United States District Court, D. Kansas
MEMORANDUM AND ORDER TO SHOW CAUSE
Crow U.S. Senior District Judge.
Ronald Levon Buchanan brings this pro se civil
rights action pursuant to 42 U.S.C. § 1983. Plaintiff
proceeds in forma pauperis. Mr. Buchanan is a
pretrial detainee at the Johnson County Adult Detention
Center in Olathe, Kansas. 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 defendants recklessly gave him
a medication to which he is allergic. In late August of 2018,
Mr. Buchanan complained of leg pain. Nursing staff employed
by Correct Care Solutions, with approval from Dr. Danny K.
Stanton, administered IBU-600 to Plaintiff three times a day
over the course of seven weeks. Plaintiff alleges he began to
have severe allergic reactions at some point. He made
repeated complaints to medical staff and deputies, both in
person and on the kiosk provided for such purpose. On
September 18, 2018, he was rushed to the medical unit because
he was having difficulty breathing, his face was swollen, and
his vision was blurred. Nurse Molly LNU administered an
allergy shot. Plaintiff saw Dr. Stanton on September 21,
2018, and the doctor questioned why he was taking IBU-600.
After Nurse Molly LNU explained, the doctor continued
Plaintiff on the IBU-600 until October 19, 2018. Plaintiff
continued to suffer painful reactions and was treated at the
emergency room on October 16, 2018; November 26, 2018; and
November 30, 2018.
names as defendants Dr. Stanton, Correct Care Solutions
(CCS), Wellpath, and the Johnson County Sheriff's
Department. He requests relief in the form of $250, 000 in
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). 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). 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).
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).
to state a claim of a constitutional violation
brings three counts in his complaint. All three allege
violation of Kansas statutes. As noted above, in a §
1983 action, the complaint must specify “the violation
of a right secured by the Constitutional and laws of the
United States, and . . . that the deprivation was committed
by a person acting under color of state law.”
Bruner v. Baker, 506 F.3d 1021, 1025-26
(10th Cir. 2007). “[A] violation of state
law alone does not give rise to a federal cause of action
under § 1983.” Malek v. ...