United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
Crow U.S. Senior District Judge
Scott Michael Martini 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 Amended 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, and assessed an initial partial
filing fee. (Doc. 5.) Plaintiff filed a response (Doc. 6)
indicating that he does not have the funds to pay the initial
partial filing fee. The Court will treat the response as a
request to waive the initial partial filing fee and will
grant the request.
November 2, 2017, Plaintiff filed a motion to amend his
complaint, for appointment of counsel and for injunctive
relief (Doc. 3). Because Plaintiff is entitled to amend his
complaint as a matter of course under Fed.R.Civ.P. 15(a)(1),
the Court grants the motion for leave to amend. The Clerk is
directed to docket Plaintiff's proposed Amended Complaint
at Doc. 3-1.
Amended Complaint, Plaintiff names as defendants: Sam Cline,
Warden at Lansing Correctional Facility (“LCF”);
Ms. Parker, Unit Team C-1 at LCF; Ms. Holloman, Unit Team C-1
at LCF; and Mr. Taylor, Unit Team at Ellsworth Correctional
Facility (“ECF”). Plaintiff sues the Defendants
in their official and individual capacities, and seeks
compensatory and punitive damages in the amount of three
million dollars, and injunctive relief in the form of
placement in protective custody and immediate eye surgery.
alleges that Defendants have denied his requests to be placed
in protective custody. Plaintiff alleges that Defendants
Parker and Holloman, Unit Team at C-1 Seg. Unit, refused to
put Plaintiff in protective custody at LCF. Plaintiff was
moved to G-Pod at ECF, and on February 28, 2017, he requested
Defendant Taylor to immediately move him to protective
custody. Defendant Taylor denied his request. Plaintiff was
subsequently assaulted by two “attackers” on
March 1, 2017, and was taken to the Ellsworth Hospital for a
CAT scan. Plaintiff attaches a KDOC Administrative
Segregation Report dated March 1, 2017. (Doc. 3-1, at 8.) The
document shows that Plaintiff had a pre-segregation hearing
and was then placed in administrative segregation on
“Other Security Risk” status after being involved
in an altercation in G-Pod. Plaintiff signed the report on
March 2, 2017, writing “asking for protection” by
also alleges that he is being denied proper medical care for
the eye injury he suffered due to the attack. Plaintiff
claims he is being denied eye surgery, and that there is no
eye doctor at the Jackson County Jail where he is currently
housed. Plaintiff also asserts that his access to the courts
has been limited while at the Jackson County Jail because he
does not have access to copies or a notary, and his legal
papers are still stored at LCF.
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
U.S. 332, 338-45 (1979); Ruiz v. McDonnell, 299 F.3d
1173, 1181 (10th Cir. 2002). Plaintiff's claims for
monetary damages against Defendants in their official
capacities are subject to dismissal as barred by sovereign
Individual Capacity Claims
has failed to allege any personal involvement by Defendant
Cline. The claims against Warden Cline require proof that he
personally committed a constitutional violation. Keith v.
Koerner, 843 F.3d 833, 837-38 (10th Cir. 2016) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)
(“Because vicarious liability is inapplicable to . . .
§ 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official's own
individual actions, has violated the Constitution.”)).
It is not ...