United States District Court, D. Kansas
MARCQUAL D. HIGHTOWER, Plaintiff,
STATE OF KANSAS, YOLANDA COLLINS, and FNU LNU SEDGWICK COUNTY DISTRICT COURT CHILD SUPPORT JUDGE, Defendants.
NOTICE AND ORDER TO SHOW CAUSE
J. Waxse, U.S. Magistrate Judge
Plaintiff Marcqual D. Hightower 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. Plaintiff is detained at the Sedgwick
County Detention Center in Wichita, Kansas. Plaintiff filed a
Complaint (Doc. 1), alleging the following. In 2009,
Plaintiff was informed that he may possibly be the father of
a child and that he would be notified for a paternity test. A
paternity test was not administered at that time by “an
authorized State of Kansas Health and/or licensed
representative.” Plaintiff was arrested for nonpayment
of child support. Plaintiff filed a motion with the state
court requesting a paternity test, but the judge informed him
“it was too late.” A year and a half later,
Plaintiff again motioned for a paternity test and the judge
denied the request. Plaintiff then had his own paternity test
administered and it was “negative.” He showed
this test to the state court, to the child support office and
to the child's mother-defendant Yolanda Collins.
Plaintiff names as defendants the State of Kansas, the state
court judge, and Yolanda Collins. Plaintiff challenges the
state court judge's denial of his two motions for
paternity testing and Collins' actions in allowing him to
go to jail and in allowing garnishment his checks.
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).
State of Kansas
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 subject to
dismissal against defendant State of Kansas because this
defendant is not a “person” amenable to suit
under § 1983 and it is immune from suit under the