United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
Crow, U.S. Senior District Judge.
Dallas Guy is hereby required to show good cause, in writing,
to the Honorable Sam A. Crow, United States District Judge,
why this case 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 incarcerated at the
Lansing Correctional Facility in Lansing, Kansas
(“LCF”). Plaintiff alleges the following in his
Complaint. On October 15, 2016, Plaintiff was assaulted in
B-2 cell house at LCF, by individuals who used weapons.
Plaintiff received injuries and was housed in the infirmary
and placed on segregation status. On October 17, 2016,
Defendant Enforcement, Apprehension, and Investigations
employee (“EAI”) Bousfield conducted a
segregation review with Plaintiff. Plaintiff advised
Bousfield that his life was in danger and that he needed
protection. Bousfield responded that he knew that, because
the head of the Gangster Disciples, whom Bousfield
acknowledged by name, “doesn't like people walking
away.” On October 18, Plaintiff was released from the
infirmary to segregation, to finish his disciplinary
segregation. On October 26, 2016, Plaintiff was told to leave
segregation and to return to general population. On October
29, 2016, Plaintiff was assaulted again in B-2 cell house by
an inmate who used a weapon. On October 30, Plaintiff was
attacked again and forced to protect himself. UTM Parker of
C-1 cell house placed Plaintiff's life back in danger
after Plaintiff told her about his situation. After Plaintiff
refused the treatment bed in A-1 cell house, Parker
threatened Plaintiff that she would call the “black
suits” to force cell him. Plaintiff acknowledges that
he received disciplinary reports for fighting.
names as defendants: Warden Sam Cline; Unit Team Manager
(“UTM”) Lindsey Wildermuth; and EAI John
Bousfield. In his request for relief, Plaintiff seeks to have
his disciplinary consequences dropped, to have all privileges
and incentives reinstated, and monetary 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 ‘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).
Official Capacity Claims
sues Defendants in their individual and official capacities.
An official-capacity suit is another way of pleading an
action against the governmental entity itself. Kentucky
v. Graham, 473 U.S. 159, 165 (1985). “When a suit
alleges a claim against a state official in his official
capacity, the real party in interest in the case is the
state, and the state may raise the defense of sovereign
immunity under the Eleventh Amendment.” Callahan v.
Poppell, 471 F.3d 1155, 1158 (10th Cir. 2006) (quotation
omitted). Sovereign immunity generally bars actions in
federal court for damages against state officials acting in
their official capacities. Harris v. Owens, 264 F.3d
1282, 1289 (10th Cir. 2001). It is well established that
Congress did not abrogate the states' sovereign immunity
when it enacted § 1983. Quern v. Jordan, 440