United States District Court, D. New Mexico
VICTOR B. PLUMB, Plaintiff,
R.C. SMITH, GEO Group Warden, FNU LEWIS, Centurion Health Care Nurse Administrator, FNU BRADSHAW, Centurion Health Care, VALERIE NAEGELE, N.M.C.D., Defendants.
MEMORANDUM OPINION AND ORDER
matter is before the Court, sua sponte under 28
U.S.C. §§ 1915(e)(2) and 1915A, on Plaintiff Victor
B. Plumb's Prisoner's Civil Rights Complaint (Doc.
1), filed on April 12, 2017. Plaintiff is incarcerated,
appears pro se, and is proceeding in forma pauperis.
For the reasons explained below, Plaintiff's complaint
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) and Plaintiff will be granted
thirty (30) days in which to file an amended complaint.
April 12, 2017, Plaintiff filed a Prisoner's Civil Rights
Complaint against Defendants R.C. Smith, Warden of Lea County
Correctional Facility (LCCF), Mrs. Lewis, Nurse Administrator
at LCCF, Mrs. Bradshaw of Centurion Health Care, and Valerie
Naegel of the New Mexico Department of Corrections (NMCD).
(Doc. 1 at 1). Plaintiff alleges that he was assigned to the
top bunk on the second tier of LCCF, even though he had a
“lower bunk medical pass.” (Doc. 1 at 2-3.
Plaintiff alleges that, in light of his age and medical
conditions, this housing placement put him in danger of
physical injury in violation of his right to be free from
cruel and unusual punishment under the Eighth Amendment of
the United States Constitution. (Doc. 1 at 2). Plaintiff
further alleges that he is receiving inadequate medical care,
in violation of his Eighth Amendment rights. (Doc. 1 at 4).
Plaintiff seeks injunctive relief, as well as compensatory,
nominal, and punitive damages. (Doc. 1 at 6, 7).
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 §§
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 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.”
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.”
[42 U.S.C.] § 1983, government officials are not
vicariously liable for the misconduct of their
subordinates” and, therefore, “it is not enough
for a plaintiff merely to show a defendant was in charge of
other state actors who actually committed the violation.
Instead, . . . the plaintiff must establish a deliberate,
intentional act by the supervisor to violate constitutional
rights.” Serna v. Colorado Dep't of Corr.,
455 F.3d 1146, 1151 (10th Cir. 2006) (internal quotation
marks and citations omitted). To demonstrate an affirmative
link between the supervisor and the constitutional violation,
” the plaintiff must satisfy “three related
prongs (1) personal involvement, (2) sufficient causal
connection, and (3) culpable state of mind.” Dodds
v. Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010)
(internal quotation marks and citation omitted). Personal
involvement includes direct personal participation in the
alleged constitutional violation, as well as the creation,
promulgation or “responsibility for the continued
operation of a policy the enforcement (by the
defendant-supervisor or her subordinates) of which
‘subjects, or causes to be subjected' that
plaintiff ‘to the deprivation of any rights . . .
secured by the Constitution . . . .” Id. at
1999 (quoting 42 U.S.C. § 1983)).
Eighth Amendment claim has both an objective
component-whether the deprivation is sufficiently serious-and
a subjective component-whether the official acted with a
sufficiently culpable state of mind.” Perkins v.
Kansas Dep't of Corr., 165 F.3d 803, 809 (10th Cir.
1999). “In cases challenging the conditions of a
prisoner's confinement, the subjective standard is one of
deliberate indifference to inmate health or safety.”
Id. To establish deliberate indifference, the
plaintiff must allege “something more than mere
negligence.” See Farmer v. Brennan, 511 U.S.
825, 835 (1994); see also Estelle v. Gamble, 429
U.S. 97, 106 (1976) (holding that “[m]edical
malpractice does not become a constitutional violation merely
because the victim is a prisoner. In order to state a
cognizable claim, a prisoner must allege acts or omissions
sufficiently harmful to evidence deliberate indifference to
serious medical needs.”). Rather, the plaintiff must
allege that the prison official knew of and disregarded an
excessive risk to inmate health or safety. See
Farmer, 511 U.S. at 837. The prison 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 draw the inference.” Id.
present case, Plaintiff alleges that Defendant Smith violated
his Eighth Amendment right to be free from cruel and unusual
punishment because he failed to install “proper safety
measures, ” such as bed rails and ladders, on the top
bunks at LCCF. [Doc. 1 at 4] Notably, Plaintiff does not
allege that Defendant Smith personally was involved in the
decision to assign Plaintiff to the top bunk of the second
tier or that Defendant Smith was aware of Plaintiff's
housing placement, his age, or his medical conditions.
Rather, Defendant Smith's alleged liability is predicated
on his failure to promulgate and implement a policy requiring
all top bunks at LCCF to have a bed rail and a ladder. The
Court concludes that “the absence of a safety mechanism
on the top bunk in a prison cell at most suggests negligence
and does not give rise to a constitutional claim.”
Brown v. Chester County Prison, No. 16-3097, 2016 WL
3511545, at *2 (E.D. Penn. June 27, 2016) (citing cases)
(unpublished); see also Jones v. County Jail
C.F.C.F., 610 F. App'x 167, 169 (3rd Cir. April 30,
2015) (holding that the failure to provide a ladder for the
top bunk is, at most, “mere negligence” and
“negligence is insufficient to sustain an Eighth
Amendment claim”) (unpublished); McDaniel v.
Walsh, No. 09-2170, 2011 WL 489787, at *5 (C.D. Illinois
Feb. 7, 2011) (holding that “[i]nmates and pretrial
detainees are not constitutionally guaranteed a ladder to an
upper bunk”) (unpublished). Therefore, Plaintiff's
§ 1983 claims against Defendant Smith will be dismissed
without prejudice for failure to state a claim on which
relief may be granted under 28 U.S.C. §§
1915(e)(2)(B)(ii) and 1915A(b).
caption of Plaintiff's complaint names Defendants Lewis,
Bradshaw, and Naegele as defendants, but the body of
Plaintiff's complaint fails to explain how each defendant
personally was involved in the alleged violation of
Plaintiff's constitutional rights. In a § 1983
action against multiple governmental actors, the
plaintiff's 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) (emphasis in original). Thus, “[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.
(emphasis in original; internal quotation marks and citation
omitted). Plaintiff's complaint fails to allege any
specific actions taken by Defendants Lewis, Bradshaw, and
Naegele and, therefore, it fails to state a claim for relief
against these defendants under 42 U.S.C. § 1983.
complaint also appears to seek relief against Centurion
Health Care and the GEO Group, Inc. [See Doc. 1 at 4
(alleging that “Centurion Health Care is at fault for
not having a good and reasonable emergency medical
procedure”); Doc. 1 at 6 (asking for “GEO Group
Inc. to put bed rails and la[dd]ers” on top bunks)].
See Trackwell v. United States Gov't, 472 F.3d
1242, 1243-44 (10th Cir. 2007) (noting that “in a pro
se case when the plaintiff names the wrong defendant in the
caption or when the identity of the defendants is unclear
from the caption, courts may look to the body of the
complaint to determine who the intended and proper defendants
are”). “[A] private actor ‘cannot be held
liable solely because it employs a tortfeasor-or in
other words . . . cannot be held liable under § 1983 on
a respondeat superior theory.” Dubbs v.
Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003)
(quoting Monell v. New York City Dep't of Social
Serv., 436 U.S. 658, 691 (1978)). Rather, “[t]o be
liable, [a private actor] must have had an official . . .
policy of some nature, . . . that was the direct cause or
moving force behind the constitutional violations.”
Id. at 1215 (internal quotation marks and citations
omitted). Plaintiff's complaint fails to allege that
Centurion Health Care or the GEO Group, Inc., had an official
policy or custom that was the direct cause or moving force
behind the alleged constitutional violations and, therefore,
it fails to state a claim on which relief may be granted
under 42 U.S.C. § 1983.
may be able to cure the foregoing deficiencies with more
precise pleading and, therefore, the Court will grant
Plaintiff thirty (30) days in which to file an amended
complaint. Plaintiff's amended complaint must identify
the person or persons responsible for the alleged
constitutional violations and “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 to
timely file an amended complaint may result in the dismissal
of this action without further notice.
THEREFORE ORDERED that Plaintiff's Prisoner's Civil
Rights Complaint [Doc. 1] is DISMISSED without prejudice; and
Plaintiff is granted thirty (30) days from the date of entry
of this Memorandum Opinion and Order in which to file an
FURTHER ORDERED that the Clerk of the Court is directed to
mail to Plaintiff, together with a copy of this Memorandum
Opinion and Order, a ...