
March 5, 2015.
names as defendants the Wyandotte County Sheriff's
Department-Jail Clinic, Correct Care Solutions, and Corizon
Health, Inc. He claims violation of his rights under the
Fourth, Fifth, Eighth, and Fourteenth Amendments, and seeks
compensatory 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
employee of such entity to determine whether summary
dismissal is appropriate. 28 U.S.C. § 1915A(a).
Additionally, with any litigant, such as Plaintiff, who is
proceeding in forma pauperis, the Court has a duty to screen
the complaint to determine its sufficiency. See 28
U.S.C. § 1915(e)(2). Upon completion of this screening,
the Court must dismiss any claim that is frivolous or
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. 28 U.S.C. §§ 1915A(b),
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).
complaint is subject to dismissal because it is untimely. The
statute of limitations for § 1983
claims “is drawn from the personal-injury statute of
the state in which the federal district court sits.”
Mondragon v. Thompson, 519 F.3d 1078, 1082
(10th Cir. 2008). The Court therefore applies
Kansas's two-year statute of limitations for personal
injury actions. See Kan. Stat. Ann. §
60-513(a)(4); Brown v. Unified School Dist. 501, Topeka
Public Schools, 465 F.3d 1184, 1188 (10th
Cir. 2006) (citations omitted).
state law governs the length of the limitations period and
tolling issues, “the accrual date of a § 1983
cause of action is a question of federal law.”
Wallace v. Kato, 549 U.S. 384, 388 (2007). Under
federal law, the claim accrues “when the plaintiff has
a complete and present cause of action.” Id.
at 388 (internal quotation marks and citation omitted). In
other words, “[a] § 1983 action accrues when facts
that would support a cause of action are or should be
apparent.” Fogle v. Pierson, 435 F.3d 1252,
1258 (10th Cir. 2006) (internal quotation marks
and citation omitted). “Since the injury in a
§ 1983 case is the violation of a
constitutional right, such claims accrue when the plaintiff
knows or ...