United States District Court, D. Kansas
JAMES D. BLACKBEAR, Plaintiff,
BUTLER COUNTY JAIL, et al., Defendants.
NOTICE AND ORDER TO SHOW CAUSE
CROW, U.S. Senior District Judge
Plaintiff James D. Blackbear, a state prisoner proceeding
pro se and in forma pauperis, brings this
42 U.S.C. § 1983 civil rights complaint. For the reasons
discussed below, Plaintiff is ordered to show good cause why
his Complaint should not be dismissed.
Nature of the Matter before the Court
Blackbear was a pre-trial detainee at the Butler County Jail
in El Dorado, Kansas, at the time he filed his Complaint. He
is currently incarcerated at Winfield Correctional Facility.
Mr. Blackbear filed this lawsuit on November 14, 2016, and
was directed to refile his Complaint on the court-approved
form. He complied, filing his Complaint on the correct form
on November 23, 2016 (Doc. #3).
Blackbear makes a number of allegations about his treatment
at the Butler County Jail. He states he was denied proper
medical treatment while detoxing from heavy drug use; he was
denied telephone use and video visitation on November 18,
2016; and the staff has been treating him with animosity
since he filed this lawsuit. He also mentions he was denied
food consistent with his religious beliefs and/or food
allergies from October 29, 2016, until November 18, 2016,
after he filed his initial complaint in this lawsuit.
names the Butler County Jail and Deputy (FNU) Flax as
defendants. He requests relief in the form of $2.5 million.
Mr. Blackbear does not specify which of his constitutional
rights he believes Defendants have violated.
Statutory Screening of Prisoner Complaints
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
employee of such entity to determine whether summary
dismissal is appropriate. 28 U.S.C. § 1915A(a).
Additionally, with any litigant, such as Plaintiff, who is
proceeding in forma pauperis, the Court has a duty
to screen the complaint to determine its sufficiency.
See 28 U.S.C. § 1915(e)(2). Upon completion of
this screening, the Court must dismiss any claim that is
frivolous or malicious, fails to state a claim upon which
relief may be granted, or seeks monetary damages from a
defendant who is immune from such relief. 28 U.S.C.
§§ 1915A(b), 1915(e)(2)(B).
survive this review, the plaintiff must plead “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). In applying the Twombly standard,
the Court must assume the truth of all well-pleaded factual
allegations in the complaint and construe them in the light
most favorable to the plaintiff. See Leverington v. City
of Colo. Springs, 643 F.3d 719, 723 (10th
pro se plaintiff's complaint must be liberally
construed, Erickson v. Pardus, 551 U.S. 89, 94
(2007), pro se status does not relieve the plaintiff
of “the burden of alleging sufficient facts on which a
recognized legal claim could be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). The Court need not accept “mere conclusions
characterizing pleaded facts.” Bryson v. City of
Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990).
“[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 will not do.” Twombly, 550
U.S. at 555 (internal quotation marks omitted).
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); Northington v. Jackson, 973 F.2d 1518, 1523
(10th Cir. 1992). In addressing a claim brought
under § 1983, the analysis begins by identifying the
specific constitutional right allegedly infringed. Graham
v. Connor, 490 U.S. 386, 393-94 (1989). The validity of
the claim then must be judged by reference to the specific
constitutional standard which governs that right.
Complaint is subject to dismissal for several reasons.
Exhaustion of administrative remedies
42 U.S.C. § 1997e(a), a prisoner must exhaust his
administrative remedies prior to filing a lawsuit in federal
court regarding prison conditions. This exhaustion
requirement “is mandatory, and the district court [is]
not authorized to dispense with it.” Beaudry v.
Corrections Corp. of Am., 331 F.3d 1164, 1167 n. 5
(10th Cir. 2003), cert. denied, 540 U.S.
1118 (2004); Little v. Jones, 607 F.3d 1245, 1249
(10th Cir. 2010). While failure to exhaust is an
affirmative defense and a plaintiff is generally not required
to plead it in the complaint, when that failure is clear from
materials filed by the plaintiff, the Court may sua
sponte require the plaintiff to show that he has
exhausted. See Aquilar-Avellaveda v. Terrell, 478
F.3d 1223, 1225 (10th Cir. 2007)(acknowledging
district courts may raise exhaustion question sua
sponte, consistent ...