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Harris v. Palm

United States District Court, D. Kansas

May 29, 2019

DAMIEN MAURICE HARRIS, Plaintiff,
v.
ANDREW PALM, et al., Defendants.

          MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE

          SAM A. CROW U.S. SENIOR DISTRICT JUDGE.

         Plaintiff Damien Maurice Harris 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. Plaintiff is also given the opportunity to file an amended complaint to cure the deficiencies.

         I. Nature of the Matter before the Court

         Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Although Plaintiff is currently incarcerated at the Hutchinson Correctional Facility, the events giving rise to the Complaint (Doc. 5) occurred while Plaintiff was housed at the El Dorado Correctional Facility in El Dorado, Kansas (“EDCF”).

         Plaintiff alleges that his Eighth Amendment rights were violated by Defendant Palm's use of excessive force and deliberate indifference to his medical needs. Plaintiff alleges that on September 15, 2017, he called for an emergency medical call due to shortness of breath and chest pain. Plaintiff alleges that Defendant Palm approached his cell and stated “I don't have to call anything.” When medical staff arrived and directed Palm to remove Plaintiff from his cell to be assessed, Palm stated “if he makes any move, drop him.” Palm then opened Plaintiff's “bean hole” and applied handcuffs on Plaintiff. Plaintiff informed Palm that they were too tight and Palm told Plaintiff to “shut the fuck up.” Plaintiff continued exchanging a “nonconfrontational conversation” with Palm about the handcuffs and Palm told Plaintiff to “shut up.” Palm told Plaintiff to shut up or he would shut him up. Palm then forced Plaintiff against a wall and two or three unidentified guards along with Palm attempted to slam Plaintiff to the ground while Plaintiff resisted. Plaintiff was placed in a “hog-tied” position and leg shackles were placed on Plaintiff. Plaintiff was escorted to the “strip-out cage” and continued to complain about his handcuffs being too tight. Palm told Plaintiff to “deal with it.” After about five minutes, Plaintiff began yelling for staff to assist him and the officer in charge of the B-1 cellhouse came and readjusted Plaintiff's handcuffs and noted that they “aren't double locking.”

         After Plaintiff's cuffs were removed, Plaintiff asked staff to have medical look at his injured wrist. Palm came to Plaintiff's cell door and told Plaintiff to submit a sick call form and stated “you'll be seen within 48 hours.” That night, Plaintiff submitted a sick call dated September 15, 2017, and Plaintiff was seen by medical on September 16, 2017. Plaintiff was referred for an x-ray and given ibuprofen for his pain. Plaintiff alleges he was not seen by a doctor or x-rayed and he submitted sick call requests on November 16, 2017, and December 23, 2017. Plaintiff alleges a delay in medical care and “belie[ves] [he] suffered some kind of injury.” (Doc. 5, at 6.) Plaintiff also alleges that staff were negligent in responding to his grievances.

         Plaintiff names as Defendants: Andrew Palm, CO at EDCF; Corizon Health Services; James Heimgartner, Warden at EDCF; and Daniel Schnurr, Warden at EDCF. Plaintiff seeks compensatory 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. ...


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