United States District Court, D. Kansas
BONIFACE W. WABUYABO, Plaintiff,
KANSAS DEPARTMENT FOR CHILDREN AND FAMILIES, et al., Defendants.
NOTICE AND ORDER TO SHOW CAUSE
CROW, U.S. SENIOR DISTRICT JUDGE
matter is a civil rights action filed under 42 U.S.C.
§1983 by a prisoner at the Johnson County Adult
Detention Center. Plaintiff proceeds pro se and submitted a
motion to proceed in forma pauperis.
motion to proceed in forma pauperis
motion is governed by 28 U.S.C. § 1915(b). Because
plaintiff is a prisoner, he must pay the full filing fee in
installment payments taken from his prison trust account when
he “brings a civil action or files an appeal in forma
pauperis[.]” § 1915(b)(1). Pursuant to §
1915(b)(1), the court must assess, and collect when funds
exist, an initial partial filing fee calculated upon the
greater of (1) the average monthly deposit in his account or
(2) the average monthly balance in the account for the
six-month period preceding the filing of the complaint.
Thereafter, the plaintiff must make monthly payments of
twenty percent of the preceding month’s income in his
institutional account. § 1915(b)(2). However, a prisoner
shall not be prohibited from bringing a civil action or
appeal because he has no means to pay the initial partial
filing fee. § 1915(b)(4).
petitioner has not supplied a financial statement, the Court
will direct him to supplement the motion to proceed in forma
pauperis with a certified financial statement showing deposit
and balance information for the six months preceding the
filing of this action.
federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental
entity or an officer or employee of such an entity.
See 28 U.S.C. §1915A(a). Following this review,
the court must dismiss any portion of the complaint that is
frivolous, malicious, fails to state a claim upon which
relief may be granted, or seeks monetary damages from a
defendant who is immune from that relief. See 28
U.S.C. § 1915A(b).
screening, a court liberally construes pleadings filed by a
party proceeding pro se and applies “less stringent
standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
state a claim for relief under Section 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, 48-49
avoid a dismissal for failure to state a claim, a complaint
must set out factual allegations that “raise a right to
relief above the speculative level.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court
accepts the well-pleaded allegations in the complaint as true
and construes them in the light most favorable to the
plaintiff. Id. However, “when the allegations
in a complaint, however, true, could not raise a [plausible]
claim of entitlement to relief,” the matter should be
dismissed. Id. at 558. A court need not accept
“[t]hreadbare recitals of the elements of a cause of
action supported by mere conclusory statements.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather,
“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).
Tenth Circuit has observed that the U.S. Supreme
Court’s decisions in Twombley and
Erickson set out a new standard of review for
dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii)
dismissals. See Key v. Bemis, 500 F.3d 1214, 1218
(10th Cir. 2007)(citations omitted). Following those
decisions, 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
(quotation marks and internal citations omitted). A plaintiff
“must nudge his claims across the line from conceivable
to plausible.” Smith v. United States, 561
F.3d 1090, 1098 (10th Cir. 2009). In this context,
“plausible” 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 [the] claims across
the line from conceivable to plausible.” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (citing Twombly
complaint states that plaintiff is incarcerated following the
filing of a case against him by the defendant Kansas
Department of Children and Families. The remaining defendants
are identified as witnesses. Plaintiff alleges that claims
made by witnesses have resulted in a permanent separation
from his children and a divorce, as well as the loss of
property and employment due to his incarceration.
review of on-line court records maintained by the Johnson
County District Court shows that plaintiff is the defendant
in a criminal action. Because it appears that the state criminal
action is related to his claims in this civil rights case,
the Court may be prohibited from considering his claims under
Younger v. Harris, 401 U.S. 37 (1971). “The
Younger doctrine requires a federal court to abstain
from hearing a case where (1) state judicial proceedings are
ongoing; (2) [that] implicate an important state interest;
and (3) the state proceedings offer an adequate opportunity
to litigate federal constitutional issues.” Buck v.
Myers, 244 F.App’x 193, 197 (10th Cir.
2007)(unpublished)(citing Winnebago Tribe of Neb. v.
Stovall, 341 F.3d 1202, 1204 (10th Cir. 2003)).
the state court materials show that a scheduling conference
is set for December 21, 2017; thus, the state judicial
proceedings are ongoing. Next, it is settled that a state has
an important interest in enforcing its criminal laws. See
Strickland v. Wilson, 399 Fed.Appx. 391, 397 (10th Cir.
2010). Finally, a state proceeding provides an adequate forum
if the plaintiff will have an “opportunity to raise and
have timely decided by a competent state tribunal” the