Harry v. Hudson et al
MEMORANDUM AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted until October 17, 2022, in which to show good cause, in writing, why Plaintiff's Complaint should not be dismissed. Plaintiff is granted until October 17, 2022, in which to file a complete and proper amended complaint to cure all the deficiencies. Signed by District Judge John W. Lungstrum on 09/15/22. Mailed to pro se party Scott Harry by regular mail with § 1983 forms and instructions. (smnd)
Case 5:22-cv-03186-JWL-JPO Document 4 Filed 09/15/22 Page 1 of 9
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CASE NO. 22-3186-JWL-JPO
(FNU) HUDSON, Warden,
MEMORANDUM AND ORDER
TO SHOW CAUSE
Plaintiff Scott Harry is hereby required to show good cause, in writing, to the Honorable
John W. Lungstrum, United States District Judge, why this action should not be dismissed due to
the deficiencies in Plaintiff’s Complaint that are discussed herein. Plaintiff is also given the
opportunity to file an amended complaint to cure the deficiencies.
I. Nature of the Matter before the Court
Plaintiff brings this pro se civil rights action under Bivens v. Six Unknown Named Agents
of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Although Plaintiff is currently
incarcerated at FCI-Edgefield in Edgefield, South Carolina, the events giving rise to his Complaint
occurred during his detention at USP-Leavenworth in Leavenworth, Kansas. The Court granted
Plaintiff leave to proceed in forma pauperis and assessed an initial partial filing fee of $31.50,
which is due by September 15, 2022. (Doc. 3.)
Plaintiff alleges that medical care he received at USP-Leavenworth was constitutionally
inadequate. He states that on October 4, 2019, Dr. Robert Kenney requested that Plaintiff have a
consultation for a hernia repair. Plaintiff saw Dr. Christine Aulepp once, and then she operated on
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him on January 21, 2020. It was a laparoscopic procedure to repair a left inguinal hernia. Dr.
Aulepp used mesh to repair the hernia. Plaintiff saw Dr. Jason Clark on July 9, 2020, for a followup, and Dr. Clark found no issues and said that Plaintiff should continue to improve. However,
Plaintiff alleges that the operation was not successful and that he did not improve. He claims that
the doctors “waited too long to operate” and that the mesh used by the surgeon was “outlawed”
prior to his operation. Plaintiff states that he has more pain than before the operation.
Plaintiff names as defendants (fnu) Hudson, Warden of USP-Leavenworth; Dr. Jason
Clark; Dr. Christine Aulepp; and Dr. Robert Kenney. He alleges the three doctors are employed
at USP-Leavenworth. Plaintiff seeks punitive and compensatory damages, as well as medical care
for his hernia.
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)–
To state a Bivens claim, a plaintiff must allege the violation of a constitutional right by a
federal officer acting under color of federal authority. Bivens, 403 U.S. at 389. 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 wellpleaded 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.
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544, 558 (2007).
A pro se litigant’s “conclusory allegations without supporting factual averments are
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
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innocent,” then the plaintiff has not “nudged [his] claims across the line from conceivable to
plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S.
Ct. at 1974).
After reviewing Plaintiff’s Complaint, the Court finds that it is subject to dismissal for the
A. Insufficient Factual Allegations
Plaintiff’s Complaint is subject to dismissal because it does not contain sufficient facts to
state an actionable claim against any defendant. As explained above, “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, 492 F.3d at 1163. Plaintiff fails to provide
a coherent picture of what happened and what specific conduct of which defendant(s) he believes
violated his constitutional rights. Given the sparse and confusing allegations in the Complaint, the
Court is not even sure which defendant performed the hernia surgery.
Plaintiff is given an opportunity to file an amended complaint. When preparing the
amended complaint, Plaintiff should focus on clearly explaining what happened.
B. Failure to State a Claim under the Eighth Amendment
The Eighth Amendment guarantees a prisoner the right to be free from cruel and unusual
punishments. The United States Supreme Court has held that an inmate advancing a claim of cruel
and unusual punishment based on inadequate provision of medical care must establish “deliberate
indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976); Boyett v.
County of Washington, 282 F. App’x 667, 672 (10th Cir. 2008) (citing Mata v. Saiz, 427 F.3d 745,
751 (10th Cir. 2005)). The “deliberate indifference” standard has two components: “an objective
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component requiring that the pain or deprivation be sufficiently serious; and a subjective
component requiring that [prison] officials act with a sufficiently culpable state of mind.” Miller
v. Glanz, 948 F.2d 1562, 1569 (10th Cir. 1991); Martinez v. Garden, 430 F.3d 1302, 1304 (10th
Cir. 2005). In the objective analysis, 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). 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.” Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir.
1980); Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999); Martinez, 430 F.3d at 1304 (quoting
Farmer, 511 U.S. at 834 (quotation omitted)).
“The subjective component is met if a prison official knows of and disregards an excessive
risk to inmate health or safety.” Martinez, 430 F.3d at 1304 (citing Sealock v. Colorado, 218 F.3d
1205, 1209 (10th Cir. 2000) (quotation omitted)). 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 (citing Riddle v.
Mondragon, 83 F.3d 1197, 1204 (10th Cir. 1996) (quotation omitted)).
An inadvertent failure to provide adequate medical care or a negligent diagnosis “fail[s] to
establish the requisite culpable state of mind.” Estelle, 429 U.S. at 106 (“[A] complaint that a
physician has been negligent in diagnosing or treating a medical condition does not state a valid
claim of medical mistreatment under the Eighth Amendment.”); Wilson v. Seiter, 501 U.S. 294,
297 (1991). Likewise, 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, 429 U.S. at 106–07; Handy v. Price, 996 F.2d 1064, 1067 (10th Cir.
1993) (affirming that a quarrel between a prison inmate and the doctor as to the appropriate
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treatment for hepatitis did not successfully raise an Eighth Amendment claim); Ledoux v. Davies,
961 F.2d 1536 (10th Cir. 1992) (Plaintiff’s contention that he was denied treatment by a specialist
is insufficient to establish a constitutional violation.); El’Amin v. Pearce, 750 F.2d 829, 833 (10th
Cir. 1984) (A mere difference of opinion over the adequacy of medical treatment received cannot
provide the basis for an Eighth Amendment claim.). Where the complaint alleges a “series of sick
calls, examinations, diagnoses, and medication,” it “cannot be said there was a ‘deliberate
indifference’ to the prisoner's complaints.” Smart v. Villar, 547 F.2d 112, 114 (10th Cir. 1976).
As the United States Supreme Court explained:
[A]n inadvertent failure to provide adequate medical care cannot be said to
constitute “an unnecessary and wanton infliction of pain” or to be “repugnant to the
conscience of mankind.” Thus, a complaint that a physician has been negligent in
diagnosing or treating a medical condition does not state a valid claim of medial
mistreatment under the Eighth Amendment. Medical malpractice does not become
a constitutional violation merely because the victim is a prisoner.
Estelle, 429 U.S. at 105–106 (footnote omitted). The prisoner’s right is to medical care - not to
the type or scope of medical care he personally desires. A difference of opinion between a
physician and a patient or even between two medical providers does not give rise to a constitutional
right or sustain a claim under § 1983. Coppinger v. Townsend, 398 F.2d 392, 394 (10th Cir. 1968).
Plaintiff’s assertion that he received constitutionally inadequate medical care is subject to
dismissal for failure to state a claim. Plaintiff’s allegations indicate that he was furnished medical
care. While the Court is hampered by Plaintiff’s lack of factual details, it seems that Plaintiff is
basing his claim on the fact that the surgeon used surgical mesh to attempt to repair his hernia, or
perhaps on the fact that the operation was not successful in the long term. The Court is not aware
of any ban on the use of surgical mesh such that the surgeon’s choice was “repugnant to the
conscience of mankind” and subjected Plaintiff to cruel and unusual punishment. Further, an
unsuccessful surgery is not, in and of itself, an indication of deliberate indifference. Plaintiff’s
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claim seems to amount to a difference of opinion with the surgical method and course of treatment
ordered by medical professionals. Such allegations do not rise to the level of cruel and unusual
punishment under the Eighth Amendment and are, at most, grounds for a negligence or malpractice
claim in state court.
C. Failure to Allege Personal Participation of Defendants
Plaintiff also fails to allege the personal participation of Warden Hudson. An essential
element of a civil rights claim against an individual is that person’s direct personal participation in
the acts or inactions upon which the complaint is based. Kentucky v. Graham, 473 U.S. 159, 166
(1985); Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir. 2006); Foote v. Spiegel, 118 F.3d 1416,
1423–24 (10th Cir. 1997). Conclusory allegations of involvement are not sufficient. See Ashcroft
v. Iqbal, 556 U.S. 662, 676 (2009) (“Because vicarious liability is inapplicable to . . . § 1983 suits,
a plaintiff must plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.”). As a result, a plaintiff is required to name each
defendant not only in the caption of the Complaint, but again in the body of the Complaint and to
include in the body a description of the acts taken by each defendant that violated Plaintiff’s federal
An official’s liability may not be predicated solely upon a theory of respondeat superior.
Rizzo v. Goode, 423 U.S. 362, 371 (1976); Duffield v. Jackson, 545 F.3d 1234, 1239 (10th Cir.
2008); Gagan v. Norton, 35 F.3d 1473, 1476 n.4 (10th Cir. 1994), cert. denied, 513 U.S. 1183
(1995). To be held liable under § 1983, a supervisor must have personally participated in the
complained-of constitutional deprivation. Meade v. Grubbs, 841 F.2d 1512, 1528 (10th Cir. 1988).
“[T]he defendant’s role must be more than one of abstract authority over individuals who actually
committed a constitutional violation.” Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008).
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It appears that Plaintiff named Defendant Hudson solely on the basis of his status as
warden. This is not sufficient to state a Bivens claim against him. This defendant is therefore
subject to dismissal.
In addition, as explained above, Plaintiff includes only sparse and confusing allegations
about the three physician defendants. Plaintiff is given an opportunity to file an amended
complaint to clarify how each of the named defendants personally participated in violating his
IV. Response and/or Amended Complaint Required
Plaintiff is required to show good cause why the claims and defendants discussed above
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.
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 (22-3186-JWLJPO) at the top of the first page of his amended complaint, and he 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 amended complaint, where he 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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The amended complaint should concisely (1) raise only properly joined claims and
defendants; (2) allege sufficient facts to state a claim for a federal constitutional violation and show
a cause of action in federal court; and (3) allege 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 and may be dismissed without further notice for failure to state a claim.
IT IS THEREFORE ORDERED THAT Plaintiff is granted until October 17, 2022, in
which to show good cause, in writing, why Plaintiff’s Complaint should not be dismissed for the
reasons stated herein.
IT IS FURTHER ORDERED THAT Plaintiff is granted until October 17, 2022, in
which to file a complete and proper amended complaint to cure all the deficiencies discussed
The clerk is directed to send § 1983 forms and instructions to Plaintiff.
IT IS SO ORDERED.
Dated September 15, 2022, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE
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