Dixon v. Corizon Health et al

Filing 17

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted until May 28, 2018, 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. Signed by U.S. Senior District Judge Sam A. Crow on 05/02/18. Mailed to pro se party Jason Jermaine Dixon by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JASON JERMAINE DIXON,
Plaintiff,
v.

CASE NO. 17-3025-SAC

CORIZON HEALTH, et al.,
Defendants.

MEMORANDUM AND ORDER
AND ORDER TO SHOW CAUSE

Plaintiff Jason Jermaine Dixon 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.
I. Nature of the Matter before the Court
Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff
proceeds in forma pauperis. Plaintiff alleges that he did not receive proper medical care while
detained at the Shawnee County Jail. Plaintiff alleges that on April 9, 2015, he injured his foot
while playing basketball in “unsafe plastic flip-flops provided by the jail.” Plaintiff alleges that
he did not receive proper medical care for his injury and he was injured further when he fell
while hopping on one foot. Plaintiff’s single-count Complaint alleges “malpractice and the right
to proper medical attention.” Plaintiff names as Defendants: Corizon Health; Christie Smith,
Corizon Health Nurse; and Brian Cole, Director of the Shawnee County Jail. Plaintiff seeks
“two million dollars for medical malpractice and pain and suffering.”

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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

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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
Plaintiff previously filed an action on May 13, 2015, against the Shawnee County Jail and
Nurse Christie Smith, based on the same underlying facts. See Dixon v. Shawnee County Jail,

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Case No. 15-3115-SAC-DJW (D. Kan.). The Court granted Defendant Smith’s Motion to
Dismiss and dismissed that case on August 12, 2016. Id. at Doc. 13. The Court’s Order granted
the motion to dismiss for failure to respond and prosecute, and “for the reasons set forth in
Defendant’s motion.” The motion sets forth the medical care Plaintiff received and why he
failed to show deliberate indifference to serious medical needs. In fact, Plaintiff only alleges
malpractice in his Complaint in the instant action. Malpractice is not a basis for an Eighth
Amendment violation. Plaintiff is required to show cause why his Complaint should not be
dismissed as frivolous or malicious. “Repetitious litigation of virtually identical causes of action
may be dismissed under § 1915 as frivolous or malicious.” Winkle v. Hammond, 601 F. App’x
754, 754–55 (10th Cir. 2015) (unpublished) (citing McWilliams v. State of Colo., 121 F.3d 573,
574 (10th Cir. 1997) (internal quotation marks and brackets omitted)).
IV. Response Required
Plaintiff is required to show good cause why his Complaint should not be dismissed for
the reasons stated herein. The failure to file a timely response may result in the dismissal of this
matter without additional prior notice.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is granted until
May 28, 2018, 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 SO ORDERED.
Dated in Topeka, Kansas on this 2nd day of May, 2018.
S/ Sam A. Crow
Sam A. Crow
U.S. Senior District Judge

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