United States District Court, D. Kansas
BJ D. BAILEY, Plaintiff,
DONALD ASH, Sheriff, Defendant.
MEMORANDUM AND ORDER
SAM A. CROW, Senior District Judge.
This pro se civil rights complaint was filed pursuant to 42 U.S.C. § 1983 by a Kansas inmate. Plaintiff claims that he was unlawfully detained in the Wyandotte County Detention Center (WCDC) for 16 days and that defendant failed to "resolve the problem." The court initially screened the complaint and found it deficient in several respects. Plaintiff was given time to file his complaint upon court-approved forms and ordered to cure the deficiencies in his new complaint. This matter is currently before the court upon plaintiff's new complaint that was submitted upon forms (Doc. 4). Having reviewed all materials in the file, the court finds that plaintiff has not cured deficiencies and this action is subject to dismissal for the additional significant reason that it appears to be time-barred. Plaintiff is given the opportunity to show cause why this action should not be dismissed for the reasons that follow.
FACTUAL ALLEGATIONS AND CLAIMS
As the factual basis for his new complaint, Mr. Bailey alleges the following. On June 5, 2012, he appeared with counsel before a judge at the Wyandotte County Courthouse in Case No. 2012-CR-415. The judge "by agreement and/or contract" ordered Mr. Bailey released on his own recognizance. Plaintiff was not released on June 5, 2012 as he expected, and was instead illegally detained at the WCDC until June 21, 2012. Wyandotte County Sheriff Ash and the Administrator of the WCDC had "firsthand knowledge" of the court's order because they had Mr. Bailey "in their custody and/or control." However, they refused to obey the order.
As Count I of his complaint, Mr. Bailey asserts "8th Amendment violation." As supporting facts, he re-alleges the foregoing facts and adds that, "[n]o other criminal case would have required (plaintiff's) continued confinement." He further alleges that administrative requests were timely submitted to the "pod officer, " the "policy/procedure was not followed, " and the "issues in the grievance were not addressed in accordance with the "detention policies/procedures." Plaintiff claims that he was "unlawfully seized" from the time that the judge ordered his release.
As Court II, plaintiff asserts "5th and 14th Amendment of the U.S. Constitution." As facts in support, he alleges the following. Defendant "had in their possession false and/or misleading documents that led to (plaintiff's) continued confinement contrary to the judge's order." "If such false and/or misleading information had not" been in defendants' possession, plaintiff "would have been release[d] in accordance with the judge's order."
As Count III, plaintiff asserts "14th Amendment of the U.S. Constitution." In support, he re-alleges that he was confined in the WCDC after the judge issued the "O.R. Order" and "was intentionally continued to be incarcerated contrary to said order."
Plaintiff seeks one million dollars, reasonable attorney fees, and costs.
In response to questions on exhaustion, plaintiff repeats that "an official complaint was submitted within the WCDC "through the pod office" but "no official has responded" to date.
Because Mr. Bailey is a prisoner, the court is required by statute to screen his new complaint and to dismiss the complaint or any portion thereof that is frivolous, fails to state a claim upon which relief may be granted, or seeks relief from a defendant immune from such relief. 28 U.S.C. § 1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(B). "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, 48-49 (1988)(citations omitted); Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992). A court liberally construes a pro se complaint and applies "less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007). In addition, the court accepts all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006). On the other hand, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The complaint must offer "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Its "factual allegations must be enough to raise a right to relief above the speculative level" ( id. ), and "to state a claim to relief that is plausible on its face." Id. at 570. The court "will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
FAILURE TO SHOW PERSONAL PARTICIPATION
In its prior Memorandum and Order (hereinafter M&O), the court found that plaintiff failed to allege sufficient facts to show the necessary element of personal participation on the part of defendant Ash in the alleged illegal detention. The court noted that liability could not be assigned to defendant Ash solely on the basis of respondeat superior and that plaintiff had not established that County Sheriff Ash had a duty or the authority to release him from detention. See Scull v. New Mexico, 236 F.3d 588, 599-600 (10th Cir. 2000). In his new complaint, plaintiff still fails to describe any act on the part of Sheriff Ash. Instead he argues that both defendants must be presumed to have had "firsthand knowledge" of the court's order releasing him on bond because he was "in their custody or control." The Tenth Circuit has explained that:
Supervisors are only liable under § 1983 for their own culpable involvement in the violation of a person's constitutional rights. To establish supervisor liability under § 1983, "it is not enough for a plaintiff merely to show a defendant was in charge of other state actors who actually committed the violation. Instead, ... the plaintiff must establish a deliberate, intentional act by the supervisor to violate constitutional rights.'" (Citations omitted). In short, the supervisor must be personally "involved in the constitutional violation, " and a "sufficient ...