Shelton v. City of Salina

          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 ...