Opinion
22-3024-SAC
02-11-2022
EDRICK LADON MCCARTY, Plaintiff, v. CENTURION, et al.,, Defendants.
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
SAM A. CROW U.S. SENIOR DISTRICT JUDGE
Plaintiff Edrick Ladon McCarty 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 herein. Plaintiff is also given an opportunity to file a proper amended complaint to cure the deficiencies.
I. Nature of the Matter before the Court
Plaintiff brings this pro se action under 42 U.S.C. § 1983. The Court granted Plaintiff leave to proceed in forma pauperis. Plaintiff is incarcerated at the El Dorado Correctional Facility in El Dorado, Kansas (“EDCF”).
Plaintiff alleges in his Complaint that around June 7, 2021, he began suffering from auditory and visual hallucinations that “produced multiple acts, ” and Centurion failed to forcibly medicate him for six months to prevent him from experiencing hallucinations. (Doc. 1, at 1-2.) Plaintiff alleges that during that time, he was placed in segregation and while being escorted by officers Rose and Grimmett he was body slammed and “bear maced” while “trying to go home.” Id. Plaintiff alleges that Centurion's Nurse Gomez witnessed the encounter which caused Plaintiff neck pain. Id. at 2. Plaintiff alleges that he was allowed to rinse off the bear mace, but he still experienced discomfort. Id. at 3. Plaintiff alleges that he suffered a contusion to the head and dry eyes. Id.
Plaintiff also alleges that “a guy” who had both legs amputated was not given a wheelchair. Id. at 5. Plaintiff alleges that this constituted a failure to act. Id.
Plaintiff names as defendants: Centurion, LLC; Correctional Officer Kurtis Grimmett; and Stacy Rose. Plaintiff seeks $320,000 in compensatory damages for “pain and suffering.” Id. at 6.
II. Statutory Screening of Prisoner Complaints
The 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. § 1915A(b)(1)-(2).
“To 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).
A pro 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.
The 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).
The 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).
III. DISCUSSION
1. Medical Care
Plaintiff alleges that Centurion denied him proper forced medication for six months. The 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 omitted).
The “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 person would easily recognize the necessity for a doctor's attention.” Martinez, 430 F.3d at 1304 (quoting Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000)).
“The subjective component is met if a prison official knows of and disregards an excessive risk to inmate health or safety.” Id. (quoting Sealock, 218 F.3d at 1209). In measuring a prison official's state of mind, “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 1305 (quoting Riddle v. Mondragon, 83 F.3d 1197, 1204 (10th Cir. 1996)).
A mere difference of opinion between the inmate and prison medical personnel regarding diagnosis or reasonable treatment does not constitute cruel and unusual punishment. See Estelle, 429 U.S. at 106-07; see also Coppinger v. Townsend, 398 F.2d 392, 394 (10th Cir. 1968) (prisoner's right is to medical care-not to type or scope of medical care he desires and difference of opinion between a physician and a patient does not give rise to a constitutional right or sustain a claim under § 1983).
Plaintiff's allegations do not show a complete lack of medical care, but rather show Plaintiff's disagreement regarding the proper course of treatment or medication. A complaint alleging that plaintiff was not given plaintiff's desired medication, but was instead given other medications, “amounts to merely a disagreement with [the doctor's] medical judgment concerning the most appropriate treatment.” Gee v. Pacheco, 627 F.3d 1178, 1192 (10th Cir. 2010) (noting that plaintiff's allegations indicate not a lack of medical treatment, but a disagreement with the doctor's medical judgment in treating a condition with a certain medication rather than others); Hood v. Prisoner Health Servs., Inc., 180 Fed.Appx. 21, 25 (10th Cir. 2006) (unpublished) (where appropriate non-narcotic medication was offered as an alternative to the narcotic medication prescribed prior to plaintiff's incarceration, a constitutional violation was not established even though plaintiff disagreed with the treatment decisions made by prison staff); Carter v. Troutt, 175 Fed.Appx. 950 (10th Cir. 2006) (unpublished) (finding no Eighth Amendment violation by prison doctor who refused to prescribe a certain pain medication where he prescribed other medications for the inmate who missed follow-up appointment for treatment and refused to be examined unless he was prescribed the pain medication he wanted); Ledoux v. Davies, 961 F.2d 1536, 1537 (10th Cir. 1992) (“Plaintiff's belief that he needed additional medication, other than that prescribed by the treating physician, as well as his contention that he was denied treatment by a specialist is . . . insufficient to establish a constitutional violation.”). Plaintiff has failed to show that any defendant was deliberately indifferent regarding his medication and his medical claims are subject to dismissal. Plaintiffs claims suggest, at most, negligence, and are subject to dismissal.
Delay in providing medical care does not violate the Eighth Amendment, unless there has been deliberate indifference resulting in substantial harm. Olson v. Stotts, 9 F.3d 1475 (10th Cir. 1993). In situations where treatment was delayed rather than denied altogether, the Tenth Circuit requires a showing that the inmate suffered “substantial harm” as a result of the delay. Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000) (citation omitted). “The substantial harm requirement ‘may be satisfied by lifelong handicap, permanent loss, or considerable pain.'” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quoting Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001)).
Plaintiff has failed to allege how any defendant personally participated in the deprivation of his constitutional rights regarding his medication. An essential element of a civil rights claim against an individual is that person's direct personal participation in the acts or inactions upon which the complaint is based. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011) (“But § 1983 imposes liability for a defendant's own actions-personal participation in the specific constitutional violation complained of is essential”) (citing Foote v. Spiegel, 118 F.3d 1416, 1423-24 (10th Cir. 1997) (“Individual liability under § 1983 must be based on personal involvement in the alleged constitutional violation”) (citation omitted)); Trujillo v. Williams, 465 F.3d 1210, 1228 (10th Cir. 2006) (“In order for liability to arise under § 1983, a defendant's direct personal responsibility for the claimed deprivation . . . must be established.”) (emphasis added) (citation omitted)). Conclusory allegations of involvement are not sufficient. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”). As a result, a plaintiff is required to name each defendant not only in the caption of the complaint, but again in the body of the complaint and to include in the body a description of the acts taken by each defendant that violated plaintiff's federal constitutional rights.
Plaintiff names Centurion as the only health care provider. In the Tenth Circuit, “to hold a corporation liable under § 1983 for employee misconduct, a plaintiff must demonstrate the existence of the same sort of custom or policy that permits imposition of liability against municipalities under Monell v. Department of Social Services, 436 U.S. 658, 694 . . . (1978).” Wishneski v. Andrade, 572 Fed.Appx. 563, 567 (10th Cir. 2014) (unpublished) (citations omitted). A corporation may not be held liable based upon respondeat superior because “vicarious liability is inapplicable to . . . § 1983 suits.” Rascón v. Douglas, 718 Fed.Appx. 587, 589-90 (10th Cir. 2017) (unpublished) (quoting Iqbal, 556 U.S. at 676); see also Spurlock v. Townes, 661 Fed.Appx. 536, 545 (10th Cir. 2016) (unpublished); Green v. Denning, 465 Fed.Appx. 804, 806 (10th Cir. 2012) (unpublished) (“An entity ‘cannot be held liable solely because it employs a tortfeasor-or, in other words, [it] cannot be held liable under § 1983 on a respondeat superior theory.'”) (citation omitted); Williams v. Correct Care Sols., No. 19-3075-SAC, 2019 WL 2005920, at *2 (D. Kan. May 7, 2019); Jefferson v. Aramark Corr. Servs., Case No. 17-3161-SAC, 2017 WL 6557419, at *2 (D. Kan. Dec. 22, 2017); Livingston v. Correct Care Sols., Case No. 07-3256-SAC, 2008 WL 1808340, at *1-2 (D. Kan. Apr. 17, 2008) (stating that “[a] policy is a formal statement by the private corporation” and “[a] custom is a persistent, well-settled practice of unconstitutional misconduct by employees that is known and approved by the corporation.”).
This action is subject to dismissal as against Defendant Centurion. Plaintiff must allege facts showing a policy or a custom of Centurion that caused his injury. Plaintiff has failed to allege such facts. Therefore, Plaintiff is directed to show good cause why his claim against Defendant Centurion should not be dismissed. The Court will grant Plaintiff an opportunity to file an amended complaint to name the proper defendants and to show personal participation by each defendant.
2. Excessive Force
Plaintiff fails to state a claim of excessive force under the Eighth Amendment's Cruel and Unusual Punishments Clause. See Estate of Booker v. Gomez, 745 F.3d 405, 419 (10th Cir. 2014) (stating that “claims of excessive force involving convicted prisoners arise under the Eighth Amendment”). The Eighth Amendment's prohibition against “cruel and unusual punishments” applies to the treatment of inmates by prison officials. See Whitley v. Albers, 475 U.S. 312, 319-21 (1986). Prison officials violate inmates' Eighth Amendment rights when they subject them to the “unnecessary and wanton infliction of pain.” Id. at 319. “[W]henever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (citation omitted). “The Eighth Amendment's prohibition of ‘cruel and unusual' punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort ‘repugnant to the conscience of mankind.'” Id. at 9-10.
Plaintiff must prove both an objective component and subjective component to succeed on an excessive force claim. Smith v. Cochran, 339 F.3d 1205, 1212 (10th Cir. 2003). To establish the objective component, Plaintiff must show that “the alleged wrongdoing was objectively harmful enough to establish a constitutional violation.” Id. Not every isolated battery or injury to an inmate amounts to a federal constitutional violation. See Hudson, 503 U.S. at 9 (stating that not “every malevolent touch by a prison guard gives rise to a federal cause of action.”) (citing Johnson v. Glick, 481 F.2d 1028, 1033 (2nd Cir. 1973) (“Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights”)).
Plaintiff has not alleged wrongdoing that is objectively harmful enough to establish a constitutional violation. In Snyder v. Spilde, the court found that:
Merely grabbing and twisting Mr. Snyder's arms does not allege a constitutional violation. See e.g., Norton v. The City of Marietta, 432 F.3d 1145, 1156 (10th Cir. 2005) (dismissing claim in which prison guards were alleged to have injured prisoner by grabbing him around his neck and twisting it because the guards' actions were not objectively harmful enough to establish a constitutional violation); Reed v. Smith, No. 97-6341, 1999 WL 345492, at *4 (10th Cir. 1999) (dismissing excessive force claim based on allegations that prison officials grabbed inmate, tried to ram him into a wall, and dragged him while walking him through the prison); Marshall, 415 Fed. App'x at 853-54 (dismissing excessive force claim based on allegations that corrections officer dug his fingernails into prisoner's arm without cause to do so resulting in redness and bruising). Accord De Walt v. Carter, 224 F.3d 607, 610-11 (7th Cir. 2000) (holding that shoving a prisoner into a doorframe, which resulted in bruising on his back, did not state a constitutional violation); Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997) (holding that bumping, grabbing, elbowing, and pushing a prisoner was “not sufficiently serious or harmful to reach constitutional dimensions.”); Black Spotted Horse v. Else, 767 F.2d 516, 517 (8th Cir. 1985) (pushing cubicle-cell wall onto prisoner's leg, causing bruises, was insufficient use of force to state a constitutional violation); Olson v. Coleman, 804 F.Supp. 148, 149-50 (D. Kan. 1982) (single blow to prisoner's head while
escorting him into prison, causing contusion, was de minimis use of force not repugnant to conscience of mankind).Snyder v. Spilde, No. 15-cv-2169-GPG, 2016 WL 1059612, at *3-4 (D. Colo. March 17, 2016).
To establish the subjective component, Plaintiff must show that Defendants “act[ed] with a sufficiently culpable state of mind.” Cochran, 339 F.3d at 1212 (citation omitted). Plaintiff alleges that the incident occurred when he was hallucinating while being escorted and believed he was going home. Plaintiff's Complaint does not allege specific facts indicating that the defendant officials engaged in the “wanton and unnecessary” infliction of pain that constitutes a violation of the Eighth Amendment. See Reed, 1999 WL 345492, at *4. Plaintiff's excessive force claim is subject to dismissal.
3. Claims Regarding Other Inmates
Plaintiff alleges that “a guy” with amputated legs was not given a wheelchair. It is well-settled that a § 1983 claim must be based on the violation of Plaintiff's personal rights and not the rights of someone else. Archuleta v. McShan, 897 F.2d 495, 497 (10th Cir. 1990) (citations omitted). To the extent Plaintiff raises claims on behalf of others, a review of the allegations contained in his Complaint indicates he lacks standing to do so. To have standing, a prisoner must state “specific facts connecting the allegedly unconstitutional conditions with his own experiences [in the prison], or indicat[e] how the conditions caused him injury.” Swoboda v. Dubach, 992 F.2d 286, 289 (10th Cir. 1993). Any claim based on the failure to give another inmate a wheelchair is subject to dismissal.
4. Damages
A request for compensatory damages is barred by 42 U.S.C. § 1997e(e), unless a plaintiff alleges a physical injury. Section 1997e(e) provides in pertinent part that “[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e).
IV. Motion to Appoint Counsel
Plaintiff has filed a Motion for Appointment of Counsel (Doc. 3), stating that he wants to appear in court. The Court has considered Plaintiff's motion for appointment of counsel. There is no constitutional right to appointment of counsel in a civil case. Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989); Carper v. DeLand, 54 F.3d 613, 616 (10th Cir. 1995). The decision whether to appoint counsel in a civil matter lies in the discretion of the district court. Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991). “The burden is on the applicant to convince the court that there is sufficient merit to his claim to warrant the appointment of counsel.” Steffey v. Orman, 461 F.3d 1218, 1223 (10th Cir. 2006) (quoting Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004)). It is not enough “that having counsel appointed would have assisted [the prisoner] in presenting his strongest possible case, [as] the same could be said in any case.” Steffey, 461 F.3d at 1223 (quoting Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)).
In deciding whether to appoint counsel, courts must evaluate “the merits of a prisoner's claims, the nature and complexity of the factual and legal issues, and the prisoner's ability to investigate the facts and present his claims.” Hill, 393 F.3d at 1115 (citing Rucks, 57 F.3d at 979). The Court concludes in this case that (1) it is not clear at this juncture that Plaintiff has asserted a colorable claim against a named defendant; (2) the issues are not complex; and (3) Plaintiff appears capable of adequately presenting facts and arguments. The Court denies the motion without prejudice to refiling the motion if Plaintiff's Complaint survives screening.
V. Response and/or Amended Complaint Required
Plaintiff is required to show good cause why his Complaint should not be dismissed for the reasons stated herein. Plaintiff is also given the opportunity to file a complete and proper amended complaint upon court-approved forms that cures all the deficiencies discussed herein.Plaintiff is given time to file a complete and proper amended complaint in which he (1) raises only properly joined claims and defendants; (2) alleges sufficient facts to state a claim for a federal constitutional violation and show a cause of action in federal court; and (3) alleges sufficient facts to show personal participation by each named defendant.
To add claims, significant factual allegations, or change defendants, a plaintiff must submit a complete amended complaint. See Fed. R. Civ. P. 15. An amended complaint is not simply an addendum to the original complaint, and instead completely supersedes it. Therefore, any claims or allegations not included in the amended complaint are no longer before the court. It follows that a plaintiff may not simply refer to an earlier pleading, and the amended complaint must contain all allegations and claims that a plaintiff intends to pursue in the action, including those to be retained from the original complaint. Plaintiff must write the number of this case (22-3024-SAC) at the top of the first page of his amended complaint and he must name every defendant in the caption of the amended complaint. See Fed. R. Civ. P. 10(a). Plaintiff should also refer to each defendant again in the body of the amended complaint, where he must allege facts describing the unconstitutional acts taken by each defendant including dates, locations, and circumstances. Plaintiff must allege sufficient additional facts to show a federal constitutional violation.
If Plaintiff does not file an amended complaint within the prescribed time that cures all the deficiencies discussed herein, this matter will be decided based upon the current deficient Complaint and may be dismissed without further notice for failure to state a claim.
IT IS THEREFORE ORDERED THAT Plaintiff's Motion for Appointment of Counsel (Doc. 3) is denied without prejudice.
IT IS FURTHER ORDERED that Plaintiff is granted until March 7, 2022, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why Plaintiff's Complaint should not be dismissed for the reasons stated herein.
IT IS FURTHER ORDERED that Plaintiff is also granted until March 7, 2022, in which to file a complete and proper amended complaint to cure all the deficiencies discussed herein.
The clerk is directed to send § 1983 forms and instructions to Plaintiff.
IT IS SO ORDERED.