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Johnson v. Barnes

United States District Court, D. Kansas

July 13, 2018

ANTHONY K. JOHNSON, Plaintiff,
v.
LINDA BARNES, et al., Defendants.

          MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE

          Sam A. Crow U.S. Senior District Judge

         Plaintiff Anthony K. Johnson., an inmate at the Riley County Jail in Manhattan, Kansas, brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. The Court granted his motion to proceed in forma pauperis and assessed an initial partial filing fee of $4.00. Plaintiff filed a response (Doc. 6), indicating that he does not have funds available to pay the partial fee. The Court will grant a waiver of the initial partial filing fee. For the reasons discussed below, Plaintiff is ordered to show cause why his Complaint should not be dismissed.

         I. Nature of the Matter before the Court

         Plaintiff's allegations in his Complaint involve his state criminal proceedings. See No. 2016-cr-000297 in Geary County District Court. Plaintiff alleges in his Complaint (Doc. 1) that on April 3 or 4, 2016, he was sleeping in the passenger seat of a rental car parked outside of the Super 8 Motel on Washington Street in Junction City, Kansas. Plaintiff's friend, Amanda Bluthardt Silva, was sleeping in the driver's seat. Two police officers arrived around seven or eight a.m. in response to a call for a welfare check. The officers questioned Plaintiff and Silva, and when an officer claimed he saw a gun in the car they ordered Plaintiff and Silva out of the car. The officers denied Plaintiff's request to grab his pants and shoes out of the car and to use the restroom in the motel. Plaintiff was placed in handcuffs and searched. Plaintiff attempted to run with the handcuffs on and the officers tackled him, threw him to the ground, wrapped him in a “restraint blanket” and threw Plaintiff in the police car.

         Plaintiff was held on charges of drug possession, weapons possession and battery on a law enforcement officer. Silva was charged with drug and weapons possession. Silva's attorney filed a motion to suppress the alleged illegal search and seizure, and her case was dismissed. Plaintiff's attorney, Defendant Linda Barnes, did not file a motion. Barnes told Plaintiff it would take a month to hear such a motion, and encouraged Plaintiff to accept a plea deal if he wanted to go home right away. Plaintiff entered a plea agreement and everything prior to his alleged battery of a law enforcement officer was dropped.

         Plaintiff alleges illegal search and seizure and wrongful imprisonment. Plaintiff claims his attorney, Linda Barnes, coerced him into accepting a plea deal and provided ineffective assistance of counsel. Plaintiff claims malicious prosecution by District Attorney Steve Opat. Plaintiff names as Defendants: Linda Barnes, Public Defender; Steve Opat, District Attorney; the Geary County Police Department; (fnu) Campbell, Geary County Police Officer; (fnu) Cathey, Geary County Police Officer; and the Geary County Sheriff's Department. Plaintiff seeks to have his battery on a law enforcement officer charges removed from his record, and compensation for lost time and wages, and slandering his name.

         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. Discussion

         1. Request to have His State Criminal ...


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