Staples v. United States of America et al

Filing 5

NOTICE AND ORDER TO SHOW CAUSE ENTERED: On or before January 21, 2020, plaintiff shall show cause why this matter should not be dismissed for failure to state a claim for relief. The failure to file a timely response may result in the dismissal of this matter without additional prior notice. Signed by U.S. Senior District Judge Sam A. Crow on 12/20/19. Mailed to pro se party William Staples by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WILLIAM STAPLES,
Plaintiff,
v.

CASE NO. 18-3094-SAC

UNITED STATES OF AMERICA, et al.,
Defendants.

NOTICE AND ORDER TO SHOW CAUSE
This matter is a Bivens-type 1 civil rights action filed by a
prisoner in federal custody. Plaintiff proceeds pro se and in forma
pauperis.
Nature of the Complaint
The complaint names as defendants the United States of America;
Mark S. Inch, Director of the Federal Bureau of Prisons; the unnamed
Regional Director of the North Central Region of the Bureau of Prisons;
Ian Conners, Administrator of National Inmate Appeals; Warden Claude
Maye of the United States Penitentiary-Leavenworth (USPL); (FNU)
Baker, Unit Manager; (FNU) Mitts, Counselor at USPL; and (FNU) Krock,
Assistant Health Administrator at USPL.
The

events

incarceration

at

in
the

question
United

took
States

place

during

plaintiff’s

Penitentiary-Leavenworth.

Plaintiff claims that upon his release in early February 2015 from
the Special Housing Unit (SHU) to the lower B-Unit at USPL, he was
transferred to a cell in the B-Upper Unit. He protested this transfer
to defendant Mitts, who advised him that he was being transferred to

1Bivens

v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

less desirable housing for making wine. Plaintiff argued that he had
a medical restriction that required ground floor housing but to no
avail.
Plaintiff then addressed his concerns to defendant Baker, the
Unit Manager. Defendants Baker and Mitts conferred in an office and
contacted an unknown person by telephone. After that, plaintiff was
assigned to the upper level cell.
Plaintiff later spoke to defendant Maye at mainline concerning
his assignment to the upper level and was told that someone from the
medical unit was available to talk to him. Defendant Krock then met
with plaintiff and advised him that she found nothing in his medical
record that required his placement in lower-level housing and that
she had removed the restrictions. As a result, plaintiff was housed
in upper-level housing which required him to use stairs on a regular
basis.
At some later point, plaintiff complained of shortness of breath
and chest pain. In April 2015, he was evaluated at an outside hospital.
That evaluation determined that plaintiff had a heart condition that
resulted in shortness of breath, faintness, and other symptoms upon
overexertion.

Plaintiff

remained

in

the

upper-level

housing

assignment until he was transferred to another institution.
Plaintiff seeks damages.
Screening
A federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental entity or an
officer or employee of such an entity. See 28 U.S.C. §1915A(a).
Following this review, the court must dismiss any portion of the
complaint that is frivolous, malicious, fails to state a claim upon

which relief may be granted, or seeks monetary damages from a defendant
who is immune from that relief. See 28 U.S.C. § 1915A(b).
In screening, a court liberally construes pleadings filed by a
party proceeding pro se and applies “less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S.
89, 94 (2007).
To avoid a dismissal for failure to state a claim, a complaint
must set out factual allegations that “raise a right to relief above
the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007). The court accepts the well-pleaded allegations in the
complaint as true and construes them in the light most favorable to
the plaintiff. Id. However, “when the allegations in a complaint,
however true, could not raise a [plausible] claim of entitlement to
relief,” the matter should be dismissed. Id. at 558. A court need not
accept “[t]hreadbare recitals of the elements of a cause of action
supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Rather, “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 Tenth Circuit has observed that the U.S. Supreme Court’s
decisions in Twombly and Erickson set out a new standard of review
for dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii) dismissals. See
Key v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007)(citations omitted).
Following those decisions, 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 (quotation marks and internal
citations omitted). A plaintiff “must nudge his claims across the line
from conceivable to plausible.” Smith v. United States, 561 F.3d 1090,
1098 (10th Cir. 2009). In this context, “plausible” 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

[the]

claims

across

the

line

from

conceivable to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247
(citing Twombly at 1974).
Discussion
The Court has examined the complaint, and, for the reasons that
follow, will direct plaintiff to show cause why this matter should
not be summarily dismissed.
First, a Bivens claim may be brought only against federal
officials in their individual capacities and may not be brought
directly against the United States. Farmer v. Perrill, 275 F.3d 958,
963 (10th Cir. 2001). Therefore, neither the United States nor the
Bureau of Prisons, a federal agency, is a proper party in this Bivens
action.
Next, the complaint presents no specific allegations against
defendants Inch, Conners, and (LNU) Regional Director. If, as it
appears, plaintiff proceeds against these defendants on a theory of
vicarious liability, he fails to state a claim for relief. See Iqbal,
556 U.S. at 675 (“Because vicarious liability is inapplicable to
Bivens and Section 1983 suits, a plaintiff must plead that each
government-official defendant, through the official’s own individual
actions, has violated the Constitution.”). At this point, plaintiff’s
claims against defendants Inch, Conners, and the Regional Director

are insufficient to state a claim for relief, and these defendants
are subject to dismissal.
Third, the complaint’s allegations against defendant Maye, then
the Warden of the USPL, state only that he referred plaintiff to a
member of the medical staff to address his claim that his placement
was inappropriate based upon his physical condition. This allegation
is insufficient to state a legal claim for relief.
Plaintiff alleges that the actions of defendants Krock, Mitt,
and Baker violated his rights under the Eighth Amendment.2 This arises
from his assignment to an upper-level cell that allegedly was
unsuitable for plaintiff due to his medical condition. “[A] prison
official’s deliberate indifference to a substantial risk of serious
harm to an inmate violates the Eighth Amendment.” Gray v. Sorrels,
744 F. App’x 563, 568 (10th Cir. 2018)(quoting Farmer v. Brennan, 511
U.S. 825, 828 (1994)(quotations omitted)).
The “deliberate indifference” standard has both an objective
and a subjective component. Martinez v. Garden, 430 F.3d 1302, 1304
(10th Cir. 2005)(citation omitted). To meet the objective part of this
standard, the deprivation must be “sufficiently serious”, and the
inmate plaintiff must show the existence of a “serious medical need.”
Estelle v. Gamble, 429 U.S. 97, 104 (1976); Farmer v. Brennan, 511
U.S. 825, 834 (1994). A serious medical need is “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 complaint also alleges that these defendants violated plaintiff’s Fourteenth
Amendment rights. The Fourteenth Amendment, however, does not apply to the federal
government. See, e.g., Belhomme v. Windnall, 127 F.3d 1214, 1217 n. 4 (10th Cir.
1997). The Court therefore analyzes his claims under the Eighth Amendment.
2

“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 evaluating 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 prisoner and prison
medical personnel regarding a diagnosis or reasonable treatment does
not constitute cruel and unusual punishment. See Estelle, 429 U.S.
at 106-07. The “‘negligent failure to provide adequate medical care,
even one constituting medical malpractice, does not give rise to a
constitutional violation.’” Self v. Crum, 439 F.3d 1227, 1223 (10th
Cir. 2006)(quoting Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 811
(10th Cir. 1999)).
In this case, plaintiff’s needs were evaluated by defendant
Krock, an assistant health administrator, prior to his transfer to
the upper-level housing area. The decision that he did not require
restrictions and could be housed in that area is one of medical
judgment, and plaintiff has provided only bare claims that do not
present a sufficient basis to challenge that decision. Likewise,
because the transfer decision entered by defendants Mitts and Baker
was based upon the medical assessment made by defendant Krock, their
action was a reasonable choice made within the exercise of their
discretion. Finally, the fact that plaintiff’s medical needs were
evaluated at a hospital and he was transferred to another facility
does not support a claim of deliberate indifference.
IT IS, THEREFORE, BY THE COURT ORDERED that on or before January

21, 2020, plaintiff shall show cause why this matter should not be
dismissed for failure to state a claim for relief.

The failure

to file a timely response may result in the dismissal of this matter
without additional prior notice.
IT IS SO ORDERED.
DATED:

This 20th day of December, 2019, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge