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Jamerson v. Heimgartner

United States District Court, D. Kansas

February 7, 2018

JAMES LEE JAMERSON, Plaintiff,
v.
JAMES HEIMGARTNER, et al., Defendants.

          MEMORANDUM AND ORDER AND ORDER TO SHOW

          SAM A. CROW Senior U.S. District Judge

         Order Plaintiff James Lee Jamerson is hereby required to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why this action 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. Although Plaintiff is currently incarcerated at the Hutchinson Correctional Facility in Hutchinson, Kansas, the events giving rise to his Complaint took place during his incarceration at the Lansing Correctional Facility in Lansing, Kansas (“LCF”) and the El Dorado Correctional Facility in El Dorado, Kansas (“EDCF”).

         Plaintiff alleges in Count I of his Complaint that Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment when they failed to protect him from an assault by another inmate occurring in June, 2010. A few weeks after the altercation, Plaintiff appeared before the Segregation Review Board at LCF. At the hearing, Plaintiff was told that he would not be placed on OSR (Other Security Risk) for the altercation, but rather he would be placed on OSR for contraband and a gang-related incident. Plaintiff was then transferred to EDCF where he remained in administrative segregation for more than three years. Plaintiff alleges as Count II that he was subjected to retaliation in the form of long term segregation because prison official claimed Plaintiff was introducing dangerous contraband within the correctional facility without any evidence to prove the allegations. Plaintiff alleges that Defendants' false reports, without some evidence, violated Plaintiff's due process rights.

         Plaintiff received a disciplinary report at EDCF for possession of dangerous contraband in April, 2014. Plaintiff filed a state habeas action alleging a denial of due process and insufficient evidence at his disciplinary proceeding. The district court dismissed the petition, and the Kansas Court of Appeals reversed and remanded, finding that “it appears that Jamerson could be entitled to relief for a violation of his due process right to call witnesses to testify at the disciplinary hearing.” (Doc. 1-1, at 16.) After Plaintiff's state habeas action was remanded in June 2015, KDOC and EDCF dismissed the disciplinary action against Plaintiff, restored all of his good time, and gave Plaintiff his money back. They did not compensate Plaintiff for the time he spent in segregation or the time he spent on privileged restriction. As Count III, Plaintiff alleges that he was subjected to a false conviction as a result of the disciplinary action regarding dangerous contraband, violating his Eighth Amendment right to be free from cruel and unusual punishment. Plaintiff filed a “Motion to Alter or Amend Complaint” (Doc. 11), seeking to add a claim for the tort of outrage as Count IV of his Complaint. The claim is based on Defendants' alleged falsification of documents as set forth in the Complaint. Plaintiff seeks compensatory, punitive, and exemplary damages.

         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. Statute ...


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