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Campbell v. Sage

United States District Court, D. Kansas

June 6, 2018

BRIAN A. CAMPBELL, Plaintiff,
v.
R.S. SAGE, et al., Defendants.

          MEMORANDUM AND AND ORDER TO SHOW

          SAM A. CROW U.S. SENIOR DISTRICT JUDGE

         Plaintiff Brian A. Campbell, an inmate at the Sedgwick County Jail in Wichita, Kansas, brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. He proceeds in forma pauperis. He has also filed a motion to appoint counsel (Doc. 3). For the reasons discussed below, Plaintiff is ordered to show cause why his complaint should not be dismissed, and his motion is denied.

         I. Nature of the Matter before the Court

         Mr. Campbell's complaint (Doc. 1) alleges his constitutional rights were violated by officers of the Augusta, Kansas Police Department. He claims officers conducted an illegal search and seizure of property on March 9, 2016, leading to further investigation of Plaintiff and his arrest. Plaintiff ultimately plead guilty to criminal use of a credit card without consent of the owner and identity theft and was sentenced to serve 21 months. Plaintiff names as defendants Sergeant R.S. Sage, Captain B.A. Relp, Sergeant E.C. McCluskey, Officer M.T. Mekel, Officer D.L. Strobe, Officer T.R. Tombaugh, and Officer D.K. Keith.

         In Count I of his complaint, Plaintiff alleges that Defendants Meckel and McCluskey ran license plate searches on vehicles parked on his property without legal justification. He further alleges they searched and seized undisclosed property without a warrant.

         In Count II, Plaintiff claims that when he was arrested on May 16, 2016, he was told by Defendant Relp that the Augusta Police Department had been watching his house because “no one knew him” and “you cannot be black in a small town that nobody knows anything about.” According to Plaintiff, Defendant Relp further stated that the Augusta Police Department “had nothing better to do than pick Plaintiff's life apart.” Plaintiff alleges that Defendant Relp and Defendant Sage failed to charge “the white individuals that had committed the same conduct as myself and Cassandra Smith, that are black.”

         In Count III, Plaintiff alleges the Augusta Department of Public Safety violated Plaintiff's constitutional rights by allowing the individual defendants' unlawful conduct to continue.

         Plaintiff asserts Defendants have violated his rights under the Equal Protection Clause of the Fourteenth Amendment, as well as the Fourth and Fifth Amendments. He seeks compensatory damages in the amount of $2.5 million.

         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); 28 U.S.C. § 1915(e)(2)(B).

         “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 ...


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