Garcia (ID 6002627) v. Shaw et al

Filing 10

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted until February 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 01/31/18. Mailed to pro se party Ray Floyd Garcia, Jr. by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
RAY FLOYD GARCIA, JR.,
Plaintiff,
v.

CASE NO. 17-3181-SAC

SUSAN A. SHAW, et al.,
Defendants.
MEMORANDUM AND ORDER
AND ORDER TO SHOW CAUSE
Plaintiff Ray Floyd Garcia, Jr., is hereby required to show good cause, in writing, to the
Honorable Sam A. Crow, United States District Judge, why this case 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. Although
Plaintiff is currently incarcerated at the Lansing Correctional Facility, the events giving rise to the
Complaint occurred while Plaintiff was housed at the El Dorado Correctional Facility in
El Dorado, Kansas. On November 9, 2017, Plaintiff paid a partial filing fee in the amount of
$5.00. The Court granted Plaintiff an extension of time to December 12, 2017, to submit the
remaining $395.00 of the filing fee. (Doc. 9.) Plaintiff submitted a filing fee in the amount of
$400 on December 7, 2017. The Clerk returned the fee due to the overpayment. Plaintiff should
resubmit the filing fee in the amount $395.
Plaintiff alleges the following in his Complaint. On October 9, 2019, CO Martin and CO
Van Scoter told Plaintiff that RN Shaw was going to give Plaintiff a tetanus shot. Plaintiff told
Nurse Shaw that he wanted it given to him in his hip. Shaw responded that it has to be given in the
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arm. Nurse Shaw grabbed Plaintiff’s arm, yanking him towards her at his door frame, while
Plaintiff was handcuffed behind his back. CO Martin and CO Van Scoter were present and did
not intervene to stop Nurse Shaw. Plaintiff’s arm was bruised and swollen from the shot and from
the pulled muscle from Shaw yanking his arm. Plaintiff alleges that Nurse Shaw used excessive
force in violation of his Eighth Amendment rights when she gave him the tetanus shot in his arm
despite Plaintiff telling her not to give him the shot in his arm because it would cause pain in his
arm. Plaintiff seeks monetary damages.
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

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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
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

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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 fails to state a claim of excessive force under the Eighth Amendment’s Cruel and
Unusual Punishments Clause. See Estate of Booker v. Gomez, 745 F.3d 405, 419 (10th Cir. 2014)
(stating that “claims of excessive force involving convicted prisoners arise under the Eighth
Amendment”). The Eighth Amendment’s prohibition against “cruel and unusual punishments”
applies to the treatment of inmates by prison officials. See Whitley v. Albers, 475 U.S. 312, 319–
21 (1986). Prison officials violate inmates’ Eighth Amendment rights when they subject them to
the “unnecessary and wanton infliction of pain.” Id. at 319. “[W]henever prison officials stand
accused of using excessive physical force in violation of the Cruel and Unusual Punishments
Clause, the core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain
or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503
U.S. 1, 6–7 (1992) (citation omitted). “The Eighth Amendment’s prohibition of ‘cruel and
unusual’ punishments necessarily excludes from constitutional recognition de minimis uses of
physical force, provided that the use of force is not of a sort ‘repugnant to the conscience of
mankind.’” Id. at 9–10.
Plaintiff does not allege that he outright refused a tetanus shot, but rather that he refused to
have it administered in his arm and preferred to have it given to him in his hip. Not every isolated
battery or injury to an inmate amounts to a federal constitutional violation. See id. at 9 (stating
that not “every malevolent touch by a prison guard gives rise to a federal cause of action.”) (citing

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Johnson v. Glick, 481 F.2d 1028, 1033 (2nd Cir. 1973) (“Not every push or shove, even if it may
later seem unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional
rights”)); see also Jones-Bey v. Wright, 944 F. Supp. 723, 733 (N.D. Ind. 1996) (concluding that
“requiring an inmate who has refused to take a test by injection, except under court order, to lay
down and have his arm immobilized during the test does not violate his federally protected rights,
Caldwell v. Miller, 790 F.2d 589, 596 (7th Cir.1986) (requiring courts to accord “wide-ranging
deference” to prison officials “in adopting policies that are needed to preserve internal order and
security.”), and that reasonable force used to immobilize an inmate during such a test is de minimis
within the meaning of Hudson v. McMillian, and does not violate the Eighth Amendment.”).
IV. Response Required
Plaintiff is required to show good cause why his Complaint should not be dismissed for the
reasons stated herein.
IT IS THEREFORE ORDERED THAT that Plaintiff is granted until February 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 31st day of January, 2018.

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

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