United States District Court, D. Kansas
NOTICE AND ORDER TO SHOW CAUSE
CROW, U.S. SENIOR DISTRICT JUDGE.
matter is before the Court on plaintiff's amended
complaint (Doc. #19) in this civil rights action brought
under Bivens. The Court has conducted an initial review
of the complaint under 28 U.S.C. §1915A and enters the
following findings and order.
amended complaint names as defendants the United States of
America and the following employees of the federal Bureau of
Prisons (BOP): Mark S. Inch, Director of the BOP; Eian Guy,
Administrator of Inmate Appeals; the unnamed Regional
Director of the North Central Region of the BOP; former
Warden Claude Maye of the U.S. Penitentiary, Leavenworth,
Kansas (USPL); Lieutenant Sweeting, a supervisory officer at
USPL; and Correctional Officer Schwarz at USPL. Plaintiff
also names the Unit Disciplinary Committee at USPL as a
complaint alleges that in 2015, plaintiff was found guilty in
three incident reports. Although he does not detail the
nature of those reports, he states that the sanctions imposed
were brief losses of commissary privileges, telephone use,
and visitation. The reports later were expunged. Plaintiff
alleges that he suffered mental anguish and hardship as a
result of the sanctions.
complaint also alleges that on January 16, 2015, defendant
Schwarz escorted him to the office of defendant Sweeting
where he underwent a strip search. Plaintiff claims that
conducting the strip search in that office violates a liberty
interest established by an unidentified BOP Program
Statement, but he does not identify the specific supporting
facts upon which relies. He seeks damages and costs.
federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental
entity or an officer or employee of such an entity.
See 28 U.S.C. §1915A(a). Following this review,
the court must dismiss any portion of the complaint that is
frivolous, malicious, fails to state a claim upon which
relief may be granted, or seeks monetary damages from a
defendant who is immune from that relief. See 28
U.S.C. § 1915A(b).
screening, a court liberally construes pleadings filed by a
party proceeding pro se and applies “less stringent
standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
avoid a dismissal for failure to state a claim, a complaint
must set out factual allegations that “raise a right to
relief above the speculative level.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court
accepts the well-pleaded allegations in the complaint as true
and construes them in the light most favorable to the
plaintiff. Id. However, “when the allegations
in a complaint, however true, could not raise a [plausible]
claim of entitlement to relief, ” the matter should be
dismissed. Id. at 558. A court need not accept
“[t]hreadbare recitals of the elements of a cause of
action supported by mere conclusory statements.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather,
“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).
Tenth Circuit has observed that the U.S. Supreme Court's
decisions in Twombley and Erickson set out
a new standard of review for dismissals under 28 U.S.C.
§ 1915(e)(2)(B)(ii) dismissals. See Key v.
Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007)(citations
omitted). Following those decisions, 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 internal citations omitted). A plaintiff
“must nudge his claims across the line from conceivable
to plausible.” Smith v. United States, 561
F.3d 1090, 1098 (10th Cir. 2009). In this context,
“plausible” 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 [the] claims
across the line from conceivable to plausible.”
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (citing
Twombly at 1974).
prisoner, plaintiff retains “only a narrow range of
protected liberty interests.” Rezaq v. Nalley,
677 F.3d 1001, 1011 (10th Cir. 2012)(internal
citation omitted). In Sandin v. Connor, 515 U.S.
472, 484 (1995), the United States Supreme Court held that
for a prisoner, a “liberty interest will be generally
limited to freedom from restraint which, while not exceeding
the sentence in such an unexpected manner as to give rise to
protection by the Due Process Clause of its own force,
nonetheless imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison
life.” Id. at 483-84.
Eighth Amendment requires prison officials to “provide
humane conditions of confinement … [and] “take
reasonable measures to guarantee the safety of the
inmates.'” Farmer v. Brennan, 511 U.S.