Hernandez-Chavez v. Corrections Corporation of America et al

Filing 12

ORDER ENTERED: Plaintiff's motion 9 for appointment of counsel is denied. Plaintiff is granted twenty (20) days to show cause why the supplemented complaint should not be dismissed as stating no claim for relief. Signed by Senior District Judge Sam A. Crow on 01/15/09. (smnd)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

GERMAIN HERNANDEZ-CHAVEZ, Plaintiff, v. CORRECTIONS CORPORATION OF AMERICA, et al., Defendants. CASE NO. 07-3198-SAC

ORDER Plaintiff, a prisoner confined in a facility operated by the Corrections Corporation of America ("CCA") in Leavenworth, Kansas, proceeds pro se and in forma pauperis on a supplemented complaint seeking relief pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff has

further supplemented the complaint by filing court approved form complaints for seeking relief under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and under 42 U.S.C. § 1983. Plaintiff's pending motion for appointment of counsel is

denied. Plaintiff has no right to the assistance of counsel in this civil action. Durre v. Dempsey, 869 F.2d 543, 647 (10th Cir. 1989). Having reviewed petitioner's claims, his ability to present said claims notwithstanding his limited fluency in English, and the complexity of the legal issues involved, the court finds the appointment of counsel in this matter is not warranted. See Long v.

Shillinger, 927 F.2d 525, 526-27 (10th Cir. 1991)(factors to be

considered in deciding motion for appointment of counsel). Screening of the Supplemented Complaint Because plaintiff is a prisoner, the court continues its review of the complaint as now supplemented to determine whether it or any portion thereof should be dismissed as frivolous, as failing to state a claim on which relief may be granted, or as seeking seeks monetary relief from a defendant immune from such relief. 28 U.S.C. § 1915A(a) and (b). In this action, plaintiff pursues relief on allegations of deliberate indifference to an obvious medical need, and racial discrimination. Plaintiff states claims CCA staff failed to provide appropriate and timely medical attention for his injured hand, and seeks unspecified injunctive relief and damages for the alleged violation of his rights under the Eighth Amendment. Plaintiff also

seeks damages for discrimination on the basis of race, but presents no clear allegations in support of such a claim. In his original

complaint, plaintiff named the CCA, the CCA Warden, the CCA Security Director, and an unidentified physician and nurse as defendants. In his more recent supplements on court approved forms, the sole defendant identified is CCA. as "unknown." Plaintiff states he injured his hand during an altercation with another inmate on July 12, 2007, and was placed in solitary All other defendants are referred to

confinement for fighting.

Thereafter, plaintiff states he received

no medical treatment, examination, or x-rays for his obvious injury until days later, and claims the ice pack and ace bandage

recommended by the doctor were not provided.

He further states he

was caused great pain and suffering by CCA staff handcuffing him 2

behind his back up to eight times a day without regard to the broken and dislocated bones in his hand. Within a week of his injury,

plaintiff states he was seen by an outside doctor and received an xray and treatment of his broken hand which subsequently healed without complications. Plaintiff seeks injunctive relief and

damages for the alleged deliberate disregard of medical treatment for his obvious injury. Plaintiff also seeks damages for alleged racial discrimination by CCA staff in separating plaintiff from another prisoner who attempted to intercede with the CCA warden on plaintiff's behalf, and to assist plaintiff in filing a lawsuit. In a previous order the court advised plaintiff that a Bivens action does not extend to private entities such as the CCA. See

Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001)(no implied private right of action for damages against private entities engaged in alleged constitutional violations while acting under color of federal law). Nor is CCA a "person acting under color of

state law" for the purpose of stating a claim for relief under 42 U.S.C. § 1983. The court thus dismisses CCA as a defendant because

plaintiff's allegations state no claim for relief against this defendant. Additionally, the court finds plaintiff's allegations are unlikely to state any claim for relief against any additional unnamed defendant in plaintiff's original complaint. A claim of racial discrimination against the CCA Warden, based upon another prisoner being moved away from plaintiff, is frivolous on the face of plaintiff's sparse allegations, and no other

misconduct by the CCA warden is alleged. 3

Nor is any misconduct

alleged as to the remaining defendants. segregation, plaintiff states the CCA

After he was placed in Security Director told

plaintiff he would contact medical staff.

Plaintiff acknowledges

the Security Director did so, and there is no allegation the Security Director prevented more timely medical attention to

plaintiff's injury.

Likewise, the CCA nurse who first examined

plaintiff provided limited pain medication, and the CCA physician who first examined plaintiff ordered an x-ray and ice packs. Plaintiff does not allege that either of these defendants prevented him from receiving the recommended care, and plaintiff does not allege any physical injury resulting from the alleged delay in his treatment. 1996)(delay See White v. Colorado, 82 F.3d 364, 366-67 (10th Cir. in medical treatment does not constitute a

constitutional violation unless it can be shown that the delay resulted in substantial harm). Notice and Show Cause Order to Plaintiff For these reasons, the court directs plaintiff to show cause why the supplemented complaint should not be dismissed as frivolous and as stating no claim for relief.1 any See filing 28 U.S.C. or § any

1915(e)(2)(B)(i)-(ii)("Notwithstanding

fee,

portion thereof, that may have been paid, the court shall dismiss

Plaintiff is advised that dismissal of the complaint under 28 U.S.C. § 1915(e)(2)(B)will count as a "strike" under 28 U.S.C. 1915(g), a "3-strike" provision which prevents a prisoner from proceeding in forma pauperis in bringing a civil action or appeal if "on 3 or more prior occasions, while incarcerated or detained in any facility, [the prisoner] brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." 4

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the case at any time if the court determines ....the action is frivolous or malicious; [or] fails to state a claim on which relief may be granted..."). IT IS THEREFORE ORDERED that plaintiff's motion for appointment of counsel (Doc. 9) is denied. IT IS FURTHER ORDERED that plaintiff is granted twenty (20) days to show cause why the supplemented complaint should not be dismissed as stating no claim for relief. IT IS SO ORDERED. DATED: This 15th day of January 2009 at Topeka, Kansas.

s/ Sam A. Crow SAM A. CROW U.S. Senior District Judge

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