United States District Court, D. Kansas
MEMORANDUM AND ORDER
Crow, Senior U.S. District Judge
brings this pro se civil rights action pursuant to
42 U.S.C. § 1983. Plaintiff is incarcerated at the
Douglas County Jail in Lawrence, Kansas. Plaintiff has filed
two Complaints (Docs. 1, 6), a “Complaint II”
(Doc. 7), a “Complaint III” (Doc. 13), a
“Complaint IV” (Doc. 12), a “Complaint -
Whistle Blower Act” (Doc. 14), a “Complaint
V” (Doc. 24) and a “Petition for Writ of Habeas
Corpus” (Doc. 25). In order to add claims, significant
factual allegations, or change defendants, a plaintiff must
submit a complete Amended Complaint. See Fed. R.
Civ. P. 15.
alleges in his original Complaint at Doc. 1 that Defendant
State of Kansas “committed treason” and is
involved in a “chain-conspiracy.” In response to
the section of the form complaint asking whether or not
Plaintiff exhausted his administrative remedies, he responded
“yes, ” and explained that relief was sought
through “President Obama, Governor Sam Brownback, . . .
James Comey . . . [and] The Pope.” Plaintiff names the
State of Kansas as the sole defendant, and seeks relief
“to be released to finish God's work and sanctify
secular human rights and arrest crooked cops that elevate
themselves at the people's expense.” Plaintiff has
filed six additional complaints since the filing of his
original complaint. Although largely incomprehensible, the
complaints suggest a conspiracy among the Lawrence Police
Department, the District Attorney's Office, the Douglas
County Sheriff's Office, a state court judge, and several
witnesses and inmates, relating to Plaintiff's state
court criminal proceedings. Plaintiff alleges that this
conspiracy against him renders him in need of an escort by
Federal Marshals and placement in a witness protection
program. Plaintiff also mentions R.I.C.O., the Federal
Arbitration Act, and the Whistleblower Act.
though Plaintiff is proceeding pro se, he is
required to comply with court rules and the Federal Rules of
Civil Procedure. Plaintiff's attempts to amend his
original complaint fail to comply with D. Kan. Rule 15.1.
Plaintiff also failed to present all of his claims on
complaint forms as required by D. Kan. Rule 9.1.
Statutory Screening of Prisoner Complaints
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
an employee of a governmental entity. 28 U.S.C. §
1915A(a). The Court must dismiss a complaint or portion
thereof if a plaintiff has raised claims that are legally
frivolous or malicious, that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
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)
(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, “when the
allegations in a complaint, however true, could not raise a
claim of entitlement to relief, ” dismissal is
appropriate. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 558 (2007).
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).
“[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitlement to relief'
requires “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S. at 555 (citations
omitted). The complaint's “factual allegations must
be enough to raise a right to relief above the speculative
level” and “to state a claim to relief that is
plausible on its face.” Id. at 555, 570.
Tenth Circuit Court of Appeals has explained “that, to
state a claim in federal court, a complaint must explain what
each defendant did to [the pro se plaintiff]; when
the defendant did it; how the defendant's action harmed
[the plaintiff]; and, what specific legal right the plaintiff
believes the defendant violated.” Nasious v. Two
Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir.
2007). The court “will not supply additional factual
allegations to round out a plaintiff's complaint or
construct a legal theory on a plaintiff's behalf.”
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th
Cir. 1997) (citation omitted).
Tenth Circuit has pointed out that the Supreme Court's
decisions in Twombly and Erickson gave rise
to a new standard of review for § 1915(e)(2)(B)(ii)
dismissals. See Kay v. Bemis, 500 F.3d 1214, 1218
(10th Cir. 2007) (citations omitted); see also Smith v.
United States, 561 F.3d 1090, 1098 (10th Cir. 2009). As
a result, courts “look to the specific allegations in
the complaint to determine whether they plausibly support a
legal claim for relief.” Kay, 500 F.3d at 1218
(citation omitted). Under this new standard, “a
plaintiff must ‘nudge his claims across the line from
conceivable to plausible.'” Smith, 561
F.3d at 1098 (citation omitted). “Plausible” in
this context does not mean “likely to be true, ”
but rather refers “to the scope of the allegations in a
complaint: if they are so general that they encompass a wide
swath of conduct, much of it innocent, ” then the
plaintiff has not “nudged [his] claims across the line
from conceivable to plausible.” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing
Twombly, 127 S.Ct. at 1974).
bring a § 1983 claim, a plaintiff must show a
“deprivation of a civil right by a ‘person'
acting under color of state law.” McLaughlin v. Bd.
of Trustees of State Coll. of Colo., 215 F.3d 1168, 1172
(10th Cir. 2000). The Supreme Court has held that
“neither a State nor its officials acting in their
official capacities are ‘persons' under §
1983.” Will v. Michigan Dep't of State
Police, 491 U.S. 58, 71 (1989); see also Howlett v.
Rose, 496 U.S. 356, 365 (1990) (“Will
establishes that the State and arms of the State, which have
traditionally enjoyed Eleventh Amendment immunity, are not
subject to suit under § 1983.”). Furthermore, the
Eleventh Amendment presents a jurisdictional bar to suits
against a state and “arms of the state” unless
the state waives its immunity. Peterson v. Martinez,
707 F.3d 1197, 1205 (10th Cir. 2013) (quoting Wagoner
Cnty. Rural Water Dist. No. 2 v. Grand River Dam Auth.,
577 F.3d 1255, 1258 (10th Cir. 2009)). Therefore, in the
absence of some consent, a suit in which an agent or
department of the state is named as a defendant is
“proscribed by the Eleventh Amendment.”
Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 100 (1984). Therefore, this action is dismissed
against defendant State of Kansas because this sole defendant
is not a “person” amenable to suit under §
1983 and it is immune from suit under the Eleventh Amendment.
Plaintiff's conclusory allegations of a conspiracy are
insufficient to state a claim. A conspiracy claim under
§ 1983 requires the allegation of “specific facts
showing an agreement and concerted action among the
defendants.” Tonkovich v. Kan. Bd. of Regents,
159 F.3d 504, 533 (10th Cir. 1998). In addition, a plaintiff
must allege facts showing an actual deprivation of a
constitutional right. See Thompson v. City of
Lawrence, 58 F.3d 1511, 1517 (10th Cir. 1995) (in order
to prevail on a section 1983 conspiracy claim, plaintiff
“must prove both the existence of a conspiracy and the
deprivation of a constitutional right”).
conspiracy claim is subject to dismissal for failure to
allege adequate facts to establish the elements of this
claim. As noted, in order to state a claim of conspiracy, a
plaintiff must allege facts showing both an agreement and an
actual deprivation of a constitutional right. See
Thompson, 58 F.3d at 1517. Plaintiff's complaint
does neither. Even though Plaintiff's allegations are
accepted as true on initial review, the “[f]actual
allegations must be [sufficient] to raise a right to relief
above the speculative level. . . .” Twombly,
550 U.S. at 555. Plaintiff's complaint asserts conclusory
and speculative claims of conspiracy with no supporting
factual allegations. Such bald assertions fail to state a