United States District Court, D. Kansas
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. Plaintiff, now a prisoner in state custody, proceeds
pro se and in forma pauperis.
brings this action against unnamed individuals employed by
the Topeka, Kansas, Police Department, Shawnee County
Sheriff's Department, Shawnee County District
Attorney's Office, and the Topeka Capitol Journal. He
also sues the complaining witness in the criminal charges
brought against him.
states that in August 2014, he was accused of a crime. As a
result of the charges, he was placed on a regional most
wanted list, and his name and photograph appeared in local
January 2015, he was arrested by a federal task force.
Plaintiff was unable to make bail. A preliminary hearing was
conducted in spring 2015, and trial was set for July 7, 2015.
However, after the complaining witness failed to appear at
the trial, the prosecution dismissed the
Court is required to screen complaints filed by a prisoner
seeking relief against a governmental entity or an officer or
employee of a governmental entity. 28 U.S.C. s 1915A(a). The
Court must dismiss a complaint or any portion of a complaint
if a plaintiff presents claims that are legally frivolous,
fail to state a claim on which relief may be granted, or seek
relief from a defendant immune from such relief. 28 U.S.C.
§ 1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(B).
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, 48-49
(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, at Arapahoe County Justice
Center, 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 plaintiff's behalf.” Whitney v. New
Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
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 (quotation marks and citations
omitted). Under this new standard, “a plaintiff must
nudge his claims across the line from conceivable to
plausible.” Smith, 561 F.3d at 1098 (quotation
marks and citation omitted). Bloom v. McPherson, 346
Fed. App'x. 368, 372 (10th Cir. 2009); Robbins,
519 F.3d at 1247-48; see Ellibee v. Fox, 244 Fed.
App'x. 839, 843 (10th Cir. 2007). “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, 519 F.3d at 1247 (citing Twombly,
the Court considers plaintiff's claims against two
unnamed employees of the Topeka Capitol Journal, identified
as the editor of the on-line edition of the newspaper, and a
journalist employed by the newspaper.
plaintiff is suing these defendants under 42 U.S.C.
§1983, he must demonstrate both that there was a
constitutional violation and that the violation was committed
by a state actor. West v. Atkins, 487 U.S. 42, 48
(1988). The complaint does not identify any grounds for a
finding that these defendants are state actors. See
Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442,
1447 (10th Cir. ...