McDade v. Corizon Health et al

Filing 6

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted to and including October 14, 2020, to submit an amended complaint. Plaintiff's motion to issue summons (Doc. 2 ) and motion to authorize service of process (Doc. 5 ) are denied without prejudice. Signed by U.S. Senior District Judge Sam A. Crow on 9/14/2020. Mailed to pro se party Dexter McDade by regular mail. (jal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DEXTER McDADE,
Plaintiff,
v.

CASE NO. 20-3042-SAC

CORIZON, et al.,
Defendants.

MEMORANDUM AND ORDER
This matter is a civil rights action filed under 42 U.S.C. § 1983
by a prisoner in state custody. The claims arose during plaintiff’s
incarceration in the custody of the Kansas Department of Corrections.
Screening Requirement
A federal district court must review complaints filed by
prisoners seeking relief against a governmental entity or an officer
or employee of a governmental entity. 28 U.S.C. § 1915A(a). After an
initial review, a court must dismiss a complaint or any portion of
it presenting claims that are frivolous, malicious, fail to state a
claim upon which relief may be granted, or seek monetary relief from
a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
Standard of Review
A complaint need not set forth detailed factual allegations, yet
“[a] pleading that offers ‘labels and conclusions’ or a ‘formulaic
recitation of the elements of a cause of action’” is insufficient.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the
elements

of

a

cause

of

action,

supported

by

mere

conclusory

statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678.

“Factual allegations must be enough to raise a right to relief above
the speculative level, on the assumption that all the allegations in
the complaint are true (even if doubtful in fact).” Bell Atl. Corp.
v. Twombly, 550 U.S. at 555 (citations and footnote omitted). 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. “[T]o 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).
A plaintiff in an action brought under § 1983 may not rely on
respondeat superior liability. See Ashcroft v. 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.”). Therefore, it is insufficient to say
only that a defendant is responsible for running a correctional
facility. Instead, the complaint must explain specifically what the
defendant did or failed to do that allegedly violated the plaintiff’s
rights.
Because the present complaint alleges in only broad terms that
plaintiff was subjected to deliberate indifference in the provision
of health care for his cystitis, the Court will direct him to amend

the complaint to provide the degree of detail described in the Nasious
decision. If he chooses, plaintiff also may submit copies of the
grievance materials relevant to his complaint.
Plaintiff’s motions for service of process will be denied without
prejudice. The Court will conduct a second screening review of the
amended complaint and will determine whether service is required. The
failure to file an amended complaint may result in the dismissal of
this matter without additional notice.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff is granted to
and including October 14, 2020, to submit an amended complaint.
IT IS FURTHER ORDERED plaintiff’s motion to issue summons (Doc.
2) and motion to authorize service of process (Doc. 5) are denied
without prejudice.
IT IS SO ORDERED.
DATED:

This 14th day of September, 2020, at Topeka, Kansas.

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