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Nola v. FNU Buck

United States District Court, D. Kansas

December 22, 2017

SOULAKHONE NOLA, Plaintiff,
v.
FNU BUCK, SAM CLINE, Defendants.

          MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE

          SAM A. CROW, U.S. SENIOR DISTRICT JUDGE.

         Plaintiff Soulakhone Nola 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.

         I. Nature of the Matter before the Court

         Plaintiff 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. 6.) On November 13, 2017, the Court dismissed this action without prejudice due to Plaintiff's failure to timely comply with the Court's order to file an initial partial filing fee. (Docs. 7, 8.) Plaintiff filed a motion for reconsideration, noting that he encountered additional administrative delays in paying the fee. Plaintiff paid the partial filing fee on November 27, 2017, and the Court vacated the order and judgment dismissing the case without prejudice. Plaintiff's Complaint is now before the Court for screening.

         Plaintiff alleges that Sam Cline, Warden at Lansing Correctional Facility (“LCF”), transferred inmates to the Jackson County Jail to relieve overcrowding at LCF. Plaintiff alleges that Defendant S. Buck, Captain at Jackson County Jail (“JCJ”), conspired with KDOC to house the inmates from LCF. Plaintiff alleges that three inmates were housed in a 7.5 foot by 11.1 foot cell, and there was only 18 inches of space between the three bunks. Plaintiff alleges that he was denied access to the law library for over ninety days, he was not allowed recreation for 63 days, and he was denied medical treatment for over 60 days. Plaintiff alleges that he was transferred to JCJ on June 9, and as of September there were 25 inmates in C-Pod at JCJ.

         Plaintiff's request for relief seeks: transfer back to KDOC and relief from overcrowding; access to medical care; and compensatory damages in the amount of $250, 000.

         II. Statutory Screening of Prisoner Complaints

         The 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. § 1915A(b)(1)-(2).

         “To 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).

         A pro 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.

         The 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).

         The 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).

         III. DISCUSSION

         1. ...


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