United States District Court, D. Kansas
NOTICE AND ORDER TO SHOW CAUSE
CROW U.S. Senior District Judge
matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff proceeds pro se and in forma pauperis.
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).
state a claim for relief under Section 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, 48-49
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).
is incarcerated at the Reno County Correctional Facility. He
alleges that in March 2018, a single item of his legal mail
was opened outside his presence and was delivered to him five
days after its postmark. Plaintiff states that he reported
this to a sergeant at the facility who acknowledged that it
was an error and agreed to look into the circumstances.
seeks the dismissal of pending criminal charges, relief from
sentences imposed in two criminal cases, unspecified damages,
Court has considered the complaint and has identified certain
to establish a cause of action under § 1983, plaintiff
must allege the deprivation of a federal right by a person
acting under color of state law. Gomez v. Toledo,
446 U.S. 635, 650 (1980). “Personal participation is an
essential allegation in a § 1983 claim.”
Bennett v. Passic, 545 F.2d 1260, 1262-63
(10th Cir. 1976). Here, plaintiff has not named a
proper party because he does not identify an individual
defendant; he names only the Sheriff's Department and the
Reno County Correctional Facility. Neither of these entities
is a suable entity in an action under § 1983.
the single instance of opened mail identified here, without
more, is insufficient to state a claim for relief of
interference with plaintiff's right of access to the
courts. To state a plausible claim, a prisoner plaintiff
“must demonstrate actual injury from interference with
his access to the courts - that is that the prisoner was
frustrated or impeded in his efforts to pursue a nonfrivolous
legal claim concerning his conviction or his conditions of
his confinement.” Gee v. Pacheco, 627 F.3d
1178, 1191 (10th Cir. 2010). See also Smith v.
Maschner, 899 F.2d 940, 844 (10th Cir.
1990)(holding that the isolated incident of a jail official
opening a prisoner's legal mail “without any
evidence of improper motive or resulting interference with
[the prisoner's] right … of access to the courts,
[did] not give rise to a constitutional violation.”),
Elrod v. Swanson, 478 F.Supp.2d 1252, 1275 (D. Kan.
2007)(dismissing claim where plaintiff claimed legal mail was
improperly opened but showed no injury and alleged only error
in the opening of his mail); and Thompson v. Hooper,
2006 WL 1128692 *4 (D. Kan. ...