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Smith v. Miller

United States District Court, D. Kansas

May 14, 2019

ROGER ORAL SMITH, Plaintiff,
v.
JULIE MILLER, BROOK HAUBENSTEIN and ADVANCE HEALTH CARE, Defendants.

          ORDER

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

         This case is before the court to screen plaintiff's pro se complaint pursuant to 28 U.S.C. § 1915A.

         I. Pro se standards

         “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A pro se litigant, however, is not relieved from following the same rules of procedure as any other litigant. See Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992), cert. denied, 507 U.S. 940 (1993). A district court should not “assume the role of advocate for the pro se litigant.” Hall, supra. Nor is the court to “supply additional factual allegations to round out a plaintiff's complaint.” Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).

         II. Screening standards

         Title 28 United State Code Section 1915A requires the court to review cases filed by prisoners seeking redress from a governmental entity or employee to determine whether the complaint is frivolous, malicious or fails to state a claim upon which relief may be granted. When deciding whether plaintiff's complaint “fails to state a claim upon which relief may be granted, ” the court must determine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.

Id. A plausibility analysis is a context-specific task depending on a host of considerations, including judicial experience, common sense and the strength of competing explanations for the defendant's conduct. See id. at 679; Twombly, 550 U.S. at 567.

         The court accepts the plaintiff's well-pled factual allegations as true and views them in the light most favorable to the plaintiff. United States v. Smith, 561 F.3d 1090, 1098 (10th Cir. 2009). The court, however, is not required to accept legal conclusions alleged in the complaint as true. Iqbal, 556 U.S. at 678.

         III. The complaint

         Plaintiff has written his complaint on forms for bringing an action under 42 U.S.C. § 1983. He alleges that he is an inmate at the Butler County Jail. Plaintiff asserts that defendant Miller was a nurse who worked at the jail and that defendant Haubenstein currently works at the jail as a nurse. He claims that although he told defendants that he was allergic to penicillin, defendant Miller gave him amoxicillin and augmentin which are in the penicillin family. He alleges that this caused him to break out in hives all over his body.

         Plaintiff further claims that defendant Miller did not follow a surgeon's orders for post-surgery pain and infection medication. Instead, plaintiff was given regular medications “off the cart.” According to the complaint, after he had a second surgery, it was 24 hours before plaintiff received anything for pain and again it was “off the cart, ” not what the doctor ordered. Plaintiff does not allege who was responsible for dispensing medication to him after the second surgery.

         Plaintiff also claims that he broke out in hives whenever he ate beans, but it took almost two and one-half months for him to see a doctor to confirm his allergy. Plaintiff alleges that he still has hives from being given the wrong medication and being given beans for lunch and dinner every day for months. He also complains that he is being served vegetarian plates with beans, when he is not a vegetarian and would like to eat meat.

         IV. The complaint fails to state a claim against ...


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