Opinion
Docket No. 1:06 CV 369, Section P.
May 11, 2006
MEMORANDUM ORDER
Before the Court is a civil rights complaint filed pursuant to 42 U.S.C. § 1983 by pro se Plaintiff, Curtis L. Smith ("Plaintiff"). [Rec. Doc. 1]. Plaintiff was granted permission to proceed in forma pauperis on March 27, 2006. [Rec. Doc. 4]. Plaintiff is currently incarcerated at the Plaintiff is currently confined at Avoyelles Correctional Center in Cottonport, Louisiana ("ACC"). This complaint was originally filed in the Middle District of Louisiana. [Rec. Docket Sheet] The complaint was transferred to this Court on February 24, 2006.
Plaintiff alleges the defendants were deliberately indifferent to his serious medical needs in violation of he constitutional rights.
At this time the Court is unable to proceed on Plaintiff's claim without more information. Plaintiff has been granted permission to proceed in forma pauperis in the instant action, therefore, his complaint is subject to the screening provisions established in 28 U.S.C. § 1915(e). Accordingly, in order to determine if is his civil rights claim is actionable, he should amend to provide this court with more information. See Talib v. Gilley, 138 F.3d 211 (5th Cir. 1998) (allowing the use of questionnaires or an evidentiary hearing in order to aid a court in the determination if an in forma pauperis complaint is frivolous).
To state a claim under 42 U.S.C. § 1983, a plaintiff must: (1) allege a violation of a right secured by the constitution or the laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under the color of state law. Randolph v. Cervantes 130 F.3d 727 (5th Cir. 1997); Pitrowski v. City of Houston, 51 F.3d 512 (5th Cir. 1995). Section 1983 complainants must support their claims with specific facts demonstrating a constitutional deprivation and may not simply rely on conclusive allegations. See Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995); Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir. 1986). Plaintiff's conclusive allegations, without more, do not sufficiently meet the above requirements.
Furthermore, Rule 8 of the Federal Rules of Civil Procedure does not require explicit detail, but it does require a plaintiff to allege specific facts which support the conclusion that his constitutional rights were violated by each person who is named as a defendant. This conclusion must be supported by specific factual allegations stating the following:
(1) the name(s) of each person who allegedly violated plaintiff's constitutional rights;
(2) a description of what actually occurred or what each defendant did to violate plaintiff's rights;
(3) the place and date(s) that the event occurred; and
(4) a description of the alleged injury;
In addition, in order to successfully plead a claim for damages under § 1983 for inadequate medical care, Plaintiff must allege facts that support a finding that each named defendant was deliberately indifferent to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (emphasis added). The United States Fifth Circuit has defined deliberate indifference as encompassing only the unnecessary and wanton infliction of pain repugnant to the conscience of mankind.McCormick v. Stadler, 105 F.3d 1059 (5th Cir. 1997);Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997). Moreover, deliberate indifference is a legal conclusion which must rest upon facts evidencing wanton actions on the part of each defendant (reckless disregard of plaintiff's rights).Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1992). Accordingly, Plaintiff must demonstrate that each defendant knew of and disregarded an excessive risk to his health or safety.Stewart v. Murphy, 174 F.3d 530, 537 (5th Cir. 1999). The official must have had actual knowledge of the alleged risk; allegations that the official should have known about the risk are insufficient. Olabisiomotosho v. City of Houston, 185 F.3d 521, 527-28 (5th Cir. 1999).
Thus, Plaintiff shall amend his complaint and provide the following information, including documentary evidence if feasible, to the Court.
(1) A full explanation of the medical condition about which you are complaining;
(2) What is your current diagnosis?
(3) When and by whom were you first diagnosed with this medical condition?
(4) Describe the physical therapy you used to receive for the condition involved in this suit? Please include any documentation related to the physical therapy.
(5) When did the physical therapy treatment begin and end? Give dates. Please describe who determined the therapy would be terminated, the date, and the facility where that person is employed.
(6) Please describe ANY medical treatment or medicines you have received since the physical therapy ended.
(7) List all occasions you have been seen by medical personnel.
(8) Does you medical condition interfere with your normal activities? Please Explain.
(9) The date you entered or transferred to USP Pollock.
Furthermore, insofar as the Plaintiff has named any of the defendants in a supervisory capacity, it is well settled that supervisory officials may not be held liable under § 1983 under the doctrine of respondeat superior. See Mouille v. City of Live Oak, 977 F.2d 924 (5th Cir. 1992), cert. denied, 508 U.S. 951, 113 S.Ct. 2443, 124 L.Ed.2d 660 (1993); Jennings v. Joshua Independent School District, 877 F.2d 313 (5th Cir. 1989), cert. denied, 496 U.S. 935, 110 S.Ct. 3212, 119 L.Ed.2d 226 (1990). To be liable under § 1983, a supervisory official must be personally involved in the act causing the alleged constitutional deprivation, or must have implemented a policy so deficient that the policy itself acts as a deprivation. Id. (emphasis added).
Before this court determines the proper disposition of Plaintiff's claims, Plaintiff should be given the opportunity to remedy the deficiencies of his complaint. Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
Accordingly,
IT IS ORDERED that plaintiff amend his complaint within thirty (30) days of the filing of this order to cure the deficiencies as outlined above, and alternatively, dismiss those claims plaintiff is unable to cure through amendment. The amendment should not exceed five (5) typewritten or ten (10) handwritten pages. IT IS FURTHER ORDERED that within thirty (30) days of service of this order, plaintiff provide this court with documentary proof that he exhausted ALL administrative remedies in connection with the claims asserted herein and responses, provided by the proper parties, thereto.
Failure to comply with this order shall result in dismissal of this action under Rule 41(b) or 16(f) of the Federal Rules of Civil Procedure. Plaintiff is further required to notify the Court of any change in his address pursuant to LR 41.3W. THUS DONE AND SIGNED in Chambers at Alexandria, Louisiana, this 11th day of May, 2006.