United States District Court, D. Kansas
MAURICE L. MILES, JR., Plaintiff,
BASEER A. SAYEED, et al., Defendants.
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
CROW U.S. SENIOR DISTRICT JUDGE
Maurice L. Miles, Jr., 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.
Nature of the Matter before the Court
brings this pro se civil rights action pursuant to
42 U.S.C. § 1983. Although Plaintiff is currently housed
at the Larned Correctional Mental Health Facility in Larned,
Kansas, it appears as though the events giving rise to his
Complaint occurred during his incarceration at the Winfield
Correctional Facility (“WCF”).
alleges that he hurt himself by pinching his sciatic nerve
while rebuilding the fish pond as part of his work detail.
Plaintiff alleges that he was lifting 35 to 40-pound rocks
when he twisted and hurt himself. Plaintiff alleges that was
seen by Dr. Sayeed who was very forceful while examining
Plaintiff and forced Plaintiff's back and limbs to twist
and turn more which made the problem worse. Plaintiff
received an x-ray which showed an impression that is
straightening of the normal lumbar. Plaintiff continued to
complain about pain and was told he would have an MRI.
Plaintiff alleges that he did not receive an MRI and his
nerve is still pinched. Plaintiff claims that a year later,
he has an “indention” in his leg where the nerve
has collapsed and he has lost a lot of feeling in his right
foot. Plaintiff alleges that he is still working a job where
he is constantly walking and having to pay for his own
medication. Plaintiff also alleges that on December 1, 2017,
Nurse Kim refused to give him his pain medication and after
meeting with RN Reginna Stroble he was still refused his
alleges medical maltreatment and deliberate indifference.
Plaintiff names as defendants: Baseer A. Sayeed, MD; Corizon
Health Services; Emmalee Conover, Warden at WCF; Reginna
Strobel, RN/Health Services Administrator at WCF; and Kim
(lnu), Nurse at WCF. Plaintiff seeks nominal damages,
compensatory damages, 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).
Eighth Amendment - ...