United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
Crow, U.S. Senior District Judge.
Paul Guebara is hereby required to show good cause, in
writing, to the Honorable Sam A. Crow, United States District
Judge, why his claims should not be dismissed due to the
deficiencies in Plaintiff's Complaint that are discussed
herein. Plaintiff is also given an opportunity to file a
proper 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
incarcerated at the El Dorado Correctional Facility in
Oswego, Kansas, the claims giving rise to his Complaint
occurred during his pretrial detention at the Finney County
Jail in Garden City, Kansas (“FCJ”). The Court
granted Plaintiff leave to proceed in forma
alleges in his Complaint that he was placed in a segregation
cell for a disciplinary violation and was released and then
put back in segregation without an explanation or due
process. Plaintiff alleges that the original disciplinary
violation was due to metal pieces being found in his hair
grease, but he was “set up” by another inmate.
Plaintiff alleges that there was a delay in receiving
medication for a stomach illness and that he has been
subjected to defamation, slander and humiliation by being
forced to use the bathroom where he can be seen and is in the
view of the camera, and by being searched more than the other
inmates. Plaintiff alleges that his First Amendment rights
were violated when he was placed in segregation and denied
access to his Bible because his eyeglasses were not permitted
in segregation. Plaintiff alleges that while he was in
segregation his property was stored in a classroom and his
Bible was damaged and items were missing.
alleges that around October of 2016 he was diagnosed with a
stomach bacteria and Hepatitis C. Plaintiff alleges that he
started seeking treatment around September of 2017. Plaintiff
was taken to the Finney County Health Clinic where he was
told that his file contained a denial of treatment for
Hepatitis C and bacteria. Plaintiff supplied them with a
stool sample around October 15, 2017, and was subsequently
told they lost the sample. He supplied them with a second
sample. Plaintiff was told by the nurse that he would get
treatment for Hepatitis C when he got to prison because it
was too expensive for the jail. Plaintiff was taken to a
different clinic-Genesis-on April 30, 2018, and tests were
ordered. Plaintiff finally received treatment for the stomach
bacteria in September of 2018 after a couple of procedures
were done at the hospital. Plaintiff was prescribed three
different medications and two weeks of antibiotics and he has
been pain-free since that time. Plaintiff was still detained
at the FCJ in February of 2019, and still had not received
treatment for Hepatitis C.
claims that his eyeglasses were taken from him on August 17,
2017, and he was not given them back until January 11, 2018,
because he was told he needed to prove they were prescription
glasses. Plaintiff also alleges that deputies are allowed to
dispense medication and he was given the wrong medication on
one occasion and ended up in the hospital for four to five
days. Plaintiff also claims that the grievance procedure at
FCJ is deficient, and deputies rule on grievances without
responses from the Sheriff or Undersheriff.
names as Defendants: Keven Bascue, FCJ Sheriff; John
Anderson, FCJ Undersheriff; Mark Welsh, FCJ Administrator;
Jeff Orebaugh, FCJ Captain; Kyle Lawson, FCJ Lieutenant; and
Michelle Newsome, FCJ Nurse. Plaintiff seeks compensatory and
punitive damages, and injunctive relief.
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 ‘entitle[ment] 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).
First Amendment Violations
alleges that his religious freedom was violated when he was
denied his Bible during segregation. To the extent Plaintiff
seeks monetary damages, he has failed to show a physical
injury. Plaintiff's request for compensatory damages is
barred by 42 U.S.C. § 1997e(e), because Plaintiff has
failed to allege a physical injury. Section 1997e(e) provides
in pertinent part that “[n]o Federal civil action may
be brought by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of physical
injury.” 42 U.S.C. § 1997e(e).
acknowledges that his Bible was returned to him and he is no
longer detained at the FCJ. Therefore, any ...