United States District Court, D. Kansas
NOTICE AND ORDER TO SHOW CAUSE
J. Waxse U.S. Magistrate Judge.
is hereby required to show good cause in writing to the
Honorable Sam A. Crow, United States District Judge, why this
action brought under 42 U.S.C. § 1983 should not be
dismissed for failure to state a claim. If plaintiff fails to
show good cause within the time prescribed herein, this
action may be dismissed without further notice.
Birch, while an inmate of the Sterling Correctional Facility
in Sterling, Colorado (“SCF”) filed this pro se
civil complaint under 42 U.S.C. § 1983. He proceeds in
forma pauperis. Plaintiff alleges that defendants,
Sprint/Nextel Corporation and various other Sprint entities,
violated both the constitution and 18 U.S.C. § by
failing to respond to a subpoena issued in
2007. Specifically, plaintiff alleges that in
November of 2007, a Denver police detective sent to Sprint
preservation letters and a search warrant seeking cell phone
records related to a homicide that occurred eleven months
before, on December 6, 2006. Sprint provided all requested
records except cell-site data, which had already been purged
pursuant to Sprint's 60-day data retention policy.
Plaintiff claims that “a reasonable probability
exists” that had the cell-site data been preserved, he
would not have later been convicted in 2011 of first-degree
court is required by statute to screen the complaint and to
dismiss the complaint or any portion thereof that is
frivolous, fails to state a claim on 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 pro se party's complaint must be given a liberal
construction. Haines v. Kerner, 404 U.S. 519, 520
(1972). However, a party proceeding pro se has “the
burden of alleging sufficient facts on which a recognized
legal claim could be based.” Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir.1991).
considered plaintiff's allegations, the court finds the
complaint is subject to summary dismissal because
plaintiff's claims are time-barred. The Supreme Court
directs courts to look to state law for the appropriate
period of limitations in cases filed under 42 U.S.C. §
1983. Wilson v. Garcia, 471 U.S. 261, 266-67 (1985).
In Kansas, that period is two years. See Baker v. Board
of Regents of State of Kan., 991 F.2d 628, 630-31 (10th
Cir. 1993) (two-year statute of limitations in K.S.A. 60-513
applies to civil rights actions brought pursuant to 42 U.S.C.
§ 1983). The court looks to state law for tolling rules,
just as it does for the length of statutes of limitations.
Wallace v. Kato, 549 U.S. 384, 395, 127 S.Ct. 1091,
1098-99 (2007). A prisoner's civil rights complaint may
be dismissed sua sponte as time-barred, typically after
giving the prisoner notice of the timeliness issue and an
opportunity to provide the necessary showing. See, e.g.,
Starr v. Kober, 642 Fed. App'x 914, 2016 WL 929724,
at *4 (10th Cir., March 11, 2016). Plaintiff
alleges a purported constitutional violation which occurred
at the very latest in 2011 - more than two years before he
filed his complaint on February 23, 2017 - and the complaint
contains no allegations to establish a factual basis for
tolling the statute. See Aldrich v. McCulloch Properties,
Inc., 627 F.2d 1036, 1041 n.4 (10th Cir.
1980) (holding that when the dates given in the complaint
make clear that the right sued upon has been extinguished,
plaintiff has the burden to establish a factual basis for
tolling the statute).
court further finds that the complaint is subject to
dismissal because it fails to state a claim upon which relief
can be granted. For liability to attach under 42 U.S.C.
§ 1983, the defendant must have acted “under color
of state law”; this requirement is an essential element
of a Section 1983 claim. West v. Atkins, 487 U.S.
42, 48-49 (1988); Polk County v. Dodson, 454 U.S.
312, 315 (1981). A defendant acts “under color of state
law” when he or she exercises “power possessed by
virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.”
Lugar v. Edmonsdson Oil Co., Inc., 457 U.S. 922, 929
(1982) (citations omitted); West, 487 U.S. at 49;
Yanaki v. Iomed, Inc., 415 F.3d 1204, 1208 (10th
Cir. 2005), cert. denied, 547 U.S. 1111 (2006). It is
plaintiff's burden to meet the jurisdictional
prerequisite that the defendants acted under color of state
law. Hall v. Witteman, 569 F.Supp.2d 1208, 1220 (D.
Kan.2008) (citing Dry v. City of Durant, 242 F.3d
388 (10th Cir. 2000), aff'd, 584 F.3d 859 (10th Cir.
2009). Plaintiff alleges no facts that the defendants acted
under color of state law, or conspired with state actors, or
participated in any type of joint action with the State.
Accordingly, plaintiff has alleged no basis for suing
defendants under 42 U.S.C. § 1983 and the complaint
therefore states no claim upon which relief can be granted.
18 U.S.C. § 2703(e) specifically provides that no cause
of action can be brought against a wire or electronic
communication provider for disclosing information pursuant to
a court order, warrant, subpoena, or other authorization.
Consequently, plaintiff's complaint states no claim upon
which relief can be granted.
IS THEREFORE BY THE COURT ORDERED that plaintiff is
given twenty-one (21) days to show good cause in writing to
the Honorable Sam A. Crow, United States Senior District
Judge, why plaintiff's complaint should not be dismissed
as time-barred and for failure to state a claim upon which
relief can be granted.
IS SO ORDERED.
 On March 1, 2017, the court granted
plaintiff's motion for leave to proceed in forma pauperis
and directed plaintiff to pay an initial partial filing fee
of $39.50 within 14 days of receiving the order. Plaintiff
made the initial payment on March 13, 2017.
 Plaintiff seems to use the term
“subpoena” to refer to a preservation letter and
search warrant sent by ...