United States District Court, D. Kansas
MAURICE L. MILES, JR., Plaintiff,
BASEER A. SAYEED, et al., Defendants.
MEMORANDUM AND ORDER
CROW, U.S. SENIOR DISTRICT JUDGE
brings this pro se civil rights action pursuant to
42 U.S.C. § 1983. Although Plaintiff is currently housed
at the Larned Correctional Mental Health Facility in Larned,
Kansas, the events giving rise to his Complaint occurred
during his incarceration at the Winfield Correctional
Facility (“WCF”). The Court entered a Memorandum
and Order and Order to Show Cause (Doc. 5)
(“MOSC”) directing Plaintiff to show good cause
why his Complaint should not be dismissed and giving
Plaintiff the opportunity to file an amended complaint.
Plaintiff has filed an Amended Complaint (Doc. 10). The Court
finds that Plaintiff's Amended Complaint does not cure
the deficiencies set forth in the MOSC.
Nature of the Matter before the Court
alleges that he hurt himself by pinching his sciatic nerve
while rebuilding the fish pond as part of his work detail on
September 2, 2017. Plaintiff alleges that he was lifting 35
to 40-pound rocks when he twisted and tossed the rocks,
hurting his back. After several days, Plaintiff was seen by
Dr. Sayeed, and he learned that he had a pinched sciatic
nerve. Dr. Sayeed told Plaintiff that he was fine and that it
would heal soon. Dr. Sayeed did not schedule Plaintiff to see
a “professional.” Plaintiff asked to be seen by a
different doctor, but he was again seen by Dr. Sayeed on
September 9, September 25, and October 31, 2017. Plaintiff
alleges that Dr. Sayeed was rude and told Plaintiff that
Plaintiff was wasting his time and tax payers' money.
During Plaintiff's last few visits with Dr. Sayeed,
Plaintiff was placed on the examining table where Dr. Sayeed
would do small body movement tests to check Plaintiff's
movements and capabilities. Plaintiff alleges that Dr. Sayeed
made Plaintiff's back worse and “jerked him
around” and twisted his body into positions that were
hurtful. Plaintiff informed Dr. Sayeed that he was hurting
Plaintiff and needed to stop, but he continued. Dr. Sayeed
responded that he was a doctor and knew what he was doing and
that it was part of the procedure. Plaintiff was promised an
MRI and an x-ray, but only received the x-ray. The x-ray
showed a “straightening of the normal lumbar.”
Plaintiff has been in constant pain and has been given
Ibuprofen and Tylenol. Plaintiff filed grievances regarding
his medical care, but Warden Conover either responded showing
“no concern” or failed to respond.
claims “medical maltreatment” and deliberate
indifference in violation of the 8th and 14th Amendments.
Plaintiff names as defendants: Baseer A. Sayeed, MD; Corizon
Health Services; and Emmalee Conover, Warden at WCF.
Plaintiff seeks nominal damages, compensatory damages, and
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 ‘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).
Eighth Amendment - Denial of Medical Care
Eighth Amendment guarantees a prisoner the right to be free
from cruel and unusual punishment. “[D]eliberate
indifference to serious medical needs of prisoners
constitutes the ‘unnecessary and wanton infliction of
pain' . . . proscribed by the Eighth ...