The opinion of the court was delivered by: Sam A. Crow U.S. Senior District Judge
This matter is before the court on a civil complaint filed under 42 U.S.C. § 1983 by an inmate confined in a Kansas correctional facility. Having reviewed the record, the court grants plaintiff's motion for leave to proceed in forma pauperis.*fn1
Because plaintiff is a prisoner, the court is required to screen the complaint and to dismiss it or any portion thereof that is frivolous, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant immune from such relief.
28 U.S.C. § 1915A(a) and (b). Although a complaint filed pro se by a party proceeding in forma pauperis must be given a liberal construction, Haines v. Kerner, 404 U.S. 519, 520 (1972), even under this standard a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Plaintiff bears the burden of alleging "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974 (2007). See Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)(stating and applying Twombly standard for dismissing a complaint as stating no claim for relief).
"To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988).
In the present case, plaintiff states he arrived at the Ellsworth Correctional Facility (ECF) on May 10, 2007, and was moved to protective custody following a confrontation with white gang members (ASATRU) the next day. He returned to general population on May 14, with minor disputes with ASATRU occurring daily until May 17, 2007, when he was attacked by ASATRU inmates when the door to his cell was left open. Plaintiff further claims prison staff did not take action to stop the attack, or check on his welfare for twelve hours. Plaintiff states he suffered serious head and neck injuries for which he was examined but no adequate or requested treatment was provided at ECF. Shortly thereafter, plaintiff was transferred to the Hutchinson Correctional Facility (HCF) in Hutchinson, Kansas.
Plaintiff alleges the attack on him resulted from prison staff's failure to follow security procedures in securing the cellhouse pod or stopping the attack, and claims inattention to his medical needs. Plaintiff names the following defendants in both their individual and official capacities: the Kansas Department of Corrections (KDOC); KDOC Secretary Roger Werholtz; ECF Warden Sam Cline; ECF Officers Barsilla, Jefferson, Stroede and the "John Doe" Officer on duty at the time plaintiff was attacked; and inmate Geoffrey Crozier who participated in the attack. Having reviewed the complaint, the court finds it is subject to being summarily dismissed because plaintiff's allegations fail to state a claim upon which relief can be granted under 42 U.S.C. § 1983.
To allege a valid claim under 42 U.S.C. § 1983, plaintiff must assert the denial of a right, privilege or immunity secured by federal law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970). Plaintiff must also provide facts to establish each defendant's personal participation in the alleged deprivation of plaintiff's constitutional rights. Jenkins v. Wood, 81 F.3d 988, 994-95 (10th Cir. 1996).
Acting Under Color of State Law
The court first finds plaintiff's allegations against inmate Crozier are subject to being summarily dismissed because plaintiff provides no factual basis for finding this defendant was a person "acting under color of state law" for the purpose of stating a claim for relief under 42 U.S.C. § 1983. See Barnard v. Young, 720 F.2d 1188, 1188-90 (10th Cir. 1983)("A prerequisite to any relief under § 1983 is that the defendant has acted under color of state law.").
See Beedle v. Wilson, 422 F.3d 1059, 1071 (10th Cir. 2005)(private actor can be held liable under § 1983 only if she was a "willful participant in joint action with the State or its agents")(quoting Dennis v. Sparks, 449 U.S. 24, 27 (1980)).
Next, the court finds plaintiff's claims for damages against KDOC, and against any state official in their official capacity, are barred by the Eleventh Amendment. See Alabama v. Pugh, 438 U.S. 781, 782 (1978)(absent consent, Eleventh Amendment bars suit against a state or state agency); Kentucky v. Graham, 473 U.S. 159, 169 (1985)(Eleventh Amendment immunity protects state officials sued for damages in their official capacity). Also, the Supreme Court has held that neither states nor state officers sued in their official ...