United States District Court, D. Kansas
NOTICE AND ORDER TO SHOW CAUSE
CROW U.S. SENIOR DISTRICT JUDGE
matter is a civil rights action filed under 42 U.S.C. §
1983. Plaintiff, a pretrial detainee, proceeds pro se and
seeks leave to proceed in forma pauperis.
motion to proceed in forma pauperis
motion is governed by 28 U.S.C. § 1915(b). Because
plaintiff is a prisoner, he must pay the full filing fee in
installment payments taken from his prison trust account when
he “brings a civil action or files an appeal in forma
pauperis[.]” § 1915(b)(1). Pursuant to §
1915(b)(1), the court must assess, and collect when funds
exist, an initial partial filing fee calculated upon the
greater of (1) the average monthly deposit in his account or
(2) the average monthly balance in the account for the
six-month period preceding the filing of the complaint.
Thereafter, the plaintiff must make monthly payments of
twenty percent of the preceding month's income in his
institutional account. § 1915(b)(2). However, a prisoner
shall not be prohibited from bringing a civil action or
appeal because he has no means to pay the initial partial
filing fee. § 1915(b)(4).
Court has examined the financial records supplied by the
plaintiff and finds that during the four months he had a
negative average account balance and an average deposit of
$36.25. The Court therefore assesses an initial partial
filing fee of $7.00, twenty percent of the average deposit,
rounded to the lower half dollar. Plaintiff will remain
obligated to pay the balance of the $350.00 filing fee in
installments calculated under 28 U.S.C. § 1915(b)(2).
federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental
entity or an officer or employee of such an entity.
See 28 U.S.C. §1915A(a). Following this review,
the court must dismiss any portion of the complaint that is
frivolous, malicious, fails to state a claim upon which
relief may be granted, or seeks monetary damages from a
defendant who is immune from that relief. See 28
U.S.C. § 1915A(b).
screening, a court liberally construes pleadings filed by a
party proceeding pro se and applies “less stringent
standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
state a claim for relief under Section 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, 48-49
avoid a dismissal for failure to state a claim, a complaint
must set out factual allegations that “raise a right to
relief above the speculative level.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court
accepts the well-pleaded allegations in the complaint as true
and construes them in the light most favorable to the
plaintiff. Id. However, “when the allegations
in a complaint, however, true, could not raise a [plausible]
claim of entitlement to relief, ” the matter should be
dismissed. Id. at 558. A court need not accept
“[t]hreadbare recitals of the elements of a cause of
action supported by mere conclusory statements.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather,
“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).
Tenth Circuit has observed that the U.S. Supreme Court's
decisions in Twombly and Erickson set out a
new standard of review for dismissals under 28 U.S.C. §
1915(e)(2)(B)(ii) dismissals. See Key v. Bemis, 500
F.3d 1214, 1218 (10th Cir. 2007)(citations omitted).
Following those decisions, 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 (quotation marks and internal
citations omitted). A plaintiff “must nudge his claims
across the line from conceivable to plausible.”
Smith v. United States, 561 F.3d 1090, 1098 (10th
Cir. 2009). In this context, “plausible” 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 [the] claims across the line from
conceivable to plausible.” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (citing Twombly
complaint names three defendants: Major Mark Anderson and
Captain Regalado of the Geary County Detention Center and the
Geary County Detention Center. The detention center is not a
“person” subject to a suit under § 1983.
See Will v. Mich. Dept. of State Police, 491 U.S.
58, 64, 71 (1989)(neither a state nor a state agency is a
“person” which can be sued under § 1983).
Therefore, the Geary County Detention Center is not a proper
defendant and is subject to dismissal from this action.
complaint presents three counts: In Count 1, plaintiff
alleges a denial of religious materials. He asserts that the
chaplain knows that he is Muslim but refused to provide him
with appropriate religious materials. In Count 2, plaintiff
alleges he was denied legal copies by unnamed jail ...