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Montgomery v. Markos

United States District Court, D. Kansas

May 1, 2018

ALPHONSO MONTGOMERY, JR., Plaintiff,
v.
TERESA MARKOS, et al., Defendants.

          MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE

          Sam A. Crow, U.S. Senior District Judge.

         Order 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.

         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 housed at the Norton Correctional Facility in Norton, Kansas. Plaintiff filed an Amended Complaint (Doc. 6) on December 6, 2017.

         Plaintiff 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.

         Plaintiff 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 release.

         As 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.

         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 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).

         III. ...


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