United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
CROW SENIOR U.S. DISTRICT JUDGE
Irineo Garcia is hereby required to show good cause, in
writing, to the Honorable Sam A. Crow, United States District
Judge, why this action should not be dismissed due to the
deficiencies in Plaintiff's Complaint that are discussed
Nature of the Matter before the Court
a state prisoner appearing pro se and in forma pauperis,
filed this civil rights complaint pursuant to 42 U.S.C.
§ 1983. Plaintiff is incarcerated at the Hutchinson
Correctional Facility in Hutchinson, Kansas
alleges that he is an amputee and Defendants were
deliberately indifferent when they provided him with access
to a handicap shower (with a shower seat), but not an
“ADA certified shower” (with a shower chair).
(Doc. 1, at 2, 18.) He alleges that he was allowed to shower
in an area designed for people with limited mobility, but not
for amputees. Id. at 5. Plaintiff alleges he slipped
off the shower seat and tore his ACL. Plaintiff had surgery
on his knee, and the surgeon recommended Percocet for pain
management. The medical staff at HCF refused to give
Plaintiff Percocet and instead provided him with Tylenol 3.
Id. at 18-19.
alleges that he did not receive proper responses to his filed
grievances, and that he was retaliated against by Defendants
for filing grievances. Plaintiff alleges that he received
disciplinary infractions and was housed in a higher custody
setting as forms of retaliation.
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).
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 Amendment.”
Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation
“deliberate indifference” standard includes both
an objective and a subjective component. Martinez v.
Garden, 430 F.3d 1302, 1304 (10th Cir. 2005) (citation
omitted). In the objective analysis, the deprivation must be
“sufficiently serious, ” and the inmate must show
the presence of a “serious medical need, ” that
is “a serious illness or injury.”
Estelle, 429 U.S. at 104, 105; Farmer v.
Brennan, 511 U.S. 825, 834 (1994), Martinez,
430 F.3d at 1304 (citation omitted). A serious medical need
includes “one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay