United States District Court, D. Kansas
NOTICE AND ORDER TO SHOW CAUSE
CROW, U.S. SENIOR DISTRICT JUDGE.
Bobby Gene Cope, a county inmate appearing pro se, brings
this 42 U.S.C. § 1983 civil rights complaint. For the
reasons discussed below, Plaintiff is ordered to show cause
why his complaint should not be dismissed.
Nature of the Matter before the Court
complaint (Doc. #1) is based on the following allegations.
Plaintiff is currently incarcerated in the Cherokee County
Jail in Columbus, Kansas. He states he has submitted several
requests for the bottom bunk but has been repeatedly denied.
He alleges he has “scars from surgeries that could
disable [him] from jumping up on a top bunk.” Doc. #1,
p. 3. Plaintiff claims Captain Tippie and the jail staff were
on notice of his disabilities. While it is not clear from the
complaint, apparently Plaintiff eventually suffered a fall
and a “substantial injury.” Doc. #1, p. 3-4. He
states Sergeant Miller told him to quit faking and get up,
Nurse Wagner refused to treat him, and Sergeant Macafee told
him he could not be a trustee due to his injuries.
names the Cherokee County Sheriff's Department, the
Cherokee County Jail, and Cherokee County itself as
defendants. He requests relief in the form of monetary
damages and payment of his hospital bills.
Statutory Screening of Prisoner Complaints
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
employee of such entity to determine whether summary
dismissal is appropriate. 28 U.S.C. § 1915A(a).
Additionally, with any litigant, such as Plaintiff, who is
proceeding in forma pauperis, the Court has a duty to screen
the complaint to determine its sufficiency. See 28
U.S.C. § 1915(e)(2). Upon completion of this screening,
the Court must dismiss any claim that is frivolous or
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary damages from a defendant who is
immune from such relief. 28 U.S.C. §§ 1915A(b),
survive this review, the plaintiff must plead “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). In applying the Twombly standard,
the Court must assume the truth of all well-pleaded factual
allegations in the complaint and construe them in the light
most favorable to the plaintiff. See Leverington v. City
of Colo. Springs, 643 F.3d 719, 723 (10th
pro se plaintiff's complaint must be liberally construed,
Erickson v. Pardus, 551 U.S. 89, 94 (2007), pro se
status does not relieve the plaintiff of “the burden of
alleging sufficient facts on which a recognized legal claim
could be based.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). The Court need not
accept “mere conclusions characterizing pleaded
facts.” Bryson v. City of Edmond, 905 F.2d
1386, 1390 (10th Cir. 1990). “[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 will not do.” Twombly, 550
U.S. at 555 (internal quotation marks omitted).
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);
Northington v. Jackson, 973 F.2d 1518, 1523 (10th Cir.
1992). In addressing a claim brought under § 1983, the
analysis begins by identifying the specific constitutional
right allegedly infringed. Graham v. Connor, 490
U.S. 386, 393-94 (1989). The validity of the claim then must
be judged by reference to the specific constitutional
standard which governs that right. Id.
complaint is subject to dismissal for a number of reasons.
Cope names three defendants, none of which are proper. None
of the defendants named is a “person” subject to
suit for money damages under § 1983. See Will v.
Mich. Dep't of State Police, 491 U.S. 58, 66, 71
(1989) (neither state nor state agency is a
“person” which can be sued under § ...