United States District Court, D. Kansas
JAMES A. HATHORN, Plaintiff,
MEAGAN SHIPLEY, Defendant.
NOTICE AND ORDER TO SHOW CAUSE
J. Waxse U.S. Magistrate Judge
Plaintiff James A. Hathorn is hereby required to show good
cause, in writing, to the Honorable Sam A. Crow, United
States District Judge, why this action should not be
dismissed due to the deficiencies in Plaintiff's
Complaint that are discussed herein.
Nature of the Matter before the Court
brings this pro se civil rights action pursuant to
42 U.S.C. § 1983. The Court granted Plaintiff leave to
proceed in forma pauperis. Plaintiff is currently
detained in the Douglas County Jail in Lawrence, Kansas.
Plaintiff filed a Complaint (Doc. 1), alleging the following.
On December 23, 2015, Defendant Meagan Shipley, a law
enforcement officer with the Lawrence Police Department,
struck Plaintiff's car as he drove Eastbound on K-10 from
Eudora to Johnson County. Plaintiff claims that he was
“blinded by bright head lights on the rear of [him]
when suddenly [he] was struck by the same vehicle with the
headlights on by a pit-manuevered fashion.” (Doc. 1, at
2.) Plaintiff alleges that the impact of the hit turned his
car onto the median travelling in the opposite Westbound
direction, causing a semi-truck to collide with the passenger
side of Plaintiff's vehicle and causing Plaintiff to
suffer severe injuries.
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).
claim alleged in Plaintiff's Complaint is subject to
dismissal because Plaintiff has not adequately alleged a
federal constitutional violation. His claim suggests that
Defendant Shipley was negligent. Violations of state law are
not sufficient grounds for relief in federal court under 42
U.S.C. § 1983. In a § 1983 action, the complaint
must specify “the violation of a right secured by the
Constitution and laws of the United States, and . . . that
the alleged deprivation was committed by a person acting
under color of state law.” Bruner v. Baker,
506 F.3d 1021, 1025-26 (10th Cir. 2007). “[A] violation
of state law alone does not give rise to a federal cause of
action under § 1983.” Malek v. Haun, 26
F.3d 1013, 1016 (10th Cir. 1994) (citation omitted).
Plaintiff makes no reference to any federal constitutional
provision or federal law in the alleged claim. He may believe
that the U.S. Constitution was violated but simply failed to
specify the constitutional provision. However, the Court is
not free to “construct a legal theory on a
Response and/or Amended Complaint Required
reasons stated herein, it appears that this action is subject
to dismissal in its entirety for failure to state a claim.
Plaintiff is therefore required to show good cause why his
Complaint (Doc. 1) should not be dismissed for the reasons
stated herein. The failure to file a timely, specific
response waives de novo review by the District Judge, see
Thomas v. Arn, 474 U.S. 140, 148-53 (1985), and also