United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court under 28 U.S.C. §
1915(e)(2)(B) and Fed.R.Civ.P. 12(b)(6) on the Amended
Complaint filed November 14, 2016, by Plaintiff, Herbert
Glenn Head. (Doc. 15). The Court determines that the
allegations of Plaintiff's Amended Complaint fail to
state a claim for relief and will dismiss Plaintiff's
and Procedural Background
Glenn Head (Plaintiff) filed this civil action as a
“Writ of Mandamus” on June 15, 2016, alleging
deprivation of his right to adequate medical care. (Doc. 1).
Liberally construing his filing as raising civil rights
claims under 42 U.S.C. § 1983, the Court ordered him to
remedy defects in his original filing. (Doc. 3). Plaintiff
filed his Prisoner's Civil Rights Complaint on June 27,
2016. (Doc. 5). The Court granted him leave to proceed
without prepayment of fees and costs under 28 U.S.C. §
1915, on October 17, 2016. (Doc. 13).
November 1, 2016, the Court entered its Memorandum Opinion
and Order dismissing Plaintiff's Prisoner's Civil
Rights Complaint for failure to state a claim for relief.
(Doc. 14). The Court ruled that Plaintiff's allegations
failed to state any legally sufficient Eighth Amendment claim
for relief under either Fed.R.Civ.P. 12(b)(6), or 28 U.S.C.
§ 1915(e)(2)(B) and dismissed Plaintiff's claims
without prejudice. (Doc. 14 at 6-7). The Court also granted
Plaintiff the opportunity to amend his Complaint to try to
state a viable claim for relief. (Doc. 14 at 7). Plaintiff
filed his Amended Complaint on November 14, 2016. (Doc. 15).
June 27, 2016, Prisoner's Civil Rights Complaint,
Plaintiff claimed that he was being deprived of adequate
medical treatment because the prison physicians were giving
him Motrin 600 mg as a pain medication instead of the pain
medication he was receiving prior to his incarceration,
Emprin 30 mg tablets (a low-dose aspirin). (Doc. 1, Doc. 8 at
2; Doc. 5 at 3, Doc. 8 at 1). In his Amended Complaint,
Plaintiff now identifies Dr. Birdsong as the medical doctor
“who is not providing me with the proper medical
treatment or the proper pain medication.” (Doc. 15 at
1). Plaintiff acknowledges that Dr. Birdsong is giving him
“one Emprin 30 mg/w/codine) at 8:00 a.m. and one at
8:00 p.m.” (Doc. 15 at 1), but now claims “that
this is not the proper medical treatment for my curen [sic]
medical condition.” (Doc. 15 at 1-2). Plaintiff
continues to argue that he is being deprived of any real
medical care because he is not being given “the sound
medical treatment and or medication that I was being given by
all of my other doctors.” (Doc. 15 at 2-3).
Amended Complaint Fails to State a § 1983
is proceeding pro se and in forma pauperis. The
Court may dismiss an in forma pauperis complaint
sua sponte for failure to state a claim upon which
relief may be granted under either Fed.R.Civ.P. 12(b)(6) or
28 U.S.C. § 1915(e)(2)(B). For purposes of Fed.R.Civ.P.
12(b)(6) analysis, the Court must accept all well-pled
factual allegations, but not conclusory, unsupported
allegations, and may not consider matters outside the
pleading. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007); Dunn v. White, 880 F.2d 1188, 1190
(10th Cir. 1989). The court may dismiss a
complaint under Rule 12(b)(6) for failure to state a claim if
“it is ‘patently obvious' that the plaintiff
could not prevail on the facts alleged.” Hall v.
Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991) (quoting
McKinney v. Oklahoma Dep't of Human Services,
925 F.2d 363, 365 (10th Cir. 1991)). A plaintiff must allege
“enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
570. A claim should be dismissed where it is legally or
factually insufficient to state a plausible claim for relief.
Twombly, 550 U.S. at 570.
Court may also dismiss the complaint if the Court concludes
the action fails to state a claim for relief or is frivolous
or malicious. 28 U.S.C. § 915(e)(2)(B)(2). The Court may
pierce the veil of the complaint's factual allegations
and dismiss those claims whose factual contentions are
clearly baseless. Neitzke v. Williams, 490 U.S. 319,
327 (1989); see also Hall, 935 F.2d at 1109. The
authority to “pierce the veil of the complaint's
factual allegations” means that a court is not bound,
as it usually is when making a determination based solely on
the pleadings, to accept without question the truth of the
plaintiff's allegations. Denton v. Hernandez,
504 U.S. 25, 32 (1992). Instead, the Court may go beyond the
pleadings and consider any other materials filed by the
parties, as well as court proceedings subject to judicial
Court liberally construes the factual allegations in a pro se
complaint. See Northington v. Jackson, 973 F.2d
1518, 1520-21 (10th Cir. 1992). However, a pro se
plaintiff's pleadings are judged by the same legal
standards that apply to all litigants and a pro se plaintiff
must abide by the applicable rules of the court. Ogden v.
San Juan County, 32 F.3d 452, 455 (10th Cir.
1994). The Court is not obligated to craft legal theories for
the plaintiff, supply factual allegations to support the
plaintiff's claims, or assume the role of advocate for
the pro se litigant. Hall, 935 F.2d at 1110.
alleges deprivation of adequate medical care. His claim
proceeds as a civil rights claim under 42 U.S.C. § 1983.
See Baker v. McCollan, 443 U.S. 137, 144 n. 3
(1979); Albright v. Oliver, 510 U.S. 266, 271 (1994)
(stating section 1983 is means through which plaintiff may
seek redress for deprivations of rights established in
Constitution). To state a claim for relief under 42 U.S.C.
§ 1983, a plaintiff must assert acts by government
officials acting under color of law that result in a
deprivation of rights secured by the United States
Constitution. 42 U.S.C. § 1983; West v. Atkins,
487 U.S. 42, 48 (1988).
that is not connected to a constitutional violation is not
actionable under Section 1983. See Trask v. Franco,
446 F.3d 1036, 1046 (10th Cir. 2006). A plaintiff
must plead that each government official, through the
official's own individual actions, has violated the
Constitution. Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009). In a Section 1983 action, it is particularly
important that a plaintiff's complaint “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 claim against him or her.” Robbins
v. Oklahoma, 519 F.3d 1242, 1249-50 (10th
Cir. 2008); see also Fogarty v. Gallegos, 523 F.3d
1147, 1162 (10th Cir. 2008).
right of a prisoner to adequate medical care is protected
under the prohibition against cruel and unusual punishments
in the Eighth Amendment. U.S. Const. Amend. VIII. This
prohibition, however, only encompasses deliberate
indifference by prison officials. Howard v. Waide,
534 F.3d 1227, 1235 (10th Cir. 2008) (citing Estelle v.
Gamble, 429 U.S. 97, 105 (1976)). Deliberate
indifference to serious medical needs of prisoners
constitutes the unnecessary and wanton infliction of pain
proscribed by the Eighth Amendment. Estelle, 429
U.S. at 104-05.
the sufficiency of an Eighth Amendment claim for deliberate
indifference involves a two-pronged inquiry, comprised of an
objective component and a subjective component. Self v.
Crum, 439 F.3d 1227, 1230 (10th Cir. 2006);
Kikumura v. Osagie, 461 F.3d 1269, 1291 (10th
Cir.2006). With respect to the objective component, a medical
need is 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.” Ramos v.
Lamm, 639 F.2d 559, 575 (10th Cir. 1980)
(internal quotation and citation omitted). The question is
not limited to whether the inmate's current symptoms
render a medical need sufficiently serious, but it also
extends to whether the potential risk of harm to the inmate
is sufficiently serious. Mata v. Saiz, 427 F.3d 745,
752 (10th Cir. 2005). Although Plaintiff does not
clearly identify his claimed serious medical need in this
case, the Court will treat his allegations of chronic pain as
a serious medical need for purposes of the objective
component of the Eighth Amendment analysis.
subjective component requires that the named defendant have a
sufficiently culpable state of mind. Farmer v.
Brennan, 511 U.S. 825, 834 (1994); see also
Self, 439 F.3d at 1230-31. The plaintiff must establish
that the defendant knew the plaintiff faced a substantial
risk of harm and disregarded that risk, by failing to take
reasonable measures to abate it. Hunt v. Uphoff, 199
F.3d 1220, 1224 (10th Cir.1999) (internal citation and
quotation omitted). The question for consideration by the
Court is: “were the symptoms such that a prison
employee knew the risk to the prisoner and chose (recklessly)
to disregard it?” Martinez v. Beggs, 563 F.3d
1082, 1089 (10th Cir. 2009) (quoting Mata, 427 F.3d