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Bailey v. State

United States District Court, D. Kansas

April 20, 2018

BRIGHAM J. BAILEY, Plaintiff,
v.
STATE OF KANSAS, et al., Defendants.

          MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE

          Sam A. Crow U.S. Senior District Judge

         Order This matter is before the Court for screening of Plaintiff's Amended Complaint. On February 2, 2018, the Court entered an Order (Doc. 8) giving Plaintiff the opportunity to file a complete and proper amended complaint upon court-approved forms. The Order noted that Plaintiff's original complaint joined various unrelated claims, including allegations regarding: false affidavits signed by Grandview Plaza police officers on October 21 and 26, 2016; an interception of legal mail at the Geary County Detention Center (“GCDC”) on January 25, 2017; a denial of medical care at the GCDC on April 27, 2017; GCDC staff falsifying a sleep study between March 15 to March 18, 2017; and the performance of his public defender in his state criminal proceeding. The Order cautioned Plaintiff that he must follow Rules 20 and 18 of the Federal Rules of Civil Procedure when filing an amended complaint.

         Plaintiff responded by filing a Motion to Unjoin and Join Parties (Doc. 10) and an Amended Complaint (Doc. 11). To the extent Plaintiff's motion to unjoin and join parties merely seeks to dismiss defendants that were named in his original complaint, and to add defendants named in his Amended Complaint, the motion is granted.

         I. Nature of the Matter before the Court

         Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. The Court granted Plaintiff leave to proceed in forma pauperis. At the time of filing, Plaintiff was a pretrial detainee at GCDC. Plaintiff is currently incarcerated at the Norton Correctional Facility in Norton, Kansas (“NCF”).

         Plaintiff names as Defendants the State of Kansas; Shawn Peirano, Grandview Plaza Police Chief; Michael Rivera, Grandview Plaza Police Officer; Keaton Landry, Grandview Plaza Police Officer; Dan Breci, Junction City Police Chief; and Michelle Brown, Assistant Geary County Attorney. Plaintiff sues the State of Kansas in its official capacity, and sues the remaining Defendants in their individual capacities.

         Plaintiff's claims relate to his state court criminal proceeding for aggravated battery and knowingly causing great bodily harm or disfigurement, involving injuries to Plaintiff's infant child. Plaintiff alleges that the defendant officers submitted perjurious and slanderous police reports in connections with his state criminal proceeding. Plaintiff claims that defendants' statements in the police reports or Law Enforcement Affidavits include “multiple false and slanderous, and other malicious, cruel and degrading statements, including statements [they] are not qualified to make.” Plaintiff also claims the statements are “hypocritical and contradicting.” Plaintiff alleges that Defendants Peirano and Breci, as Chiefs of Police, and Defendant Rivera, as Police Captain, are liable as supervisors for failing to intervene to stop the actions of their respective officers. Plaintiff alleges that police officers Landry and Brown personally participated in the violation of federal and state laws by making unlawful and unreasonably intrusive statements on their police reports. Plaintiff alleges that Defendant Brown, Assistant Geary County Attorney, “made unlawful and unreasonably intrusive statements, and lacked making reasonable statements to a judge.” Plaintiff alleges that Defendant Brown allowed false and perjurious police reports to be admitted into evidence; misrepresented the condition of the infant child at a bond hearing; and failed to make reasonably diligent efforts to comply with a discovery request.

         Plaintiff brings Count I against the State of Kansas, citing Kan. Stat. Ann. § 22-2907 and stating that “[t]he State of Kansas does not enforce among the counties to adopt policies for a diversion program.” (Doc. 11, at 3.) Plaintiff brings Count II against Defendants Peirano, Rivera and Landry, for slander, perjury, and violations of the Fourteenth Amendment and of paragraph II of the Kansas Bill of Rights. Plaintiff brings Count III against Defendants Brown and Breci, for slander, perjury, violations of the Fifth and Fourteenth Amendments, and paragraph 1, 6, and 11 of the Kansas Bill of Rights. Plaintiff brings Count IV against Defendant Brown for perjury and slander. Plaintiff seeks to have this action certified as a class action, compensatory damages, punitive damages, and a declaratory judgment.

         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 ...


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