United States District Court, D. Kansas
NOTICE AND ORDER TO SHOW CAUSE
J. WAXSE U.S. Magistrate Judge.
matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff, a prisoner in state custody, 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).
the limited financial information provided shows that
plaintiff has no income and that his available balance is
less than $1.00. The court therefore does not impose an
initial partial filing fee but advises plaintiff that he
remains obligated to pay the $350.00 filing fee.
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
party proceeding pro se and applies “less stringent
standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
complaint alleges that a media news team in Wichita, Kansas,
violated plaintiff's rights by making false claims in a
story concerning him. Plaintiff alleges damage to his
reputation. As relief, he seeks a retraction, an apology, and
complaint filed under § 1983, the plaintiff must
identify “the violation of the 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.” Bruner v. Baker,
506 F.3d 1021, 1025-26 (10th Cir. 2007)(citation omitted). A
defendant acts “under color of state law” when he
“exercise[s] power possessed by virtue of state law and
made possible only because the wrongdoer is clothed with the
authority of state law.” West v. Atkins, 487
U.S. 42, 49 (1988)(citation omitted).
to present a viable claim under § 1983, a plaintiff must
allege facts that plausibly show that the conduct of the
private individual or entity allegedly causing a
constitutional deprivation is “fairly attributable to
the state.” Scott v. Hern, 216 F.3d 897, 906
(10th Cir. 2000)(citations and internal quotation marks
omitted). Private conduct alone does not satisfy the
requirement that the defendant acted “under color of
state law”, and when only private conduct is alleged,
there is no liability under § 1983. See Brentwood
Acad. v. Tennessee Secondary Athletic Ass'n, 531
U.S. 288, 294-96 (2001).
claims against the news team allege only private conduct, and
there is no showing that the defendant acted under color of
state law or that the conduct was attributable to the state.
Accordingly, this matter is subject to dismissal for failure
to state a claim for relief.
also moves for the appointment of counsel. As a party in a
civil action, he has no constitutional right to counsel.
See Carper v. Deland, 54 F.3d 613, 616 (10th Cir.
1995). The court, in its discretion, may appoint counsel for
an indigent plaintiff, see 28 U.S.C. §
1915(e)(1), and must consider the merits of the claims, the
nature of the issues presented, the party's ability to
present the claims, and the complexity of the legal issues
involved. Rucks v. Boergermann, 57 F.3d 978, 979
(10th Cir. 1995). Because the court finds that plaintiff has
not stated a claim for relief, the motion will be denied.