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 commenced this action while incarcerated. He
proceeds pro se and in forma pauperis.
plaintiff alleged he could not identify individual defendants
and that the Saline County Jail (“SCJ”) would not
return his personal property, through which the prospective
defendants could be identified, the Court directed the
preparation of a Martinez report.
the filing of that report, the Court has conducted an initial
screening of the complaint and enters the following order.
Court is required to screen complaints brought by a prisoner
seeking relief against a governmental entity or an officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court must dismiss a complaint, or any portion of it, if
the plaintiff's claims are legally frivolous or
malicious, fail to state a claim upon which relief may be
granted, or seek monetary damages from a defendant who is
immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2).
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 must liberally
construe a pro se party's pleadings and will apply
“less stringent standards than formal pleadings drafted
by lawyers.” Erickson v. Pardus, 551 U.S. 89,
94 (2007). In addition, a court accepts all well-pleaded
allegations in the complaint as true. Anderson v.
Blake, 469 F.3d 910, 913 (10th Cir. 2006). However,
“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 party'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 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)(citations 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 now must “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 the
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 instead 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, 550 U.S. at 570).
complaint alleges that he was arrested four days after leg
surgery and booked into the SCJ. He claims that while he was
incarcerated there, his bandages, brace, and medications were
taken away, that he was placed in an unsanitary cell, and
that he was not allowed to see a physician. He later tested
positive for MRSA and underwent antibiotic treatment and
another surgical procedure. He seeks monetary damages (Doc.
claims primarily allege inadequate medical care during his
incarceration at the SCJ. Because he was a pretrial detainee
during the relevant time, his right to adequate medical care
was guaranteed by the Due Process Clause of the Fourteenth