United States District Court, D. Kansas
NOTICE AND ORDER TO SHOW CAUSE
J. Waxse U.S. Magistrate Judge.
Plaintiff Daederick Cadell Lacy 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. Although Plaintiff is currently
incarcerated at the El Reno-FCI in El Reno, Oklahoma, the
events giving rise to his Complaint took place during his
detention at the Butler County Jail in El Dorado, Kansas. The
Court granted Plaintiff leave to proceed in forma pauperis.
Plaintiff filed a Motion for Leave to Amend Complaint (Doc.
5). The Court granted the motion, but because Plaintiff
failed to attach his proposed amended complaint to the
motion, the Court granted Plaintiff until July 21, 2017, to
file his amended complaint. In light of Plaintiff's
transfer to El Reno-FCI, the Court extended the deadline to
July 31, 2017. Because Plaintiff failed to file an amended
complaint by the deadline, the Court will screen
Plaintiff's original Complaint at Doc. 1.
alleges that the law library and the access to the law
library at the Butler County Jail are inadequate. Plaintiff
claims that on December 25, 2016, and February 5, 2017, he
was forced to choose between out of cell exercise time and
access to the law library. Plaintiff names as defendants: the
United States; Erik Ramsey, Captain at Butler County Jail;
and Jeremiah Emrich; Sergeant at Butler County Jail. As Count
I, Plaintiff claims a denial of access to the courts. As
Count II, Plaintiff claims a violation of his First and
Eighth Amendment rights because he was forced to choose
between out of cell exercise and access to the law library on
the two dates. Plaintiff seeks injunctive relief,
compensatory damages and punitive damages.
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 ‘entitle[ment] 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).
Denial of Access to the Courts
well-established that a prison inmate has a constitutional
right of access to the courts. However, it is equally
well-settled that in order “[t]o present a viable claim
for denial of access to courts, . . . an inmate must allege
and prove prejudice arising from the defendants'
actions.” Peterson v. Shanks,149 F.3d 1140,
1145 (10th Cir. 1998) (citations omitted); Lewis v.
Casey, 518 U.S. 343, 349 (1996) ...