United States District Court, D. Kansas
Crow U.S. Senior District Judge
pro se civil rights complaint was filed pursuant to 42 U.S.C.
§ 1983 by a former pre-trial detainee of the Trego
County Jail. Plaintiff proceeds in forma pauperis and alleges
that constitutional violations occurred during his pre-trial
confinement. He sues unnamed employees of the Trego County
Jail and the Trego County Sheriff's Department and seeks
$1.5 million dollars, payment of his medical bills, and
compensation for missed work.
initially filed suit against the Trego County Jail. (Doc. 1).
Because a jail is not a person subject to suit under §
1983, however, the court directed plaintiff to file an
amended complaint that names the person or persons whose acts
or omissions violated his federal rights and provides
detailed information specifying how and when each violation
occurred, and the injury caused. (Doc. 5). In response,
plaintiff filed an amended complaint against unnamed
employees of the Trego County Jail and the Trego County
Sheriff's Department. (Doc. 6). Because the complaint
named no individual defendants, the court directed
preparation of a Martinez report.
Allegations in the Complaint
alleges that he had “major surgery” on his leg
shortly before being arrested and confined to the Trego
County Jail (after an initial brief confinement at the Saline
County Jail), where he alleges that he was held in an
unsanitary cell and was provided no cleaning supplies.
Count I, plaintiff claims that despite his request, jail
officials refused to allow him to see a doctor or go to an
emergency room for treatment of his leg, and refused to
provide him with bandages or antibiotic ointment until his
wound “burst” and he was “deathly
ill”. Plaintiff states that he later tested positive
for MRSA, which required IV antibiotic treatments and
additional surgery and caused him to miss work.
Count II, plaintiff alleges that he wrote a letter to his
personal physician which jail officials failed to send and
instead placed the letter with plaintiff's personal
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. §
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 ...