Robles-Pantoja v. Campbell et al

Filing 4

ORDER ENTERED: On or before June 7, 2013, plaintiff shall submit an initial partial filing fee of $5.50 to the clerk of the court. Any objection to this order must be filed on or before the date payment is due. The failure to file a timely re sponse may result in the dismissal of this action without prejudice and without additional prior notice to the plaintiff. On or before June 7, 2013, plaintiff shall provide factual allegations explaining the personal perticipation of defendants Vasa and Conner. The failure to provide that factual support may result in the dismissal of those defendants from this action. Plaintiff's motion 3 for the appointment of counsel is denied. Signed by Senior District Judge Sam A. Crow on 5/7/2013. (Mailed to pro se party Javier Robles-Pantoja by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JAVIER ROBLES-PANTOJA,
Plaintiff,
v.

CASE NO. 13-3025-SAC

DAVID CAMPBELL, et al.,
Defendants.

O R D E R

This matter is a Bivens-type civil rights action filed by a
prisoner in federal custody. Plaintiff proceeds pro se and moves to
proceed in forma pauperis.
The motion to proceed in forma pauperis
This motion is governed by 28 U.S.C. § 1915(b). Because plaintiff
is a prisoner, he must pay the full filing fee in installment payments
taken from his prison trust account when he “brings a civil action
or files an appeal in forma pauperis[.]” § 1915(b)(1). Pursuant to
§ 1915(b)(1), the court must assess, and collect when funds exist,
an initial partial filing fee calculated upon the greater of (1) the
average monthly deposit in his account or (2) the average monthly
balance in the account for the six-month period preceding the filing
of the complaint. Thereafter, the plaintiff must make monthly payments
of twenty percent of the preceding month’s income in his institutional
account. § 1915(b)(2). However, a prisoner shall not be prohibited
from bringing a civil action or appeal because he has no means to pay
the initial partial filing fee. § 1915(b)(4).
The court has examined the financial records submitted by the

plaintiff and finds the average monthly deposit is $29.00, and the
average daily balance is $24.55. The court therefore assesses an
initial partial filing fee of $5.50, twenty percent of the average
monthly deposit, rounded to the lower half dollar.
Screening
A 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).
To 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.
Pleadings filed by a pro se litigant must be liberally construed.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, a court need not
accept “[t]hreadbare recitals of the elements of a cause action
supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S.
662, ___, 129 S.Ct. 1937, 1949 (2009).
It appears plaintiff has been in custody at all relevant times.
The complaint states that in May 2010,he went to the prison medical
department seeking attention for stomach pain and rectal bleeding.

While he received treatment, he was not referred to an outside hospital
for approximately 18 months, during which time a mass grew, eventually
requiring the removal of his colon in December 2011. Plaintiff claims
that earlier treatment would have prevented these complications.
Prison officials violate the Eighth Amendment when they are
deliberately indifferent to a prisoner’s serious medical needs.
Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). A delay in
medical care violates the Eighth Amendment when the delay results in
significant harm. Oxedine v. R.G. Kaplan, M.D., 421 F.3d 1272, 1276
(10th Cir. 2001). “Delays that courts have found to violate the Eighth
Amendment have frequently involved life-threatening situations and
instances in which it is apparent that delay would exacerbate the
prisoner’s medical problems.” Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th
Cir. 1999).
The court finds plaintiff’s allegations are sufficient to
require a responsive pleading.
Personal participation by a defendant is an essential allegation
in a Bivens action. See Kite v. Kelley, 546 F.2d 334, 338 (1976).
Because it is unclear what personal participation plaintiff alleges
by defendants Vasa and Conner, private physicians at hospitals outside
the prison, plaintiff must clarify how their acts or omissions
violated his protected rights.
Motion for appointment of counsel
Plaintiff seeks the appointment of counsel. A party in a civil
action does not have a constitutional right to the assistance of
counsel. Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989). However,
the court, in its discretion, may request an attorney to represent
a civil litigant who proceeds in forma pauperis. See 28 U.S.C. §

1915(e)(1). The court must “consider a variety of factors, including
the merits of the litigant’s claims, the nature of the factual issues
raised by the claims, the litigant’s ability to present his claims,
and the complexity of the legal issues raised by the claims.” Williams
v. Meese, 926 F.2d 994, 996 (10th Cir. 1991)(discussing 28 U.S.C. §
1915(d), later redesignated §1915(e)(1)).
The court has examined the complaint and declines to appoint
counsel at the present stage of this matter. The court will reconsider
whether counsel is warranted upon its own motion after additional
development of the record.
IT IS, THEREFORE, BY THE COURT ORDERED that on or before June
7, 2013, plaintiff shall submit an initial partial filing fee of $5.50
to the clerk of the court.1 Any objection to this order must be filed
on or before the date payment is due. The failure to file a timely
response may result in the dismissal of this action without prejudice
and without additional prior notice to the plaintiff.
IT IS FURTHER ORDERED on or before June 7, 2013, plaintiff shall
provide factual allegations explaining the personal participation of
defendants Vasa and Conner. The failure to provide that factual
support may result in the dismissal of those defendants from this
action.
IT IS FURTHER ORDERED plaintiff’s motion for the appointment of
counsel (Doc. 3) is denied.

1

Plaintiff will be required to pay the balance of the $350.00 filing fee in
installments calculated pursuant to 28 U.S.C. § 1915(b)(2).

A copy of this order shall be transmitted to the plaintiff.
IT IS SO ORDERED.
DATED:

This 7th day of May, 2013, at Topeka, Kansas.

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