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McCorkendale v. Norwood

United States District Court, D. Kansas

May 25, 2018

JOE NORWOOD., et al., Defendants.


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

         Plaintiff Scott McCorkendale 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 herein.

         I. Nature of the Matter before the Court

         Plaintiff filed this civil rights action alleging the “mistreatment” of him and similarly-situated inmates at the Oswego Correctional Facility (the El Dorado Correctional Facility-Oswego in Oswego, Kansas). Plaintiff claims that “defendants” are “falsifying disciplinary reports, physically injuring inmates without justification, and committing other unlawful acts against plaintiff and others, and have no adequate Grievance procedure in place to resolve inmate complaints about their unlawful actions.” (Doc. 1, at 2.)

         Plaintiff alleges that on July 28, 2017, Defendant Brenner issued a Disciplinary Report against Plaintiff for insubordination or disrespect to an officer or other employees for allegedly violating Kan. Admin. Reg. 44-12-305. Plaintiff alleges that Defendant Brenner “falsified the disciplinary action” against Plaintiff.

         Plaintiff alleges that “Defendants” regularly: deprive Plaintiff and other similarly-situated inmates of property without due process; discriminate against inmates on the basis of race by subjecting non-white inmates to disciplinary segregation, forfeiture of good time credits, deprivation of property, and deprivation of privileges and custody classification, at a rate greatly disproportionate to white inmates; unjustly deny parole or good time credits; subject inmates to emotional, psychological and physical abuse; fail to answer grievances and retaliate against inmates filing complaints.

         Plaintiff provides an example of an alleged instance of abuse by Defendant Brenner regarding placing handcuffs on another inmate. Plaintiff alleges that “one or more” of the other Defendants contributed to the unlawful actions by acting directly or turning a deaf ear to the actions of others. Plaintiff alleges that he “has suffered serious emotional and psychological abuse.” Plaintiff alleges in Count I violations of the Eighth and Fourteenth Amendments. Plaintiff alleges as Count II, violations of the Kansas Tort Claims Act. As Count III, Plaintiff alleges a First Amendment violation for Defendants' failure to provide an adequate and effective grievance procedure. Plaintiff also alleges a conspiracy. Plaintiff names as Defendants: Joe Norwood, Secretary of Corrections of the State of Kansas; (fnu) Miller, Deputy Warden; (fnu) Rion, Security Supervisory Staff; (fnu) Philbrick, Security Supervisory Staff; (fnu) Henley, Captain; (fnu) Zenk, Lt.; (fnu) Spencer, Lt.; (fnu) Harris, Staff Sgt.; (fnu) Snyder, Staff Sgt.; (fnu) Pettit, Staff Sgt.; (fnu) Kepner, Guard; (fnu) Brenner, Guard; and John and Jane Does.

         Plaintiff seeks declaratory relief, a preliminary and permanent injunction, compensatory damages of $10, 000 from each defendant, and punitive damages against each defendant in the amount of $10, 000. Plaintiff also seeks to have the employment of Defendants Brenner and Kepner terminated.

         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).


         1. Eleventh ...

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