Steward v. Hodges et al

Filing 14

MEMORANDUM OPINION AND ORDER by District Judge Robert C. Brack Denying as Moot 13 MOTION to Extend, and Dismissing without prejudice 1 Complaint filed by Nathaniel Steward. Plaintiff is granted 30 days in which to file an Amended Complaint that states a claim on which relief may be granted. (jjs)

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

NATHANIEL STEWARD,
Plaintiff,
v.

No. 16-CV-1374-RB-CG

FNU HODGES, CORIZON MEDICAL
DEPARTMENT, FNU FERNANDO,
FNU LOZOYA, ROBIN BRUCK,
Defendants.

MEMORANDUM OPINION AND ORDER OF DISMISSAL
This matter is before the Court sua sponte under 28 U.S.C. §§ 1915(e)(2) and 1915A on
Plaintiff Nathanial Steward’s civil rights complaint (Doc. 1) and Memorandum of Law (Doc. 6).
Also before the Court is Plaintiff’s motion for extension of time to pay the initial partial payment
ordered by the Court pursuant to 28 U.S.C. § 1915(b)(1). (Doc. 13.) Plaintiff is incarcerated,
appears pro se, and is proceeding in forma pauperis. For the reasons explained below, Plaintiff’s
motion for extension of time will be denied as moot, Plaintiff’s complaint will be dismissed
without prejudice for failure to state a claim on which relief may be granted, and Plaintiff will be
granted 30 days from the date of entry of this order to file an amended complaint.
I.

BACKGROUND
On December 16, 2016, Plaintiff filed a civil rights complaint against the following

Defendants: (1) Deputy Warden Hodges; (2) Corizon Medical Department; (3) Nurse Fernando;
(4) Officer Lozoya; and (5) Grievance Officer Robin Bruck. (Doc. 1) Plaintiff alleges that on
July 2, 2016, he was “involved in an altercation” with another inmate, during which he was “shot

by Officer Lozoya” with a “shotgun beanbag.” (Id. at 5.) After the shooting, Plaintiff alleges
that he was denied “proper treatment for whatever is going on with him mentally as well as
physically.” (Id.) Plaintiff contends that he submitted multiple informal complaints and formal
grievances, but his informal complaints and formal grievances were lost, unanswered, denied, or
deemed resolved, even though they were not resolved to his satisfaction. Plaintiff alleges that
Defendants have acted in bad-faith and denied him access to the Court, because they “won’t
answer his last step in the grievance process.” (Id.)
Attached to Plaintiff’s complaint are various Inmate Informal Complaints and Grievances
filed by Plaintiff, as well as Plaintiff’s correspondence with multiple law firms. (Id. at 13–37.)
With respect to relief, Plaintiff’s complaint does not seek damages or injunctive relief, since such
relief “would be premature at this time unless court stated exhaustion is complete.” (Id. at 11.)
Rather, “at this time [Plaintiff] only wants to be heard fully in accordance to the D.O.C. state
policy (CD Policy) in a good faith process, or answer the unanswered ones and take the process
serious.” (Id.)
On January 13, 2017, Plaintiff filed a Memorandum of Law, which reiterates Plaintiff’s
claim that “the corrections here are using the exhaustion requirement to defeat valid
constitutional claims.” (Doc. 6 at 1.) Attached to Plaintiff’s Memorandum of Law were three
Inmate Grievances, which previously had been submitted to the Court as attachments to
Plaintiff’s civil rights complaint, with the notable difference that these Inmate Grievances reflect
that Plaintiff completed the final part of the form entitled “Step 5 – Departmental Appeal.”
(Compare Doc. 1 at 23–27, with Doc. 6 at 6-12.)

There is no indication that Plaintiff’s

“Departmental Appeal” was submitted to the appropriate grievance officers and, if so, on what
date the submission took place. (Doc. 6 at 6–12.)

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On January 18, 2017, the Court granted Plaintiff’s Application To Proceed In District
Court Without Prepaying Fees or Costs pursuant to 28 U.S.C. § 1915 and ordered Plaintiff to
submit an initial partial payment in the amount of $40.83 pursuant to § 1915(b)(1)(A). (Doc. 7.)
Plaintiff timely submitted his initial partial payment on February 21, 2017. (See Docs. 9, 10.)
On March 9, 2017, Plaintiff submitted a motion for extension of time to submit the initial partial
payment. (Doc. 13.)
II.

DISCUSSION
First the Court will address Plaintiff’s motion for extension of time (Doc. 13), and then

the Court will screen the merits of Plaintiff’s civil rights complaint pursuant to 28 U.S.C. §§
1915(e) and 1915A(b).
A.

The Court Will Deny Plaintiff’s Motion for Extension of Time as Moot

On March 9, 2017, Plaintiff moved for an extension of time in which to submit the initial
partial payment of $40.83, because the necessary funds were not deposited into his inmate
account until February 15, 2017. (Doc. 13.) The docket reflects that Plaintiff’s initial partial
payment was timely submitted to the Court on February 21, 2107. (Doc. 10.) Therefore, no
extension of time is needed and Plaintiff’s motion will be denied as moot. Plaintiff is reminded
that he is “required to make monthly payments of 20 percent of the preceding month’s income”
credited to his inmate account until the $350 filing fee is paid in full. 28 U.S.C. § 1915(b).
B.

The Court Will Dismiss Plaintiff’s Civil Rights Complaint without Prejudice

The Court has the discretion to dismiss an in forma pauperis complaint sua sponte under
§§ 1915(e)(2)(B) and 1915A at any time if the action is frivolous, malicious, or fails to state a
claim on which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b). “Dismissal of
a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff

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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
Atl. 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.
It appears that Plaintiff is claiming that his constitutional rights have been violated by
Defendants’ alleged failure to respond appropriately to his informal complaints and formal
grievances. This claim lacks merit because “there is no independent constitutional right to state
administrative grievance procedures. . . . Nor does the state’s voluntary provision of an
administrative grievance process create a liberty interest in that process.” Boyd v. Werholtz, 443
F. App’x 331, 332 (10th Cir. 2011). The refusal to entertain an inmate’s grievances does not
implicate the inmate’s constitutional right of access to the courts. See Flick v. Alba, 932 F.2d

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728, 729 (8th Cir. 1991) (“When the claim underlying the administrative grievance involves a
constitutional right, the prisoner’s right to petition the government for redress is the right of
access to the courts, which is not compromised by the prison’s refusal to entertain his
grievances.”) (per curiam). Although an inmate is required to exhaust available administrative
remedies before filing an action in federal court, see 42 U.S.C. § 1997e(a), the United States
Court of Appeals for the Tenth Circuit has “held that when a prison official prevents a prisoner
from accessing the administrative grievance process, administrative remedies are ‘unavailable’
such that the prisoner may proceed directly to court without first exhausting the grievance
process.” Fogle v. Gonzales, 570 F. App’x 795, 797 (10th Cir. 2014). Defendants’ alleged
failure to respond to Plaintiff’s informal complaints and inmate grievances in no way prevented
or hindered Plaintiff from bringing suit in the present case and, therefore, Plaintiff’s lack of
access-to-the-courts claim is frivolous. See id.
Plaintiff’s complaint also appears to allege that Plaintiff was denied his Eighth
Amendment right to be free from cruel and unusual punishment when he was shot by Officer
Lozoya and then denied medical care for his physical and psychological injuries. (Doc. 1 at 5–
6.) “After incarceration, only the unnecessary and wanton infliction of pain . . . constitutes cruel
and unusual punishment forbidden by the Eighth Amendment.” Ingraham v. Wright, 430 U.S.
651, 670 (1977) (internal quotation marks and citation omitted). An Eighth Amendment claim is
comprised of two components:

(1) an objective component, which “asks if the alleged

wrongdoing was objectively harmful enough to establish a constitutional violation,” and (2) a
subjective component, “under which the plaintiff must show that the officials acted with a
sufficiently culpable state of mind.” Smith v. Cochran, 339 F.3d 1205, 1212 (10th Cir. 2013)
(internal quotation marks and citation omitted). With this standard in mind, the Court first will

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address Plaintiff’s excessive force claims and then will consider his medical care claims.
“Where a prison security measure is undertaken to resolve a disturbance . . . that
indisputably poses significant risks to the safety of inmates and prison staff, . . . the question
whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns
on whether the force was applied in a good faith effort to maintain or restore discipline or
maliciously and sadistically for the very purpose of causing harm.” Whitley v. Albers, 475 U.S.
312, 320–21 (1986). When evaluating an excessive force claim, the Court should consider “such
factors as the need for the application of force, the relationship between the need and the amount
of force that was used, [and] the extent of the injury inflicted.” Id. (internal quotation marks and
citation omitted). “From such considerations inferences may be drawn as to whether the use of
force could plausibly have been thought necessary, or instead evinced such wantonness with
respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it
occur.” Id. at 321. “But equally relevant are such factors as the extent of the threat to the safety
of staff and inmates, as reasonably perceived by the responsible officials on the basis of the facts
known to them, and any efforts made to temper the severity of the forceful response.” Id.
The sparse facts in Plaintiff’s complaint are insufficient to support a reasonable inference
that Officer Lozoya shot Plaintiff with a beanbag maliciously and sadistically for the very
purpose of causing harm, as opposed to acting in a good faith effort to maintain or restore
discipline by breaking up a fight between two inmates. See Anderson v. Virga, No. 2:15-CV1148-KJM-EFB P, 2017 WL 1179142 at *4 (E.D.Ca. March 29, 2017) (finding plaintiff’s
allegation that he was shot by a less-lethal block gun to quell a disturbance in the prison yard was
insufficient to support “a plausible inference that [the defendant] maliciously and sadistically
shot him to harm him”). Although Plaintiff alleges that “Officer Lozoya could have refrained

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from shooting Plaintiff with the shotgun bean bag” because “there was a response team at the
Pod’s door waiting for Officer Lozoya to open it so they could restrain Plaintiff,” he fails to
allege that Officer Lozoya actually knew about the presence of the response team and failed to
temper the severity of his forceful response. Because the facts alleged in Plaintiff’s complaint
are insufficient to establish that Officer Lozoya acted with the requisite state of mind, Plaintiff’s
excessive force claims will be dismissed without prejudice for failure to state a claim on which
relief may be granted under § 1915(e)(2)(B)(ii) and 1915A(b).
Plaintiff also alleges that he was deprived of adequate medical care, but he fails to
explain the nature and extent of his injuries, whether Defendants were aware of his need for
medical care, what medical care, if any, was provided to him, and what additional medical care,
if any, was required.

Thus, the factual allegations in Plaintiff’s complaint are insufficient to

establish that Plaintiff’s medical needs were sufficiently serious to satisfy the objective
component of the Eighth Amendment standard. See Sealock v. Colorado, 218 F.3d 1205, 1209
(10th Cir. 2000) (“A medical need is sufficiently serious if it 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.”).
Additionally, the factual allegations in Plaintiff’s complaint are insufficient to satisfy the
subjective component of the Eighth Amendment standard by supporting a reasonable inference
that Defendants acted with a culpable state of mind, i.e., that Defendants each were aware of and
disregarded an excessive risk to Plaintiff’s health or safety. See Farmer v. Brennan, 511 U.S.
825, 837 (1994) (holding that “a prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of confinement unless the official knows
of and disregards an excessive risk to inmate health or safety; the official must both be aware of

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facts from which the inference could be drawn that a substantial risk of serious harm exists and
he must also draw the inference”). Therefore, Plaintiff’s medical care claims will be dismissed
without prejudice for failure to state a claim on which relief may be granted under §
1915(e)(2)(B)(ii) and 1915A(b).
Plaintiff may be able to cure the deficiencies in his complaint with additional factual
allegations. Accordingly, the Court will afford Plaintiff 30 days in which to file an amended
complaint. Plaintiff’s amended complaint must “make clear exactly who is alleged to have done
what to whom, to provide each individual with fair notice as to the basis of the claims against
him or her.” Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008). This is because
“[w]hen various officials have taken different actions with respect to a plaintiff, the plaintiff’s
facile, passive-voice showing that his rights ‘were violated’ will not suffice.

Likewise

insufficient is a plaintiff’s more active-voice yet undifferentiated contention that ‘defendants’
infringed his rights.” Pahls v. Thomas, 718 F.3d 1210, 1225–26 (10th Cir. 2013). “Rather, it is
incumbent upon a plaintiff to identify specific actions taken by particular defendants in order to
make out a viable § 1983” claim.

Id. (internal quotation marks and citation omitted).

Specifically, Plaintiff’s amended complaint “must explain what each defendant did to him . . . ;
when the defendant did it; how the defendant’s action harmed him . . . ; 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). Failure timely to file an amended complaint that states a
claim on which relief may be granted may result in the dismissal of this action without prejudice
without further notice.
IT IS THEREFORE ORDERED that Plaintiff’s Motion For Extension of Time (Doc.
13) is DENIED as moot;

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IT IS FURTHER ORDERED that Plaintiff’s complaint (Doc. 1) is DISMISSED
without prejudice and Plaintiff is granted 30 days in which to file an amended complaint that
states a claim on which relief may be granted;
IT IS FURTHER ORDERED that the Clerk of the Court is directed to send to Plaintiff,
together with a copy of this order, a form § 1983 complaint, with instructions.

________________________________
ROBERT C. BRACK
UNITED STATES DISTRICT JUDGE

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