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Ford v. Mckinney

United States District Court, D. Kansas

January 31, 2018

DOMINICK JAMES FORD, Plaintiff,
v.
CASEY McKINNEY, et al., Defendants.

          NOTICE AND ORDER TO SHOW CAUSE

          SAM A. CROW U.S. Senior District Judge

         This 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.

         Background

         Plaintiff 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.

         Plaintiff 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 media.

         In 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 charges.[1]

         Screening

         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).

         “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, 48-49 (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).

         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, 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).

         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 (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, at 1974).

         Discussion

         1. Newspaper employees

         First, 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.

         Because 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. ...


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