Mount v. United States of America et al

Filing 5

ORDER ENTERED: This action is dismissed for failure to state a claim. Signed by U.S. Senior District Judge Sam A. Crow on 03/13/18. 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.

ORDER

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. On February 9, 2018, the Court entered a
Memorandum and Order and Order to Show Cause (“MOSC”) (Doc. 3) giving Plaintiff until
March 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. The Court mailed the MOSC to Plaintiff on
February 9, 2018, at her current address of record with the Court. The mail was returned
undeliverable, indicating Plaintiff was no longer at that facility. (Doc. 4.) The Court’s Local
Rules provide that “[e]ach attorney or pro se party must notify the clerk in writing of any change of
address or telephone number. Any notice mailed to the last address of record of an attorney or pro
se party is sufficient notice.” D. Kan. Rule 5.1(c)(3). Plaintiff has failed to provide the Court
with a Notice of Change of Address and failed to file a response to the MOSC within the allowed
time.
The MOSC also gave Plaintiff an opportunity to file an Amended Complaint and provided
that “[i]f Plaintiff does not file an Amended Complaint within the prescribed time that cures all the
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deficiencies discussed herein, this matter will be decided based upon the current deficient
Complaint.” Plaintiff’s Complaint (Doc. 1) is dismissed for failure to state a claim as set forth in
the MOSC. The Court found that 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
claim of cruel and unusual punishment under the Eighth Amendment; and are, at most, grounds for
a negligence or malpractice claim in state court.
IT IS THEREFORE ORDERED THAT this action is dismissed for failure to state a
claim.
IT IS SO ORDERED.
Dated in Topeka, Kansas, on this 13th day of March, 2018.

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

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