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Guebara v. Bascue

United States District Court, D. Kansas

July 31, 2019

PAUL GUEBARA, Plaintiff,
KEVEN BASCUE, et al., Defendants.


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

         Plaintiff 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.

         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 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 pauperis.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         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 ‘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.

         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).


         1. First Amendment Violations

         Plaintiff 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).

         Plaintiff acknowledges that his Bible was returned to him and he is no longer detained at the FCJ. Therefore, any ...

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