United States District Court, D. Kansas
ROGER O. SMITH, Plaintiff,
AIR-MARK, et al., Defendants.
NOTICE AND ORDER TO SHOW CAUSE
CROW, U.S. SENIOR DISTRICT JUDGE
matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff, a prisoner in state custody, proceeds
pro se, and the Court grants leave to proceed in forma
of the Complaint
sues two supervisors employed by Aramark. He states that
upon intake at the El Dorado Correctional Facility in July
2019 he was prescribed an increased protein renal diet. He
claims that since that time he has not been provided with the
appropriate diet and instead was placed on a renal no poultry
the Court to terminate the employment of the two supervisors
and seeks monetary damages.
federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental
entity or an officer or employee of such an entity.
See 28 U.S.C. §1915A(a). Following this review,
the court must dismiss any portion of the complaint that is
frivolous, malicious, fails to state a claim upon which
relief may be granted, or seeks monetary damages from a
defendant who is immune from that relief. See 28
U.S.C. § l9l5A(b).
screening, a court liberally construes pleadings filed by a
party proceeding pro se and applies "less stringent
standards than formal pleadings drafted by lawyers."
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
state a claim for relief under Section 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, 48-49
avoid a dismissal for failure to state a claim, a complaint
must set out factual allegations that "raise a right to
relief above the speculative level." Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007) . The court
accepts the well-pleaded allegations in the complaint as true
and construes them in the light most favorable to the
plaintiff. Id. However, "when the allegations
in a complaint, however, true, could not raise a [plausible]
claim of entitlement to relief," the matter should be
dismissed. Id. at 558. A court need not accept
"[t]hreadbare recitals of the elements of a cause of
action supported by mere conclusory statements."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather,
"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).
Tenth Circuit has observed that the U.S. Supreme Court's
decisions in Twombly and Erickson set out a
new standard of review for dismissals under 28 U.S.C. §
1915(e)(2)(B)(ii) dismissals. See Key v. Bemis, 500
F.3d 1214, 1218 (10th Cir. 2007) (citations omitted) .
Following those decisions, 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 (quotation marks and internal
citations omitted). A plaintiff "must nudge his claims
across the line from conceivable to plausible."
Smith v. United States, 561 F.3d 1090, 1098 (10th
Cir. 2009). In this context, "plausible" 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 [the] claims across the line from conceivable to
plausible." Robbins v. Oklahoma, 519 F.3d 1242,
1247 (citing Twombly at 1974) .
Court construes the complaint to allege the denial of a diet
appropriate for plaintiff's medical needs. The Eighth
Amendment prohibits the infliction of "cruel and unusual
punishments." This provision is interpreted to require
"humane conditions of confinement" and that
"inmates receive adequate food, clothing, shelter, and
medical care, and... [that] reasonable measures [be taken] to
guarantee the safety of the inmates.'" Farmer v.
Brennan, 511 U.S. 825, 832 (1994)(quoting Hudson v.
Palmer, 468 U.S. 517, 526-27 (1984)).
indifference to serious medical needs of prisoners
constitutes the `unnecessary and wanton infliction of
pain' proscribed by the Eighth Amendment."
Estelle v. Gamble,429 U.S. 97, 104-05 (1976). This
standard has both objective and subjective components.