McDiffett (ID 51141) v. Fromm et al
MEMORANDUM AND ORDER ENTERED: This action is dismissed for failure to state a claim. Signed by U.S. Senior District Judge Sam A. Crow on 01/09/18. Mailed to pro se party Shawn W. McDiffett by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SHAWN W. McDIFFETT,
DARRELL FROMM, et al.,
CASE NO. 17-3053-SAC
MEMORANDUM AND ORDER
Plaintiff bring this pro se civil rights action pursuant to 42 U.S.C. § 1983. The Court
granted Plaintiff leave to proceed in forma pauperis. Although Plaintiff is currently incarcerated
at the Hutchinson Correctional Facility in Hutchinson, Kansas (“HCF”), the events giving rise to
his Complaint took place during his incarceration at the El Dorado Correctional Facility in El
Dorado, Kansas (“EDCF”). Plaintiff alleges that all facility departments, including Corizon,
Aramark and EDCF Administrative Staff, were put on notice and demonstrated deliberate
indifference to his serious medical needs in violation of the Eighth Amendment.
On August 25, 2017, the Court entered an Order (Doc. 6) finding that the proper
processing of Plaintiff’s claims could not be achieved without additional information from
appropriate EDCF officials. See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978); see also Hall
v. Bellmon, 935 F.2d 1106 (10th Cir. 1991). The Court ordered the officials responsible for the
operation of EDCF to conduct a review and submit a written Martinez report.
On December 5, 2017, the Court entered a Memorandum Order and Order to Show Cause
(“MOSC”) (Doc. 19), giving Plaintiff until January 5, 2018, to either show cause why his case
should not be dismissed for the reasons set forth in the MOSC or to file a proper amended
complaint. In the MOSC, the Court found that: Plaintiff’s allegation that he suffered a slight
allergic reaction on one occasion fails to allege that he is “incarcerated under conditions posing a
substantial risk of serious harm”; Plaintiff fails to allege “deliberate indifference” by any
defendant; Plaintiff alleges no facts showing that any particular defendant both knew of and
disregarded an excessive risk to his health or safety; Plaintiff’s claims at best suggest negligence;
and Plaintiff’s claims are subject to dismissal for failure to state a claim of cruel and unusual
The Court’s MOSC required Plaintiff to show good cause why his Complaint should not
be dismissed for the reasons stated therein. Plaintiff was also given the opportunity to file a
complete and proper Amended Complaint upon court-approved forms that cures all the
deficiencies discussed therein. The MOSC provides that “[i]f 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.” Plaintiff has failed to address the
deficiencies and has failed to file an amended complaint. The Court finds that this case should
be dismissed due to the deficiencies set forth in the MOSC.
IT IS THEREFORE ORDERED BY THE COURT that this action is dismissed for
failure to state a claim.
IT IS SO ORDERED.
Dated in Topeka, Kansas, on this 9th day of January, 2018.
S/ Sam A. Crow
Sam A. Crow
U.S. Senior District Judge
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