United States District Court, D. Kansas
J. WAXSE U.S. Magistrate Judge.
This matter is a civil rights action filed pursuant to 42
U.S.C. § 1983. Plaintiff is a prisoner held in the
Saline County Jail. He proceeds pro se and seeks leave to
proceed in forma pauperis.
motion to proceed in forma pauperis
motion is governed by 28 U.S.C. § 1915(b). Because
plaintiff is a prisoner, he must pay the full filing fee in
installment payments taken from his prison trust account when
he “brings a civil action or files an appeal in forma
pauperis[.]” § 1915(b)(1). Pursuant to §
1915(b)(1), the court must assess, and collect when funds
exist, an initial partial filing fee calculated upon the
greater of (1) the average monthly deposit in his account or
(2) the average monthly balance in the account for the
six-month period preceding the filing of the complaint.
Thereafter, the plaintiff must make monthly payments of
twenty percent of the preceding month's income in his
institutional account. § 1915(b)(2). However, a prisoner
shall not be prohibited from bringing a civil action or
appeal because he has no means to pay the initial partial
filing fee. § 1915(b)(4).
plaintiff's average monthly deposit is $49.50, and the
average balance cannot be calculated from the ledger
supplied. The court therefore assesses an initial partial
filing fee of $9.50, twenty percent of the average monthly
deposit, rounded to the lower half dollar.
federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental
entity or an officer or employee of such an entity.
See 28 U.S.C. §1915A(a). Following this review,
the court must dismiss any portion of the complaint that is
frivolous, malicious, fails to state a claim upon which
relief may be granted, or seeks monetary damages from a
defendant who is immune from that relief. See 28
U.S.C. § 1915A(b).
screening, a court liberally construes pleadings filed by a
praty proceeding pro se and applies “less stringent
standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
state a claim for relief under Section 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
avoid a dismissal for failure to state a claim, a complaint
must set out factual allegations that “raise a right to
relief above the speculative level.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court
accepts the well-pleaded allegations in the complaint as true
and construes them in the light most favorable to the
plaintiff. Id. However, “when the allegations
in a complaint, however, true, could not raise a [plausible]
claim of entitlement to relief, ” the matter should be
dismissed. Id. at 558. A court need not accept
“[t]hreadbare recitals of the elements of a cause of
action supported by mere conclusory statements.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather,
“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).
Tenth Circuit has observed that the U.S. Supreme Court's
decisions in Twombley and Erickson set out
a new standard of review for dismissals under 28 U.S.C.
§ 1915(e)(2)(B)(ii) dismissals. See Key v.
Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007)(citations
omitted). Following those decisions, 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 (quotation
marks and internal citations omitted). A plaintiff
“must nudge his claims across the line from conceivable
to plausible.” Smith v. United States, 561
F.3d 1090, 1098 (10th Cir. 2009). In this context,
“plausible” 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 [the] claims
across the line from conceivable to plausible.”
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (citing
Twombly at 1974).
sues the Saline County Sheriff and two captains employed at
the Saline County Jail, alleging a violation of his rights under
the Fourth and Fourteenth Amendments. The complaint alleges
that on February 22, 2017, jail employees removed
plaintiff's shoes from his property and delivered them to
the state district court. In Count I of the complaint,
plaintiff alleges the shoes were given to the district
attorney; however, in Count II, he states that in a grievance
response, a jail employee stated that the “the court
called for the shoes” (Doc. #1, p. 4). It appears the
shoes were offered as evidence by the prosecutor in a jury
trial in which plaintiff was found guilty (Id., p.
the shoes were delivered to the state trial court in response
to a court order and as part of a criminal proceeding, the
plaintiff's claims concerning the production and
retention of his shoes as evidence should be addressed to
that court by objection or motion in the criminal case.
See Thompson v. Larned State Hospital, 597 Fed.Appx.
548 (10th Cir. Mar. 3, 2015)(affirming dismissal of action
under Section 1983 where plaintiff challenged state
hospital's release of medical records pursuant to
subpoena from California court). The plaintiff offers no
authority that would impose ...