United States District Court, D. New Mexico
AMENDED MEMORANDUM OPINION AND ORDER
matter comes before the Court upon Plaintiff's Prisoner
Civil Rights Complaint (Complaint), filed June 20, 2017.
(Doc. 1). Also before the Court are Plaintiff's motions
asking the Court to grant the requested relief and/or compel
Defendants to file answers to the Complaint. (Docs. 7 and 8).
Plaintiff is incarcerated, appears pro se, and is
proceeding in forma pauperis. Having reviewed the
matter sua sponte under 28 U.S.C. § 1915, the
Court will deny the motions, dismiss the Complaint without
prejudice, and grant leave to amend.
case, Plaintiff argues four medical providers and one
grievance officer at the Penitentiary of New Mexico (PNM)
violated his constitutional rights. (Doc. 1) at 3-4. His
medical issues date back to at least 2010, when he was
diagnosed with degenerative joint disease and osteoarthritis
in his right knee. Id. at 5. Plaintiff also has a
bullet lodged in his left thigh, which causes nerve pain.
point Morales sought medical care from prison physicians
Aimee, Aires, Stevens, and Martinez. (Doc. 1) at 5-10. He is
dissatisfied with the care he received, although the details
are unclear. Id. Dr. Aimee suggested Plaintiff was
experiencing an anxiety attack, but he disagrees.
Id. at 13. He further contends he has not received
pain medication in the morning since September 2016.
Id. at 6. Plaintiff is required to complete a
“sick call slip” when he wants more pain
medication, but those requests often go unanswered.
Id. at 8-9. The physicians also make Plaintiff
explain his issues at each visit even though “they
already know [his] medical problems.” Id. at
9. Plaintiff attempted to exhaust his administrative remedies
through an informal grievance, but Grievance Officer Boyer
allegedly thwarted his efforts. Id. at 15-17.
filed the Complaint on June 20, 2017. The Complaint names
Lianna Lopez, PNM's Director of Nursing; M.D. Aires; M.D.
Aimee; M.D. Martinez, and Michelle Boyer, PNM's Grievance
Officer. (Doc. 1) at 3-4. Plaintiff raises an Eighth
Amendment claim for deliberate indifference to medical needs.
Id. at 22. As an apparent attempt to satisfy the
exhaustion requirement, Plaintiff also raises a
“claim” that his informal grievance proceeding
did not comport with due process requirements. Id.
at 15. Plaintiff seeks compensatory and punitive damages,
plus an injunction ordering Defendants to dispense pain
medication and refer him to an outside orthopedic specialist
and a neurologist. Id. at 27-28.
Standards Governing Sua Sponte Review
Court has discretion to dismiss an in forma pauperis
complaint sua sponte under 28 U.S.C. §
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.” The Court may also
dismiss a complaint sua sponte under Rule 12(b)(6)
if “it is patently obvious that the plaintiff could not
prevail on the facts alleged, and allowing [plaintiff] an
opportunity to amend [the] complaint would be futile.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991) (quotations omitted). The plaintiff must 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 a cause of action and conclusory
allegations, without more, do not suffice. Id.
Plaintiff is pro se, his “pleadings are to be
construed liberally and held to a less stringent standard
than formal pleadings drafted by lawyers.”
Hall, 935 F.2d at 1110. 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,
… confusion of various legal theories, … poor
syntax and sentence construction, or … 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.
cause of action under section 1983 requires the deprivation
of a civil right by a ‘person' acting under color
of state law.” McLaughlin v. Bd. of Trustees,
215 F.3d 1168, 1172 (10th Cir. 2000). The plaintiff must
allege that each government official, through the
official's own individual actions, has personally
violated the Constitution. See Trask v. Franco, 446
F.3d 1036, 1046 (10th Cir. 1998). There must also be a
connection between the official conduct and the
constitutional violation. Fogarty v. Gallegos, 523
F.3d 1147, 1162 (10th Cir. 2008); Trask, 446 F.3d at
complaint does not meet this standard, for two reasons.
First, most allegations use the passive voice, and it is
unclear how each physician Defendant allegedly provided
inadequate care. Grievance Officer Boyer's wrongdoing is
also unclear. Plaintiff alleges Boyer returned certain forms
to him, but such action, without more, does not evidence a
due process violation. To survive initial review, a Section
1983 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 claim
against him or her.” Robbins v. Oklahoma, 519
F.3d 1242, 1249-50 (10th Cir. 2008) (emphasis in the
the alleged wrongdoers were more clearly identified, the
factual allegations are insufficient to state an Eighth
Amendment claim for deliberate indifference to medical needs.
To demonstrate deliberate indifference, a medical need must
be objectively serious. It must have “been diagnosed by
a physician as mandating treatment or … so obvious
that even a lay person would easily recognize the necessity
for a doctor's attention.” Oxendine v.
Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001). A
complaint must also satisfy the subjective component of the
test by alleging the defendants “kn[e]w of and
disregarded an excessive risk to health or safety.”
Farmer v. Brennan, 511 U.S. 825, 847 (1994). The
allegations here reflect Plaintiff disagrees with medical
staff about the proper course of treatment, including his
pain medication dosages. However, such differences in opinion
do not satisfy the objective prong of the Eighth Amendment
test. See Perkins v. Kan. Dep't of Corr., 165
F.3d 803, 811 (10th Cir. 1999) (“When a prisoner
“simply disagrees with medical staff about the course
of ... treatment, ” the “disagreement does not
give rise to a claim for deliberate indifference to serious
medical needs.”); Todd v. Bigelow, 497 Fed.
App'x. 839, 842 (10th Cir. 2012) (A “difference of
opinion with the medical staff as to the optimal
pain-management regimen does not amount to deliberate
indifference.”). Plaintiff has also failed to allege
any facts suggesting Defendants consciously disregarded an
excessive risk of harm.
foregoing reasons, the Court will dismiss the Complaint
without prejudice for failure to state a cognizable claim for
relief. The Court will also deny Plaintiffs motions asking
the Court to grant the requested relief and/or compel
Defendants to file answers. (Docs. 7 and 8). Plaintiff may
file an amended complaint within 30 days of entry of this
order. Any amended complaint should clarify whether Plaintiff
intends to file a separate due process claim regarding the
grievance process or whether Plaintiff is simply alleging
compliance with the exhaustion requirement. If Plaintiff
declines to timely file ...