United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
Crow, U.S. Senior District Judge
Donnie Hill 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. The Court granted Plaintiff leave to
proceed in forma pauperis. Plaintiff is incarcerated
at the Hutchinson Correctional Facility in Hutchinson, Kansas
alleges in his Complaint that Defendants are violating his
Eighth Amendment right to be free from cruel and unusual
punishment. Plaintiff alleges that he entered the Kansas
Department of Corrections (“KDOC”) with a medical
condition that required follow-up surgery and treatment, and
despite numerous attempts Defendants have denied the
necessary surgery and treatment, leaving Plaintiff in extreme
pain and causing additional damage.
alleges that he received a laceration to his left wrist and
right thumb during his arrest in 2016. Plaintiff received
initial treatment and surgery on February 12, 2016.
Subsequent to his arrest and conviction, he was committed to
KDOC custody and upon his arrival began seeing medical and
receiving treatment. KDOC and the medical provider, Corizon,
were transporting Plaintiff to Wichita, Kansas, for treatment
with an off-site health care provider, who determined that in
addition to pain medication, Plaintiff needed additional
surgery and that Plaintiff should receive pre-surgery therapy
by a mental health provider. Plaintiff alleges that
Defendants have ignored the recommendation of the off-site
provider and have denied the recommended surgery, pain
medication and therapy.
alleges that he addressed his concerns to the Warden and
Secretary of Corrections through the administrative grievance
procedure and did not receive any substantial assistance from
either. Plaintiff names as Defendants: Roger Werholtz,
Secretary of KDOC; Dan Schnurr, Warden, HCF; and Lacey Osmon,
Supervisor for Corizon, Kansas Regional Office. Plaintiff
seeks monetary damages, and injunctive and declaratory
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).