Raymond v. Arnold et al

Filing 22

MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales dismissing 6 Amended Complaint. (tah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

CARLOS RAYMOND,
Plaintiff,
v.

No. 16-CV-00304-KG-CG

FNU ARNOLD, TIMOTHY TRAPP,
FNU ALLEN, VINCENT HORTON,

Defendants.

MEMORANDUM OPINION AND ORDER OF DISMISSAL
This matter is before the Court, sua sponte under 28 U.S.C. § 1915(e)(2), on Plaintiff
Carlos Raymond’s Amended Prisoner’s Civil Rights Complaint [Doc. 6], filed on May 2, 2016.
Plaintiff is incarcerated, appears pro se, and is proceeding in forma pauperis. For the reasons set
out below, Plaintiff’s Amended Prisoner’s Civil Rights Complaint will be dismissed and
judgment will be entered.
The Court has the discretion to dismiss an in forma pauperis complaint sua sponte under
§ 1915(e)(2) “at any time if . . . the action . . . is frivolous or malicious; [or] fails to state a claim
on which relief may be granted.” Section 1915 “accords judges not only the authority to dismiss
a claim based upon an indisputably meritless legal theory, but also the unusual power to pierce
the veil of the complaint’s factual allegations and dismiss those claims whose factual contentions
are clearly baseless.” Nietizke v. Williams, 490 U.S. 319, 327 (1989). A complaint is legally
frivolous if it is based on based on an “indisputably meritless legal theory,” such as “claims of
infringement of a legal interest which clearly does not exist.” Id.
Additionally, under rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court can

dismiss a complaint for failure to state a claim “where it is obvious that the plaintiff cannot
prevail on the facts he has alleged and it would be futile to give him an opportunity to amend.”
Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). The burden is on the plaintiff to frame a
complaint that contains “sufficient factual matter, accepted as true, to ‘state a claim for relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements do not suffice.” Id.
Plaintiff is proceeding pro se and “[a] pro se litigant’s pleadings are to be construed
liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Therefore, “if the court can reasonably read the
pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the
plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his poor
syntax and sentence construction, or his unfamiliarity with pleading requirements.” Id. At the
same time, however, it is not “the proper function of the district court to assume the role of
advocate for the pro se litigant.” Id.
Plaintiff’s Amended Prisoner’s Civil Rights Complaint superseded his original complaint
and, therefore, is the operative pleading for the purpose of this Court’s review under § 1915(e).
See Mink v. Suthers, 482 F.3d 1244, 1254 (10th Cir. 2007) (noting that “an amended complaint
supercedes an original complaint and renders the original complaint without legal effect.”)
(internal quotation marks and citations omitted). Plaintiff contends that he is “just not getting the
right proper medical care and treatment,” in violation of his right to be free from cruel and

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unusual punishment under the Eighth Amendment and his right to due process of law under the
Fourteenth Amendment. [Doc. 6 at 3 and 5] The exhibits attached to Plaintiff’s amended
complaint reveal that Plaintiff has been “getting cuts on private part of [his] body” and that these
cuts have been treated by Defendants Trapp and Allen with antifungal cream, oral antifungal
medication, and skin protectant ointment. [Doc. 6 at 11-15] Plaintiff disagrees with this course
of treatment, contending that it has been ineffective in resolving the problem, and that he has
suffered “embarrassment [and] mental abuse having to deal with [this] medical issue in [his]
life.” [Doc. 6 at 12] Plaintiff also contends that he has “put in sick calls . . . for other issues like
[his] back pain and just been given” ibuprofen. [Doc. 6 at 11] Plaintiff seeks a preliminary and
permanent

injunction

requiring

Defendants

“to

make

arrangments

[sic]

to

see

specialist/hospital,” compensatory damages, punitive damages, and costs. [Doc. 6 at 18]
Plaintiff’s amended complaint names Vincent Horton, the Warden at Guadalupe County
Correctional Facility, and Doctor Arnold, the corporate doctor for Corizon Health Care Services,
as defendants. It is well established that Ҥ 1983 does not allow a plaintiff to hold an individual
government official liable under a theory of respondeat superior,” Dodds v. Richardson, 614
F.3d 1185, 1194-95 (10th Cir. 2010) (internal quotation marks omitted), and that “individual
liability under § 1983 must be based on personal involvement in the alleged constitutional
violation.” Id. at 1195 (internal quotation marks omitted). However, “[p]ersonal involvement
does not require direct participation,” because a plaintiff may “succeed in a § 1983 suit against a
defendant-supervisor by demonstrating that (1) the defendant promulgated, created, implement
or possessed responsibility for the continued operation of a policy that (2) caused the complained
of constitutional harm, and (3) acted with the state of mind required to establish the alleged
constitutional violation.”

Id. at 1199.

Plaintiff’s amended complaint does not allege that

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Defendants Horton and Arnold personally were involved in the alleged constitutional violations
or that they promulgated, created, or implemented a policy that caused the alleged constitutional
violations. To the extent that Plaintiff’s constitutional claims against Defendants Horton and
Arnold are predicated on the denial of his informal complaints and formal grievances, the United
States Court of Appeals for the Tenth Circuit has held that “a denial of a grievance, by itself
without any connection to the violation of constitutional rights alleged by Plaintiff, does not
establish personal participation under § 1983.” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th
Cir. 2009). Therefore, with respect to Defendants Horton and Arnold, the Court concludes that
Plaintiff’s amended complaint fails to state a claim on which relief may be granted under §
1915(e)(2)(B)(ii).1
Turning to Plaintiff’s claims against Defendants Trapp and Allen, the Court notes that
“[t]he Eighth Amendment, applied to the states through the Due Process Clause of the
Fourteenth Amendment, prohibits infliction of cruel and unusual punishments on those convicted
of crimes.”2 Miller v. Glanz, 948 F.2d 1562, 1569 (10th Cir. 1991). It is well established that
“deliberate 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). However, “a complaint that a physician has been
negligent in diagnosing or treating a medical condition does not state a valid claim of medical
1

For the reasons explained in the body of this Memorandum Opinion and Order of Dismissal, the Court concludes
that amendment of Plaintiff’s amended complaint to include allegations of personal participation in the alleged
constitutional violations would be futile, since the alleged violation of Plaintiff’s Eighth and Fourteenth Amendment
rights is based on an indisputably meritless legal theory.
2
It is unclear whether Plaintiff has invoked the Fourteenth Amendment because the Eighth Amendment only is
applicable to the states through the Fourteenth Amendment or because Plaintiff is attempting to allege a separate
violation of his right to substantive due process of law. Regardless, the United States Courts of Appeals for the
Tenth Circuit has “noted that where constitutional protection is afforded under specific constitutional provisions,
alleged violations of the protection should be analyzed under those provisions and not under the more generalized
provisions of substantive due process.” Riddle v. Mondgragon, 83 F.3d 1197, 1202 (10th Cir. 1996). Therefore, the
Court will review Plaintiff’s “claims under the Eighth Amendment as made applicable to the states through the
Fourteenth Amendment.” Id.

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mistreatment under the Eighth Amendment.

Medical malpractice does not become a

constitutional violation merely because the victim is prisoner.”

Id. at 106. “Moreover, a

prisoner who merely disagrees with a diagnosis or a prescribed course of treatment does not state
a constitutional violation.” Perkins v. Kansas Dep’t of Corr., 165 F.3d 803, 811 (10th Cir.
1999). The factual allegations in Plaintiff’s amended complaint reveal that he has repeatedly
requested and received medical treatment from Defendants Trapp and Allen for the cuts to his
private parts and his back pain, but that Plaintiff disagrees with the course of medical treatment
prescribed. 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.” Ledoux v. Davies, 961 F.2d 1536, 1537 (10th
Cir. 1992); see also Callahan v. Poppell, 471 F.3d 1155, 1160 (10th Cir. 2006) (noting that
“[b]oth this court and our sister circuits” have determined that the Eighth Amendment does not
protect a prisoner’s right “to a particular course of [medical] treatment”). Because Plaintiff’s
constitutional claims against Defendants Trapp and Allen are based on an indisputably meritless
legal theory, they will be dismissed as frivolous under § 1915(e)(2)(B)(i).
IT IS THEREFORE ORDERED that Plaintiff’s Amended Prisoner’s Civil Rights
Complaint [Doc. 6] is DISMISSED under § 1915(e)(2); and judgment will be entered.

_________________________________
UNITED STATES DISTRICT JUDGE

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