Mount v. United States of America et al

Filing 3

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE ENTERED: Plaintiff's motion for leave to proceed in forma pauperis 2 is granted. The Court assesses an initial partial filing fee of $43.00, calculated under 28 U.S.C. § 1915(b)(1). Pl aintiff shall submit the initial partial filing fee by February 23, 2018. Any objection to this order must be filed on or before the date payment is due. The failure to pay the fee as directed may result in the dismissal of this matter without furt her notice. Plaintiff remains obligated to pay the remainder of the $350.00 filing fee. The clerk is directed to transmit a copy of this order tothe finance office at the institution where Plaintiff is currently confined, and to the Court' s finance office. Plaintiff is granted until March 9, 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. Plaintiff is granted until March 9, 2018, in which to file a complete and proper Amended Complaint to cure all the deficiencies. Signed by U.S. Senior District Judge Sam A. Crow on 02/09/18. Mailed to pro se party Nicole Mount by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

NICOLE MOUNT,
Plaintiff,
v.

CASE NO. 17-3223-SAC

UNITED STATES OF AMERICA, et al.,
Defendants.

MEMORANDUM AND ORDER
AND ORDER TO SHOW CAUSE
Plaintiff Nicole Mount 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 Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff is a federal prisoner
housed at CCA–Leavenworth in Leavenworth, Kansas. The Court grants Plaintiff’s motion for
leave to proceed in forma pauperis (Doc. 2). The Court assesses an initial partial filing fee of
$43.00, calculated under 28 U.S.C. § 1915(b)(1). Plaintiff shall submit the initial partial filing fee
by February 23, 2018. Any objection to this order must be filed on or before the date payment is
due. The failure to pay the fee as directed may result in the dismissal of this matter without
further notice. Plaintiff remains obligated to pay the remainder of the $350.00 filing fee. The
agency having custody of Plaintiff shall forward payments from Plaintiff’s account in installments
calculated under 28 U.S.C. § 1915(b)(2).
Plaintiff alleges that on November 23, 2017, at around 11:15 p.m, she fell while attempting
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to climb to her top bunk at CCA–Leavenworth. Plaintiff alleges that she injured her right arm and
she suffers from bad headaches and blurred vision due to hitting her head. Plaintiff alleges that
she had to wait until 1:30 a.m. that morning to receive medical help. Plaintiff alleges that she has
not received treatment for nerve damage and she did not see medical for nearly a week, after
several sick call requests. Plaintiff seeks monetary and punitive 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
U.S. 544, 558 (2007).
A pro se litigant’s “conclusory allegations without supporting factual averments are

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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
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

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plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S.
Ct. at 1974).
III. DISCUSSION
The Eighth Amendment guarantees a prisoner the right to be free from cruel and unusual
punishment. “[D]eliberate indifference to serious medical needs of prisoners constitutes the
‘unnecessary and wanton infliction of pain’ . . . proscribed by the Eighth Amendment.” Estelle v.
Gamble, 429 U.S. 97, 104 (1976) (citation omitted).
The “deliberate indifference” standard includes both an objective and a subjective
component. Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir. 2005) (citation omitted). In the
objective analysis, the deprivation must be “sufficiently serious,” and the inmate must show the
presence of a “serious medical need,” that is “a serious illness or injury.” Estelle, 429 U.S. at 104,
105; Farmer v. Brennan, 511 U.S. 825, 834 (1994), Martinez, 430 F.3d at 1304 (citation omitted).
A serious medical need includes “one that has been diagnosed by a physician as mandating
treatment or one that is so obvious that even a lay person would easily recognize the necessity for
a doctor’s attention.” Martinez, 430 F.3d at 1304 (quoting Sealock v. Colorado, 218 F.3d 1205,
1209 (10th Cir. 2000)).
“The subjective component is met if a prison official knows of and disregards an
excessive risk to inmate health or safety.” Id. (quoting Sealock, 218 F.3d at 1209). In measuring
a prison official’s state of mind, “the official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”
Id. at 1305 (quoting Riddle v. Mondragon, 83 F.3d 1197, 1204 (10th Cir. 1996)).
A mere difference of opinion between the inmate and prison medical personnel regarding
diagnosis or reasonable treatment does not constitute cruel and unusual punishment. See Estelle,

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429 U.S. at 106–07; see also Coppinger v. Townsend, 398 F.2d 392, 394 (10th Cir. 1968)
(prisoner’s right is to medical care—not to type or scope of medical care he desires and difference
of opinion between a physician and a patient does not give rise to a constitutional right or sustain a
claim under § 1983).
Plaintiff’s allegations do not show a complete lack of medical care, but rather show
Plaintiff’s disagreement regarding the proper course of treatment. Plaintiff’s attachments to her
Complaint show that Plaintiff fell around 11:15 p.m. and did not receive medical attention until
1:30 a.m. due to a medical emergency elsewhere in the facility. (Doc. 1, at 12.) The nurse
attending Plaintiff directed her to apply ice for twenty minutes followed by heat for twenty
minutes. Id. Plaintiff also received an x-ray on November 24. Plaintiff was seen by medical
staff again on December 3, and approved for ibuprofen and for placement on the bottom bunk for
two weeks. Id. at 13. Plaintiff spoke to medical staff again on December 4 and December 6, at
which time she was informed that her x-ray revealed no broken bones. Id. Plaintiff saw a nurse
again on December 8, and saw a doctor on December 11. The doctor informed Plaintiff that she
has nerve damage and that it will probably not go away due to her age. Id. at 14.
A complaint alleging that plaintiff was not given plaintiff’s desired medication, but was
instead given other medications, “amounts to merely a disagreement with [the doctor’s] medical
judgment concerning the most appropriate treatment.” Gee v. Pacheco, 627 F.3d 1178, 1192
(10th Cir. 2010) (noting that plaintiff’s allegations indicate not a lack of medical treatment, but a
disagreement with the doctor’s medical judgment in treating a condition with a certain medication
rather than others); Hood v. Prisoner Health Servs., Inc., 180 F. App’x 21, 25 (10th Cir. 2006)
(unpublished) (where appropriate non-narcotic medication was offered as an alternative to the
narcotic medication prescribed prior to plaintiff’s incarceration, a constitutional violation was not

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established even though plaintiff disagreed with the treatment decisions made by prison staff);
Carter v. Troutt, 175 F. App’x 950 (10th Cir. 2006) (unpublished) (finding no Eighth Amendment
violation by prison doctor who refused to prescribe a certain pain medication where he prescribed
other medications for the inmate who missed follow-up appointment for treatment and refused to
be examined unless he was prescribed the pain medication he wanted); Ledoux v. Davies, 961 F.2d
1536, 1537 (10th Cir. 1992) (“Plaintiff’s belief that he needed additional medication, other than
that prescribed by the treating physician, as well as his contention that he was denied treatment by
a specialist is . . . insufficient to establish a constitutional violation.”).
Delay in providing medical care does not violate the Eighth Amendment, unless there has
been deliberate indifference resulting in substantial harm. Olson v. Stotts, 9 F.3d 1475 (10th Cir.
1993). In situations where treatment was delayed rather than denied altogether, the Tenth Circuit
requires a showing that the inmate suffered “substantial harm” as a result of the delay. Sealock v.
Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000) (citation omitted). “The substantial harm
requirement ‘may be satisfied by lifelong handicap, permanent loss, or considerable pain.’” Mata
v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quoting Garrett v. Stratman, 254 F.3d 946, 950 (10th
Cir. 2001)).
Plaintiff’s allegations of denial of medical care and delay in treatment are subject to
dismissal for failure to state a claim. Plaintiff’s allegations of delay in treatment do not allege
deliberate indifference resulting in substantial harm. Plaintiff’s allegations indicate that she has
been furnished medical care during the relevant time frame. They also indicate that her claims
amount to a difference of opinion with the treatments she has been provided by medical staff.
Plaintiff’s allegations are nothing more than a lay person’s disagreement with the medical
treatment of her symptoms by medical professionals. Such allegations do not rise to the level of a

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claim of cruel and unusual punishment under the Eighth Amendment; and are, at most, grounds for
a negligence or malpractice claim in state court.
VI. Response and/or Amended Complaint Required
Plaintiff is required to show good cause why her Complaint should not be dismissed for the
reasons stated herein. Plaintiff is also given the opportunity to file a complete and proper
Amended Complaint upon court-approved forms that cures all the deficiencies discussed herein.1
Plaintiff is given time to file a complete and proper Amended Complaint in which she (1) shows
she has exhausted administrative remedies for all claims alleged; (2) raises only properly joined
claims and defendants; (3) alleges sufficient facts to state a claim for a federal constitutional
violation and show a cause of action in federal court; and (4) alleges sufficient facts to show
personal participation by each named defendant.
If 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.
IT IS THEREFORE ORDERED THAT Plaintiff’s motion for leave to proceed in forma
pauperis (Doc. 2) is granted.
IT IS FURTHER ORDERED that The Court assesses an initial partial filing fee of
$43.00, calculated under 28 U.S.C. § 1915(b)(1). Plaintiff shall submit the initial partial filing fee

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In order to add claims, significant factual allegations, or change defendants, a plaintiff must submit a complete
amended complaint. See Fed. R. Civ. P. 15. An amended complaint is not simply an addendum to the original
complaint, and instead completely supersedes it. Therefore, any claims or allegations not included in the amended
complaint are no longer before the court. It follows that a plaintiff may not simply refer to an earlier pleading, and the
amended complaint must contain all allegations and claims that a plaintiff intends to pursue in the action, including
those to be retained from the original complaint. Plaintiff must write the number of this case (17-3223-SAC) at the
top of the first page of her Amended Complaint and she must name every defendant in the caption of the Amended
Complaint. See Fed. R. Civ. P. 10(a). Plaintiff should also refer to each defendant again in the body of the
complaint, where she must allege facts describing the unconstitutional acts taken by each defendant including dates,
locations, and circumstances. Plaintiff must allege sufficient additional facts to show a federal constitutional
violation.

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by February 23, 2018. Any objection to this order must be filed on or before the date payment is
due. The failure to pay the fee as directed may result in the dismissal of this matter without
further notice. Plaintiff remains obligated to pay the remainder of the $350.00 filing fee. The
agency having custody of Plaintiff shall forward payments from Plaintiff’s account in installments
calculated under 28 U.S.C. § 1915(b)(2). The clerk is directed to transmit a copy of this order to
the finance office at the institution where Plaintiff is currently confined, and to the Court’s finance
office.
IT IS FURTHER ORDERED that Plaintiff is granted until March 9, 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 FURTHER ORDERED that Plaintiff is also granted until March 9, 2018, in which
to file a complete and proper Amended Complaint to cure all the deficiencies discussed herein.
The clerk is directed to send § 1983 forms and instructions to Plaintiff.
IT IS SO ORDERED.
Dated in Topeka, Kansas, on this 9th day of February, 2018.

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

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