United States District Court, D. Kansas
NOTICE AND ORDER TO SHOW CAUSE
CROW U.S. SENIOR DISTRICT JUDGE.
matter is a Bivens-type civil rights action filed by
a prisoner in federal custody. Plaintiff proceeds pro se and
in forma pauperis.
of the Complaint
complaint names as defendants the United States of America;
Mark S. Inch, Director of the Federal Bureau of Prisons; the
unnamed Regional Director of the North Central Region of the
Bureau of Prisons; Ian Conners, Administrator of National
Inmate Appeals; Warden Claude Maye of the United States
Penitentiary-Leavenworth (USPL); (FNU) Baker, Unit Manager;
(FNU) Mitts, Counselor at USPL; and (FNU) Krock, Assistant
Health Administrator at USPL.
events in question took place during plaintiff's
incarceration at the United States Penitentiary-Leavenworth.
Plaintiff claims that upon his release in early February 2015
from the Special Housing Unit (SHU) to the lower B-Unit at
USPL, he was transferred to a cell in the B-Upper Unit. He
protested this transfer to defendant Mitts, who advised him
that he was being transferred to less desirable housing for
making wine. Plaintiff argued that he had a medical
restriction that required ground floor housing but to no
then addressed his concerns to defendant Baker, the Unit
Manager. Defendants Baker and Mitts conferred in an office
and contacted an unknown person by telephone. After that,
plaintiff was assigned to the upper level cell.
later spoke to defendant Maye at mainline concerning his
assignment to the upper level and was told that someone from
the medical unit was available to talk to him. Defendant
Krock then met with plaintiff and advised him that she found
nothing in his medical record that required his placement in
lower-level housing and that she had removed the
restrictions. As a result, plaintiff was housed in
upper-level housing which required him to use stairs on a
later point, plaintiff complained of shortness of breath and
chest pain. In April 2015, he was evaluated at an outside
hospital. That evaluation determined that plaintiff had a
heart condition that resulted in shortness of breath,
faintness, and other symptoms upon overexertion. Plaintiff
remained in the upper-level housing assignment until he was
transferred to another institution.
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. § 1915A(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).
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 ...