United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
Crow, U.S. Senior District Judge.
Plaintiff Alphonso Montgomery, Jr., is hereby required to
show good cause, in writing, to the Honorable Sam A. Crow,
United States District Judge, why this action should not be
dismissed due to the deficiencies in Plaintiff's Amended
Complaint that are discussed herein.
Nature of the Matter before the Court
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 housed at the Norton Correctional Facility in Norton,
Kansas. Plaintiff filed an Amended Complaint (Doc. 6) on
December 6, 2017.
alleges that on April 9, 2016, charges were filed against him
in the Johnson County District Court. On April 11, 2016, bond
was set at $25, 000. Plaintiff's request for bond
modification was denied. On May 27, 2016, Plaintiff's
request for bond modification was “denied in
part” and was reduced to $15, 000 with conditions
“house arrest, gps, remote breathe unit.” On
September 1, 2016, Plaintiff's request for bond
modification was denied, and the “state provided
evidence on behalf of co-defendants to collect and attempt to
collect a debt during the criminal proceedings.” On
October 5, 2016, Plaintiff's bond modification request
was denied with “more testimony regarding the debt on
behalf of co-defendants.” Plaintiff arranged to pay the
debt and required defendants to put in writing the agreement
details regarding the satisfied debt and “direct link
to Plaintiff's release from jail.” On October 21,
2016, bond modification was granted, reducing bond from $15,
000 to $10, 000. On November 7, 2016, bond was successfully
posted and the debt paid.
alleges in his Amended Complaint that the Defendants
conspired together to deprive Plaintiff of his constitutional
rights. Plaintiff alleges that Defendants emailed each other
in an attempt to act as a “debt collector.”
Plaintiff alleges that Defendants corresponded outside of
court, and improperly used the criminal procedure in an
attempt to collect a debt. Plaintiff alleges that, as a
result, Plaintiff was denied the due process of a civil
procedure to question the validity of the debt. Plaintiff
alleges that he was imprisoned as a result of Defendants'
requirement that he satisfy the prior debt as a condition of
Count I, Plaintiff alleges conspiracy. Plaintiff alleges
“abuse of process with deliberate indifference”
as Count II. Plaintiff alleges as Count III, a violation of
the Fair Debt Collection Practices Act. Plaintiff names as
Defendants: Teresa Markos, Supervisor/Senior Case Manager at
Johnson County Department of Corrections Residential Center,
sued in her individual and official capacity; Sara L. Walton,
Johnson County Assistant District Attorney, sued in her
individual capacity; and Johnson County Department of
Corrections, also known as Board of County Commissioners of
Johnson County, Kansas. Plaintiff seeks a declaratory
judgment, punitive damages, compensatory damages, injunctive
relief, and the discharge of any remaining debt.
Statutory Screening of Prisoner Complaints
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 conduct, much of it innocent, ” then the
plaintiff has not “nudged [his] claims across the line
from conceivable to plausible.” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing
Twombly, 127 S.Ct. at 1974).