Williams v. Jehan

Filing 8

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion 2 for leave to proceed in forma pauperis is granted. Plaintiff is granted to and including August 24, 2012, to show cause why this matter should not be dismissed for failure to state a claim u pon which relief may be granted. The failure to file a timely response may result in the dismissal of this matter without additional prior notice to the plaintiff. Signed by Senior District Judge Sam A. Crow on 7/24/2012. (Mailed to pro se party James Williams by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JAMES WILLIAMS,
Plaintiff,
v.

CASE NO. 12-3137-SAC

DR. (FNU) JEHAN,
Defendant.

MEMORANDUM AND ORDER
This matter is a civil rights action filed pursuant to 42
U.S.C. § 1983 by a prisoner in state custody. Plaintiff proceeds pro
se, and the court grants leave to proceed in forma pauperis.1
Plaintiff claims the defendant prescribed medication that
caused him to lose consciousness occasionally. During one such
episode, plaintiff struck his chin and required stitches. He asserts
a claim under the Eighth Amendment and seeks damages.
Screening
A federal court must conduct a preliminary screening of an

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The court finds plaintiff has insufficient resources to
pay an initial partial filing fee. However, plaintiff is
advised that he remains obligated to pay the statutory
filing fee of $350.00 in this action. The Finance Office of
the facility where he is incarcerated will be directed by a
copy of this order to collect from plaintiff’s account and
pay to the clerk of the court twenty percent (20%) of the
prior month’s income each time the amount in plaintiff’s
account exceeds ten dollars ($10.00) until the filing fee
has been paid in full. Plaintiff is directed to cooperate
fully with his custodian in authorizing disbursements to
satisfy the filing fee, including providing any written
authorization required by the custodian or any future
custodian to disburse funds from his account.

action in which a prisoner seeks relief from a governmental entity
or from an officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). The court must dismiss the complaint, or any part of it,
that the court determines is frivolous or malicious, fails to state
a claim upon which relief may be granted, or seeks monetary damages
against a defendant who is immune from such relief. 28 U.S.C.
§1915A(b).
As noted, plaintiff asserts a claim under the Eighth Amendment.
To state a cognizable claim for relief under the Eighth Amendment
concerning the provision of medical care, “a prisoner must allege
acts

or

omissions

sufficiently

harmful

to

evidence

deliberate

indifference to serious medical needs.” Estelle v. Gamble, 429 U.S.
97, 106 (1976). However, a plaintiff’s claim of “an inadvertent
failure to provide adequate medical care” or “that a physician has
been negligent in diagnosing or treating a medical condition” are
not sufficient to state a valid claim of medical mistreatment under
the Eighth Amendment. Id. at 105-06.
In

this

case,

it

appropriately

construed

malpractice.

Such

appears
as

claims,

a

plaintiff’s

claim

however,

of

claim

negligence

are

not

or

is

most

medical

cognizable

as

constitutional challenges. See Fitzgerald v. Corrections Corp. of
America, 403 F.3d 1134, 1142 (10th Cir. 2005)(a difference of opinion
concerning treatment, even among medical personnel, does not give
rise to an Eighth Amendment claim).
Notice to the plaintiff
For the reasons set forth, the court is considering the summary
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dismissal of this matter for failure to state a claim upon which
relief may be granted. Plaintiff is directed to show cause why such
a dismissal should not be entered in this matter.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motion for
leave to proceed in forma pauperis (Doc. 2) is granted. Collection
action shall commence pursuant to 28 U.S.C. § 1915(b)(2) and shall
continue until plaintiff satisfies the $350.00 filing fee.
IT IS FURTHER ORDERED plaintiff is granted to and including
August 24, 2012, to show cause why this matter should not be
dismissed for failure to state a claim upon which relief may be
granted. The failure to file a timely response may result in the
dismissal of this matter without additional prior notice to the
plaintiff.
Copies of this order shall be transmitted to the plaintiff and
to the Finance Office of the facility where he is incarcerated.
IT IS SO ORDERED.
DATED:

This 24th day of July, 2012, at Topeka, Kansas.

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

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