United States District Court, D. Kansas
JAMES K. WALKER, PLAINTIFF,
TINA KASPAR, ET AL., DEFENDANTS.
NOTICE AND ORDER TO SHOW CAUSE
Crow U.S. Senior District Judge.
pro se civil rights action was filed pursuant to 42 U.S.C.
§ 1983 by a prisoner currently confined at El Dorado
Correctional Facility in El Dorado, Kansas. Plaintiff
proceeds in forma pauperis. His largely unintelligible
27-page complaint alleges that various constitutional
violations, apparently related to plaintiff's Jewish
faith, occurred during his pre-trial confinement at the
Sedgwick County Adult Detention Facility (SCADF) in Wichita,
Kansas. He sues ten SCADF employees: Tina Gilmore Kasper, Lt.
Taylor, Jeff Easter, Sgt. Abbett, Cpl. Showlander, (fnu)
Craft, (fnu) Harvey, (fnu) Padoc, Jeff Roberts, and (fnu)
Santos, and seeks as relief indemnification, injunction,
official capacity damages of $250, 000, individual capacity
damages of $80, 000, compensatory damages of $350, 000,
punitive damages of $80, 000, costs, and any additional
relief deemed just and proper.
Allegations in the Complaint
sets out some factual allegations in a section of the
complaint entitled “grievance process” but it is
unclear whether the interactions plaintiff describes occurred
in writing or orally or informally or through a formal
grievance process. Plaintiff alleges that on February 7,
2018, he asked to be included in various religious sessions
including morning “Christian Callouts with
Charles”, men's indepth, Christianity 101 on
Wednesday and Thursday mornings, to participate in services
on Mondays and Tuesdays, and to continue participating on
Wednesday afternoons and evenings, “even thou [sic]
voluntree's [sic] never show.” On February 8,
Chaplain Kaspar denied the request because of plaintiff's
history of signing up for services and then not attending. On
February 9, plaintiff demanded his “constitutional
rights to go to services on Wednesday and Thursday mornings
with everyone else, and all services.” On February 12,
Chaplain Kaspar notified plaintiff that he would be added to
list to attend 1:00 p.m. services on Tuesday and Wednesday.
On February 13, he attempted to attend the Tuesday service
but he was told his name was not on the list. He complained
to Chaplain Kaspar, and told her that he still wanted to
attend Wednesday and Thursday morning sessions, and to go to
other services on Monday through Friday. Chaplain Kaspar then
directed plaintiff to send his kite and grievance to Lt.
entry dated February 14, 2018, in what appears to be another
communication to Chaplain Kaspar, plaintiff recounts various
problems he has had with Lt. Taylor over plaintiff's
religion, and restates his complaint that he was not on the
list for the 1 p.m. Tuesday service.
February 16, plaintiff alleges he had a conversation with Lt.
Taylor about his request to attend services. During the
conversation, Lt. Taylor allegedly told plaintiff to stop
complaining to the chaplain, that the list to attend morning
services is long, and that plaintiff will continue to be
allowed to attend Wednesday afternoon and evening services.
Plaintiff then alleges Lt. Taylor asked him whether he
“erase[d] those grievances like I said”, to which
plaintiff responded “yes.”
separate portion of the complaint entitled
“closing”, plaintiff sets out additional
conclusory allegations that the defendants violated
plaintiff's 1st, 4th,
5th, 8th, 11th, and
14thAmendment rights during his incarceration from
August 13, 2015, through the date of the complaint until he
petitioned with grievances and had a long talk with Chaplain
Lewis. He alleges that defendants took plaintiff's
religious books during a shake down and would not allow
plaintiff to have them back. He further alleges that he was
continuously locked down because of his Messianic customs,
that he and his cell were regularly searched, that he was
threatened with D.D. weekly, that he was defamed, harassed,
punished, yelled at, and allowed outside only once per year;
that he experienced “forced nudity”, had cold air
blown on him, had no contact with his family, and had bright
lights and strobe lights shined in his eyes.
alleges that he used the prisoner grievance system between
February 7, 2018 and February 17, 2018, but that Lt. Taylor
told him to erase and stop communicating with the chaplain.
He alleges that twice - in September of 2017 and February of
2018 - he used the grievance procedure “all the way to
the cpt.” but that he never heard back.
Screening Under 28 U.S.C. § 1915A
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).
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).
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, 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).
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 ...