United States District Court, D. Kansas
NOTICE AND ORDER TO AMEND THE COMPLAINT
SAM A.
CROW U.S. SENIOR DISTRICT JUDGE.
This
matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff, a pretrial detainee, proceeds pro se
and seeks leave to proceed in forma pauperis.
The
nature of the case
The
complaint names as defendants the City of Salina, Kansas; a
state district judge; the district attorney of Saline County,
Kansas; and the Salina Police Department (SPD). Plaintiff
alleges the city water supply contains toxins, and he claims
that after he “blew the whistle” on procurement
fraud contracts, he has been a victim of
“gangstalking” and “community
mobbing”. He claims the defendant judge has stayed his
proceedings during his placement at the Larned State Hospital
(LSH). He attributes this to retaliation, and he claims he
exposed the judge in the course of his whistle-blowing
activities. He claims it is a conflict for the defendant to
preside in his cases, and he alleges that he is “in
immediate direct danger” of being injected with
medications.
Plaintiff
seeks damages from the City for injury caused by the
allegedly contaminated drinking water, he seeks damages from
the SPD for an allegedly unlawful arrest and charges in the
cases before the defendant district judge, and he seeks
damages from the judge for his alleged participation in the
community mobbing against him, for his manipulation of the
cases involving plaintiff, and for his abuse of discretion in
ordering plaintiff to the LSH and in staying his cases while
he is placed there.
The
motion to proceed in forma pauperis
This
motion is governed by 28 U.S.C. § 1915(b). Because
plaintiff is a prisoner, he must pay the full filing fee in
installment payments taken from his prison trust account when
he “brings a civil action or files an appeal in forma
pauperis[.]” § 1915(b)(1). Pursuant to §
1915(b)(1), the court must assess, and collect when funds
exist, an initial partial filing fee calculated upon the
greater of (1) the average monthly deposit in his account or
(2) the average monthly balance in the account for the
six-month period preceding the filing of the complaint.
Thereafter, the plaintiff must make monthly payments of
twenty percent of the preceding month's income in his
institutional account. § 1915(b)(2). However, a prisoner
shall not be prohibited from bringing a civil action or
appeal because he has no means to pay the initial partial
filing fee. § 1915(b)(4).
The
Court has examined the financial records submitted by the
plaintiff and finds that the average balance in his
institutional account was $46.60 and the average deposit was
$140.15.[1] The Court therefore assesses an initial
partial filing fee of $28.00, twenty per cent of the average
deposit. Plaintiff will be directed to submit that amount and
remains obligated to pay the full filing fee of $350.00 in
installments.
Screening
A
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).
In
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).
To
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
(1988)(citations omitted).
To
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).
The
Tenth Circuit has observed that the U.S. Supreme Court's
decisions in Twombly 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 ...