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Porter v. Ross

United States District Court, Tenth Circuit

January 28, 2014

Michael Allen Porter, Plaintiff,
v.
(FNU) Ross, Defendant.

MEMORANDUM AND ORDER

J. THOMAS MARTEN, JUDGE

Plaintiff Michael Allen Porter filed his complaint on January 8, 2013, alleging violations of his constitutional rights. On December 30, 2013, defendant Ross filed a Motion to Dismiss (Dkt. 20), which has been fully briefed and is currently before the court.

I. Background

Porter’s complaint alleges the following facts. On or about December 17, 2012, Porter was being released from his cell in the Jackson County Jail before his transfer to the county courthouse for a hearing. Defendant Ross, a corrections officer at the jail, was assigned to secure Porter for his transfer. Ross placed Porter in handcuffs and belly chains before taking him to the booking area.

Once they arrived, Ross asked Porter to lift his leg so Ross could place leg shackles on him. After raising his leg, Porter told Ross he had a painful cut on his leg and lowered his leg back down. Ross tried to force Porter’s leg up once again, but Porter brought it down again because he was losing his balance. Porter told Ross he would not need to force Porter’s leg into the air, but Ross grabbed Porter’s clothes in an attempt to turn him around. As a result, the two fell into another corrections officer, identified as “Greggs.”

Greggs told Ross to quit struggling. Once again, Ross unsuccessfully attempted to force Porter’s cut leg into the air, and Porter repeated that it hurt his leg because of a cut he had sustained. Greggs said to Porter, “I’m going to lay you on your stomach on the floor.” Porter did not resist as he was laid face-down on the ground. After Porter was on the ground, Ross used a Taser to apply an electric current to Porter’s back for five to ten seconds, leaving burn marks on Porter’s skin. Porter filed a formal grievance with the Jackson County Sheriff’s Office, after which Ross lost the privilege of carrying a Taser.

Porter also alleges that after this incident, jail officials denied him medical treatment for his burns and punished him further with five days of lockdown and restricting him from calling home.

Porter filed suit against Jackson County Jail and Ross, alleging violations of his constitutional rights pursuant to § 1983. He seeks $1, 500, 000 for pain and mental anguish, as well as the termination of defendant Ross from his employment at the jail. The court dismissed the Jackson County Jail as a party not capable of being sued. See Dkt. 11.

II. Motion to Dismiss

A. Legal Standard

Federal Rule of Civil Procedure 8(a)(2) provides that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The complaint must give the defendant adequate notice of what the plaintiff’s claim is and the grounds of that claim. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).

“In reviewing a motion to dismiss, this court must look for plausibility in the complaint . . . . Under this standard, a complaint must include ‘enough facts to state a claim to relief that is plausible on its face.’ “ Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1223–24 (10th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (clarifying and affirming Twombly’s probability standard). “The issue in resolving a motion such as this is ‘not whether [the] plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims.’ “ Bean v. Norman, No. 008-2422, 2010 WL 420057, at *2, (D. Kan. Jan. 29, 2010) (quoting Swierkiewicz, 534 U.S. at 511).

The court must construe pro se pleadings liberally, but “it need accept as true plaintiff’s well-pleaded contentions, not his conclusory allegations.” Loggins v. Cline, 568 F.Supp.2d 1265, 1268 (D. Kan. 2008). It is not “the proper function of the district court to assume the role of advocate for the pro se litigant, ” and the court should not “construct arguments or theories for the plaintiff” or “supply additional factual allegations to round out a plaintiff’s complaint.” Shelby v. Mercy Regional Hospital, 2009 WL 1067309, at *2 (D. Kan. April 21, 2009). Moreover, pro se litigants are subject to and must follow procedural rules governing all litigants. Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 2002). Even a ...


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