Harold Nance v. Walter C. Kelly, Superintendent, Attica Correctional Facility
912 F.2d 605
2d Cir.
1990
Check Treatment

*1 cussing availability departure of such a addition, during In provided to Davis.

was hearing, the January court Davis’ counsel address “at

quested that announcing category V.” After

least YI, apply Category

decision op- again provided Davis’ counsel was

portunity to address what sentence Thus, adequately

appropriate. Davis was safeguards to

provided he is entitled.

CONCLUSION each of defendants-

We have examined remaining arguments and find

appellants’ light merit.

them to be without

foregoing, judgments we affirm the NANCE, Appellant,

Harold KELLY, Superintendent, Atti-

Walter C. Facility, Appellee.

ca Correctional Docket 89-2310.

Submitted Nance, se. *2 OAKES, Judge, Chief the action is frivolous or malicious.” Before LEVAL, 1915(d). Judge, and District § Williams, 319, 1827, Judge.1 490 U.S. 109 S.Ct. (1989), Supreme L.Ed.2d 338 PER CURIAM: explained the two instances which a dis- se, 19, Nance, pro appeals June may complaint pursu- trict court dismiss a Dis- judgment of the United States First, 1915(d). may ant to section it dis- trict the Western District New Court for miss when the “factual contentions are York, Curtin, Judge, dismissing his John T. baseless,” allegations clearly such as when sponte under 28 sua complaint U.S.C. Id. product fantasy. are the of delusion or 1915(d) (1988). complaint Nance’s seeks § Or, second, may at it dis- 109 S.Ct. (1982) pursuant relief U.S.C. § miss when the claim is “based on an indis- Superintendent against Kelly, the Walter Id. putably legal theory.” Facility, in connec- of Attica Correctional Neitzke stressed that the showing violations alleged constitutional tion with plaintiff must make to establish that a com at Attica. during imprisonment Nance’s plaint indisputably is not “based on an mer- and remand. We reverse legal theory” itless is not the same as one pau- complaint Nance filed necessary to withstand a motion to dismiss peris. complaint consisted of handwrit- His upon failure to state a claim for printed “Form to be responses to a ten may granted relief be under Federal Rule Filing Complaint Under the Civil Used in id. at 12(b)(6). See Procedure Civil 1983,” Act, which was Rights 42 U.S.C. § The district 1832-33. court’s role ensur court. Under the supplied by the district ing pauperis complaint that an in forma heading asking for the “Statement replace non-frivolous is meant to the role wrote, Claim,” Wrong- “Plaintiff is played by filing court costs and fees in being deprived Intentionally fully and See id. deterring complaints. frivolous Rights By being his Constitutional Accordingly, a district court should Medically Orthopedical- Properly. Treated forgiving eye a far more look with exam Foot, Under the head- ly For Problems.” ining whether a rests on a merit- followed, asking for the relief legal theory purposes for less of section added, “Proper Medical quested, Nance 1915(d) testing than it does in After Care. Treatments. Persistant By way a Rule for Mistreat- Mone[ta]ry Compensations illustration, the Court noted that claims in $2,000.” Prior to the damages ments clearly which the defendants are immune court ruled the district defendant's seeking or from suit claims redress for a failing requisite factual to make non-existent interest would be exam allegations concerning the time and ples of claims which would considered be violations, and any alleged indisputably meritless and dis Kelly allege that defendant had failing to 1915(d). See id. missed under section involvement any personal knowledge or violations, significant We believe there is a dif upon a claim failed to state type ference of claims the between may granted. On this ba- which relief Court sanctioned Neitzke subject sponte sis, sua dismissed 1915(d) section dismissal under Nance’s as friv- complaint, prejudice, without complaint. Reading Nance’s se com meaning of 28 U.S.C. olous within the must, see Haines plaint broadly, as we 1915(d). Upon plaintiff’s failure to file Kerner, 519, 520-21, complaint, an amended the district court 595-96, (1972), his claim dismissed the action. deliberately that he was claim of cruel may treatment states A district court dismiss Eighth in forma “if satisfied and unusual case filed York, sitting by designation. 1. Of the Southern District of New Gamble, 104 L.Ed.2d 338 Estelle v. Amendment. U.S. court, (1976). According to the First, majority concludes it lacked complaint failed Nance’s deliberately allegation that he was *3 of the and to the time details cogniza- treatment states a Kelly’s role them. and events relevant of cruel and unusual ble claim contrast, examples furnished two By the join I eighth amendment. cannot a lack solely from did not suffer the a the level of in that To sink to conclusion. rather, details; they requisite pleading of medical prison’s violation a not rights plainly sought assert do to only “de- must not constitute mistreatment exist. indifference”, but indifference liberate need”. Es- a “serious medical must be to an in that once forma conclude We Gamble, v. telle claim, cognizable raises a plaintiff pauperis it 50 may not dismiss a district deprivation a of sore feet and 1915(d), the even if under section by the does orthopedic sneakers defendant all of the flesh out complaint does not meet standard. not this long as the forma So details. requisite claim, raises a pauperis plaintiff requirement medical need” The “serious factual deficien on the basis dismissal urgency, one contemplates a condition the wait until complaint must in the cies death, degeneration, or may produce such details lack of attacks the defendant Dutcher, 733 Archer v. pain. extreme v. See Wilson on a Rule (2d Cir.1984) (“extreme 14, 16-17 F.2d (3d Rackmill, Cir. 774-75 F.2d 878 Ward, 52 pain”); Todaro v. with state facts 1989) failure to (identifying Cir.1977) linger- and (“physical torture problem more as “a specificity requisite conditions which death”). types The 12(b)(6)”). Rule under addressed the constitutional held to meet have been predi a 12(b)(6)motion as Rule Requiring a include serious medical need standard of the basis factual on for dismissal cate tumor, Neitzke, 1827; bro- brain the forma guarantees deficiencies Coughlin, v. hip, Hathaway pins ken of cer benefit plaintiff will have pauperis (2d Cir.1988); premature re- 841 F.2d 48 protections, fundamental tain Kelsey Ew- v. surgery, to turn alleged deficiencies as notice such Cir.1981); (8th diabetes 4 ing, opportunity refine complaint and an Harris, diet, v. Johnson special requiring Neitzke, 109 deficiencies, see alleged those bleeding (S.D.N.Y.1979); a F.Supp. 479 333 dismissal. to avoid so as S.Ct. Hutto, (8th 45 Massey v. ulcer, F.2d 545 v. ear, appeal defend this Cir.1976); loss of an Kelly has refused and Cir.1974) (claim properly was never F.2d 541 grounds that he 508 on away Because threw complaint. a doctor who with stated served up stump). prior ear and stitched prisoner’s court dismissed district no have basis an we filing of to the resembling foregoing seri Far from and argument this to address feet Nance’s sore problems, ous medical on it. opinion express no accordingly orthopedic sneakers need for and remanded. conditions analogous Cause to those Judgment reversed. more the constitu to fall short of have been Judge C. GEORGE standard, pin set as a broken such tional (dissenting): v. House shoulder, Wood ting injured Cir.1990); (9th mild 1332 wright, 900 F.2d the affirm We should dissent. I Lewis, v. Jones jaw, broken concussion of this dismissal wise judge’s Cir.1989); kidney (6th 1125 under States, v. United stone, Hutchinson on claim is based symptoms, (9th cold F.2d 390 one, “indisputably but two (7th Cir. McEvers, F.2d 95 Williams, 490 U.S. Gibson theories].” Colman, headaches, 1980); Dickson v. (5th); denied, 439 U.S. Arbitration between cert. In the Matter of an

F.2d 1310 PRINTING, INC., (1978); a bro HARRY HOFFMAN (Ward Burns, Inc.), Holling Pol- Joyce, Press finger, Rodriguez ken Printing Corporation, Manhardt- toothache, lack (D.Me.1988); Tyler F.Supp. 1250 Thorner-Sidney Press, Alexander, Inc., (E.D.Pa.1984); F.Supp. 268 Rapone, 603 Services, Inc., Inc., Kenworthy Graphic Wilson, Glasper v. problems”, or “bowel Co., Inc., constituting Savage Litho (W.D.N.Y.1982). F.Supp. 13 and exclusive members the sole Second, if Nance’s met the even sore feet Group, Negotiating Petitioners- Litho standard, it is inconceivable Appellants, *4 against the sustain this action he could he has named: Walter C. only defendant COMMUNICATIONS, INTER- GRAPHIC superintendent Kelly, who is (for- UNION, LOCAL NATIONAL prerequisite confined. A where merly Graphic Arts International Un- involve- “personal 1983 claim is for a § 261), ion, Respondent-Appellee. Local con- by the defendant ment” 1399, Docket 89-9102. deprivation. Williams stitutional Cir.1986). Smith, any fail to make only does Nance Not him, Kelly knew of knew of allegation that Argued feet, the denial of sore or knew of shoes, suggest any orthopedic he fails to Kelly might

other basis one that than the insufficient

liable other charge prison.

he was in See Gill (2d Cir.1987);

Mooney, 824 Neitzke, 109 S.Ct. at see also

1829 n. 2. extra, simply adds useless

Reversal here to the work of the district

burdens case, result of this

The inevitable time, lawyer’s paperwork,

additional required in the district court

court time reversal, dismissal. The district

our will be recognized this when he dismissed

judge affirm his and we should

under §

wise, decision. practical