Garcia-Hill (ID 99052) v. Conover 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 04/11/18. Mailed to pro se party Randy Garcia-Hill by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CASE NO. 17-3213-SAC
EMMALEE CONOVER, et al.,
MEMORANDUM AND ORDER
Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is
incarcerated at the Winfield Correctional Facility in Winfield, Kansas. On March 14, 2018, the
Court entered a Memorandum and Order and Order to Show Cause (“MOSC”) (Doc. 7) giving
Plaintiff until April 9, 2018, in which to show cause why Plaintiff’s Complaint (Doc. 1) should
not be dismissed for the reasons set forth in the MOSC. Plaintiff has failed to file a response to
the MOSC within the allowed time.
In the MOSC, the Court found that it plainly appears from the face of the Complaint that
Plaintiff’s claims are subject to dismissal as barred by the applicable two-year statute of
limitations. Plaintiff filed his Complaint on December 4, 2017. Plaintiff’s alleged medical
claims occurred in May 2015. It thus appears that any events or acts of Defendants taken in
connection with Plaintiff’s claims took place more than two years prior to the filing of Plaintiff’s
Complaint and are time-barred. See Fratus v. Deland, 49 F.3d 673, 674-75 (10th Cir. 1995)
(district court may consider affirmative defenses sua sponte when the defense is obvious from
the face of the complaint and no further factual record is required to be developed). Plaintiff has
not alleged facts suggesting that he would be entitled to statutory or equitable tolling.
The Court also found that Plaintiff’s allegations of denial of medical care are subject to
dismissal for failure to state a claim. Plaintiff’s allegations indicate that he has been furnished
medical care during the relevant time frame. They also indicate that his claims amount to a
difference of opinion with the treatments he has been provided by medical staff. Plaintiff’s
allegations are nothing more than a lay person’s disagreement with the medical treatment of his
symptoms by medical professionals. Such allegations do not rise to the level of a claim of cruel
and unusual punishment under the Eighth Amendment; and are, at most, grounds for a
negligence or malpractice claim in state court. Although Plaintiff fails to identify any named
defendant regarding his medical claim, his allegations reflect that he received medical care for
his injuries. Plaintiff has failed to state a claim of deliberate indifference to his medical needs.
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 11th day of April, 2018.
s/ Sam A. Crow
SAM A. CROW
Senior U. S. District Judge
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