United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW
Crow U.S. Senior District Judge
Charley Hughes is hereby required to show good cause, in
writing, to the Honorable Sam A. Crow, United States District
Judge, why this case should not be dismissed due to the
deficiencies in Plaintiff's Complaint that are discussed
Nature of the Matter before the Court
alleges that the following occurred while he was an inmate at
the Hutchinson Correctional Facility in Hutchinson, Kansas
(“HCF”). Plaintiff alleges that Defendants
conspired to deem the NABPP (“New Afrikan Black Panther
Party”) a security threat group (“STG”).
Plaintiff alleges that he, along with several other inmates,
was taken to segregation on July 24, 2017, under
investigation for STG activities. Plaintiff alleges that the
inmates marched into the building in a military fashion,
putting their fist in the air while stating: “Dare to
Struggle! Dare to Win! All Power to the People! By any Means
Necessary!” The inmates were released back to general
population a week later, and received write-ups from
Defendant Robinson for the marching incident.
alleges that on August 9, 2017, the inmates' cells were
searched by Defendant Robinson and an unknown SST member. All
of Plaintiff's political books and other literature were
confiscated and deemed STG material.
alleges that the inmates were found guilty by the hearing
officer and returned to segregation. Plaintiff alleges that
Defendant Schnurr conspired with Defendant Robinson, and
Defendant Nickles failed to prevent the wrongs allegedly
committed by Robinson. Plaintiff alleges that Defendant
Norwood denied Plaintiff's DR appeal.
seeks $50, 000 in compensatory damages, $5, 000 in punitive
damages, and a preliminary injunction allowing the NABPP to
function as a political/social organization without being
labeled an STG. Plaintiff names as Defendants: Troy Robinson,
EAI at HCF; Dan Schnurr, HCF Warden; Mike Nickles, UTM at
HCF; and Joe Norwood, Secretary of Corrections, KDOC.
Plaintiff sues all Defendants in their individual capacities.
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).