United States District Court, D. Kansas
LORENZO M. JONES, Plaintiff,
ANDREW PARKS, et al., Defendants.
MEMORANDUM AND ORDER
Crow, U.S. Senior District Judge.
a state prisoner appearing pro se and in forma pauperis,
filed this civil rights complaint under 42 U.S.C. §
1983. Although Plaintiff is currently incarcerated at the El
Dorado Correctional Facility (“EDCF”), the claims
giving rise to his Complaint occurred during his
incarceration at the Lansing Correctional Facility in
Lansing, Kansas (“LCF”).
Nature of the Matter before the Court
alleges that he worked as a laundry porter at LCF and
acquired a hernia. He went to the clinic in 2017 and was
given a blood test and a physical by the PA. Plaintiff kept
complaining about his groin pain and after a year and a half
he was taken to Providence in Lansing and was scheduled for
surgery on August 18, 2018. LCF refused the doctor's
orders and transferred Plaintiff to EDCF. Plaintiff
complained to the nurse at sick call at EDCF and she sent him
to the clinic where Nurse Ladwig and Nurse Son sent him to
get a CAT scan. The scan showed that his internal organs were
entangled in his hernia. Plaintiff now has to take medication
to have a bowel movement and to help him urinate.
claims Defendant Parks violated Plaintiff's right to be
free from cruel and unusual punishment in violation of the
Eighth Amendment when he denied the doctor's order to
bring Plaintiff in for surgery on August 18, 2018. Plaintiff
alleges Defendant Howlett's refusal to comply with his
stair restriction constituted “depraved indifference
gross medical negligence.”
alleges that Defendant Parks is the Unit Team Head at the LCF
Clinic and makes the final decisions. Plaintiff alleges that
Defendant Howlett is the Unit Team Manager of C-1 Seg, and
she instructed officers to place Plaintiff on the second tier
despite his stair restriction. Plaintiff alleges that Howlett
stated that she could not enforce the stair restriction
because it was a security issue.
names as Defendants: Andrew Parks, Unit Team Head at LCF;
(fnu) Howlett, Unit Team Manager at LCF; and Corizon.
Plaintiff seeks monetary damages.
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).