United States District Court, D. Colorado
AMENDED ORDER OF DISMISSAL
LEWIS T. BABCOCK Senior Judge, United States
This Amended Order of Dismissal corrects the Order of Dismissal (ECF No. 9) entered on September 29, 2015 because the September 29 order stated that “the Complaint and this action are DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B), 28 U.S.C. § 1915A and/or 42 U.S.C.A. § 1997e .” The Complaint and this action should have been dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b) for failure to prosecute and failure to comply with the Court’s order and pursuant to 28 U.S.C. § 1915(e)(2)(B), for failure to state a claim upon which relief may be granted. The instant order is otherwise identical to the dismissal order entered on September 29.
Plaintiff, Paul Gonzales, currently is in the custody of the Colorado Department of Corrections at the Sterling Correctional Facility. He was transferred there from the El Paso County Sheriff’s Department sometime last year. Plaintiff initiated this action by filing pro se a Prisoner Complaint pursuant to 42 U.S.C. § 1983 and a Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. Plaintiff has been granted leave to proceed IFP pursuant to § 1915 (ECF No. 6). On August 13, 2015, the Court ordered Plaintiff to show cause why his complaint should not be dismissed for failure to state a claim (ECF No. 7). Plaintiff has failed to respond to the Court’s Order.
A. Mandatory Screening and Standards of Review
In 1996, Congress significantly amended Title 28 of the United States Code, section 1915, which establishes the criteria for allowing an action to proceed in forma pauperis (IFP), i.e., without prepayment of costs. Section 1915(e) (as amended) requires the federal courts to review complaints filed by persons that are proceeding in forma pauperis and to dismiss, at any time, any action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). See Creamer v. Kelly, 599 F. App’x 336 (10th Cir. 2015) (“Under §§ 1915(e)(2)(B)(i) and (ii), a court must screen a complaint filed IFP and dismiss the case at any time if the court determines that the action or appeal is frivolous or malicious or fails to state a claim on which relief may be granted.”) (internal quotation and citation mitted).
In addition, 28 U.S.C. § 1915A, entitled “Screening, ” requires the court to review complaints filed by prisoners seeking redress from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). If the complaint is “frivolous, malicious, or fails to state a claim upon which relief can be granted, ” or “seeks monetary relief from a defendant who is immune from such relief, ” the court must dismiss the complaint. 28 U.S.C. § 1915A(b).
Further, the Civil Rights of Institutionalized Persons Act, 42 U.S.C.A. § 1997e requires the court “on its own motion or on the motion of a party” to dismiss any action brought by a prisoner with respect to prison conditions under 42 U.S.C. § 1983 if the action is “frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief.” See 42 U.S.C. § 1997e(c)(1).
Plaintiff is considered a “prisoner” as that term is defined under the PLRA, see 28 U.S.C. §§ 1915(h); 1915A(c), and he has been granted leave to proceed IFP in this action (ECF No. 46. Moreover, Defendants are employees of a governmental entity. In addition, he is complaining about the conditions of his confinement. Thus, his Complaint must be reviewed under the authority set forth above.
In reviewing complaints under these statutory provisions, a viable complaint must include “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 556 (2007) (rejecting the traditional standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The question to be resolved is: whether, taking the factual allegations of the complaint, which are not contradicted by the exhibits and matters of which judicial notice may be had, and taking all reasonable inferences to be drawn from those uncontradicted factual allegations of the complaint, are the "factual allegations ... enough to raise a right to relief above the speculative level, ... on the assumption that all the allegations in the complaint are true even if doubtful in fact[.]" Bell Atlantic Corp., 550 U.S. at 555. When reviewing a complaint for failure to state a claim, the Court may also consider documents attached to the complaint as exhibits. Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (internal citation omitted). Moreover, a legally frivolous claim is one in which the plaintiff asserts the violation of a legal interest that clearly does not exist or asserts facts that do not support an arguable claim. Neitzke v. Williams, 490 U.S. 319, 324 (1989). See also Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (holding that a court may dismiss a claim as factually frivolous if the facts alleged are clearly baseless, a category encompassing allegations that are fanciful, fantastic, and delusional). When reviewing a complaint for failure to state a claim, the Court may also consider documents attached to the complaint as exhibits. Hall v. Bellmon, 935 F.2d 1106, 1112 (10th Cir. 1991) ("A written document that is attached to the complaint as an exhibit is considered part of the complaint and may be considered in a Rule 12(b)(6) dismissal.").
The Court must construe the Complaint liberally because Plaintiff is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). If a complaint reasonably can be read “to state a valid claim on which the plaintiff could prevail, [a court] 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.” Hall, 935 F.2d at 1110. However, a court should not act as a pro se litigant’s advocate. See Id. Sua sponte dismissal is proper when it is patently obvious that plaintiff could not prevail on the facts alleged and it would be futile to allow the plaintiff to amend. Andrews v. Heaton, 483 F.3d 1070, 1074 (10th Cir. 2007); Curley v. Perry, 246 F.3d 1278, 1281-82 (10th Cir. 2001) (internal quotations omitted).
B. Plaintiff’s Allegations
On September, 2014, Plaintiff was in the Colorado Springs Criminal Justice Center (CSCJC) and received a letter from a Gastrointestinal Specialist informing him that he had tested positive for "Helicobacter Pylori" (know as "H"). Initially, Plaintiff was arrested on January 23, 2014, and taken to CSCJC where he was rejected entry by the Sheriff and, instead, was sent to Memorial Hospital in Colorado Springs. A blood test revealed that Plaintiff’s ammonia and enzyme levels were high, which was the reason why he was delusional and unresponsive. Doctors and nurses at Memorial Hospital said Plaintiff needed to stop doing drugs because he had sclerosis of the liver. Plaintiff was discharged from the hospital and transported to CSCJC on January 25, 2014, and was booked in.
In mid-February, Plaintiff requested to be seen by the CSCJC medical staff due to stomach pain. Plaintiff was told his stomach pain was probably from gas or bloating and was prescribed medication; blood also was withdrawn. Plaintiff kept experiencing stomach pain and noticed that his stomach was expanding in size. He was told the reason his stomach was in pain was because of the sclerosis and he was advised to keep taking his medication.
From February to September, 2014, Plaintiff continued to experience stomach related pain and continued to make requests to CSCJC medical for treatment. During this time span, he went to Memorial Hospital about four times, including one surgery to remove his gallbladder. During his hospital visit for the removal of his gallbladder, a G.I. specialist asked if he could take a sample from the inside of Plaintiff’s stomach. After his surgery, Jail officials put him back into the prisoner population. Immediately after, his ...