Filed: May 21, 2018
Latest Update: Mar. 03, 2020
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT May 21, 2018 _ Elisabeth A. Shumaker Clerk of Court BONIFACE W. WABUYABO, Plaintiff - Appellant, No. 18-3017 v. (D.C. No. 5:17-CV-03173-SAC) (D. Kan.) CORRECT CARE SOLUTIONS, Defendant - Appellee. _ ORDER AND JUDGMENT* _ Before BRISCOE, MATHESON, and EID, Circuit Judges. _ Boniface Wabuyabo, a Kansas state inmate appearing pro se,1 appeals the district court’s dismissal of his 42 U.S.C. § 1983
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT May 21, 2018 _ Elisabeth A. Shumaker Clerk of Court BONIFACE W. WABUYABO, Plaintiff - Appellant, No. 18-3017 v. (D.C. No. 5:17-CV-03173-SAC) (D. Kan.) CORRECT CARE SOLUTIONS, Defendant - Appellee. _ ORDER AND JUDGMENT* _ Before BRISCOE, MATHESON, and EID, Circuit Judges. _ Boniface Wabuyabo, a Kansas state inmate appearing pro se,1 appeals the district court’s dismissal of his 42 U.S.C. § 1983 ..
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 21, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
BONIFACE W. WABUYABO,
Plaintiff - Appellant,
No. 18-3017
v. (D.C. No. 5:17-CV-03173-SAC)
(D. Kan.)
CORRECT CARE SOLUTIONS,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, MATHESON, and EID, Circuit Judges.
_________________________________
Boniface Wabuyabo, a Kansas state inmate appearing pro se,1 appeals the district
court’s dismissal of his 42 U.S.C. § 1983 amended complaint concerning his medical
treatment by Correct Care Solutions (“CCS”). Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm.
I. BACKGROUND
Mr. Wabuyabo, an inmate at Johnson County Adult Detention Center (“JCADC”),
filed a pro se complaint against CCS, the health care provider at JCADC. In his
*
This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
Because Mr. Wabuyabo proceeds pro se, we construe his filings liberally, see
Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010), but we do not craft
arguments or otherwise advocate for him, see Yang v. Archuleta,
525 F.3d 925, 927
n.1 (10th Cir. 2008).
complaint, he described a “different case” against Rose Aliuba and the Kansas
Department of Children and Families (“DCF”). ROA at 8. The district court instructed
Mr. Wabuyabo to file a new complaint because he improperly joined unrelated claims
against different defendants.
Mr. Wabuyabo filed an amended complaint. He alleged that, after falling from his
top bunk at JCADC, he received an x-ray and a CT scan but no treatment to relieve his
pain. He further alleged CCS concealed his health information and “abused and
neglected [his] rights to seek medical help.” Id. at 19. Mr. Wabuyabo claimed his “life is
still endangered and still under painful conditions.”
Id. He also attached a letter
repeating his allegations against Ms. Aliuba and the DCF.
The district court screened the complaint under 28 U.S.C. § 1915A to determine
whether it was “frivolous, malicious, or fail[ed] to state a claim upon which relief may be
granted.” Id. at 26. It assumed Mr. Wabuyabo was attempting to allege a violation of his
Eighth Amendment right against cruel and unusual punishment, and appeared to assume
that CCS was a contractor acting under color of state law. The court said Mr. Wabuyabo
needed to allege facts to show the “existence of a . . . policy or custom” and “that there is
a direct causal link between the policy or custom and the injury alleged.”
Id. at 29
(quoting Hinton v. City of Elwood,
997 F.2d 774, 782 (10th Cir. 1993)).
The district court found Mr. Wabuyabo had failed “to allege facts plausibly
identifying an official custom or policy that violated his constitutional rights against cruel
and unusual punishment,” and directed him to “show cause why his amended complaint
2
should not be summarily dismissed as stating no claim for relief against defendant CCS.”
Id. at 30. The court did not consider the attached letter as part of the amended complaint.
In response, Mr. Wabuyabo said CCS had committed cruel and unusual
punishment “because they identified the problem and vowed not to handle it.” Id. at 37.
He also alleged CCS had “abused [and] neglected” him and “contributed to a worsening
health condition.”
Id. at 46. He said he feared retaliation from the CCS staff.
Id. at 47.
The district court said Mr. Wabuyabo still had not alleged a policy or custom or
“describe[d] an intentional or reckless indifference to [Mr. Wabuyabo’s] condition.” Id.
at 53-54. Instead, he described “a disagreement over the course of treatment prescribed
and how such treatment is delivered,” which was “insufficient to state an Eighth
Amendment claim.”
Id. at 53. The court concluded the “amended complaint should be
dismissed without prejudice for failure to state a claim.”
Id. at 54. It granted leave to
appeal in forma pauperis (“ifp”). Mr. Wabuyabo timely appealed.
II. DISCUSSION
Under 28 U.S.C. § 1915A, “[t]he court shall review . . . a complaint in a civil
action in which a prisoner seeks redress from a government entity,” and dismiss the
complaint before service on the defendant if it “is frivolous, malicious, or fails to
state a claim upon which relief may be granted.” 28 U.S.C. § 1915A. We review a
dismissal for failure to state a claim de novo. Young v. Davis, 554 F.3d 1254, 1256
(10th Cir. 2009).
To determine whether a complaint has failed to state a claim, “[w]e review the
complaint for plausibility; that is, to determine whether the complaint includes
3
enough facts to state a claim to relief that is plausible on its face.” Id. (quotations
omitted); see also Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009); Bell Atlantic Corp. v.
Twombly,
550 U.S. 544, 556 (2007).
Under § 1983, the plaintiff must show (1) the deprivation of a federally
protected right by (2) an actor acting under color of state law. Schaffer v. Salt Lake
City Corp., 814 F.3d 1151, 1155 (10th Cir. 2016). We will assume that CCS was
acting under color of state law when it provided medical services to Mr. Wabuyabo.
See Craft v. Middleton, 524 F. App’x 395, 397 n.3 (10th Cir. 2013) (unpublished)
(assuming for sake of analysis that defendants were state actors). As the district
court noted, to state a claim against CCS, Mr. Wabuyabo must identify an official
policy or custom that led to the alleged constitutional violation. See Dubbs v. Head
Start, Inc.,
336 F.3d 1194, 1216 (10th Cir. 2003) (extending the rule in Monell v.
New York City Department of Social Services.,
436 U.S. 658 (1978), to private
entities acting under color of state law).
Mr. Wabuyabo has not alleged facts that suggest CCS has an official policy or
custom that could have caused the alleged constitutional violation. See Dubbs, 336 F.3d
at 1216. We therefore affirm for substantially the same reasons provided by the district
court.
III. CONCLUSION
We affirm the district court’s dismissal of the action for failure to state a
claim. We also deny as moot Mr. Wabuyabo’s motion of May 7, 2018, requesting
“an injunction or declaratory order for Plaintiff’s treatment.” Doc. 10556917 at 1.
4
The district court’s dismissal under 28 U.S.C. § 1915A(b)(1) constituted a first
“strike” under 28 U.S.C. § 1915(g). Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172,
1175 (10th Cir. 2011). Because this appeal also is frivolous, we impose a second
“strike” under § 1915(g). See Davis v. Kan. Dep’t of Corr.,
507 F.3d 1246, 1249
(10th Cir. 2007).
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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