United States District Court, D. Kansas
MEMORANDUM AND ORDER TO SHOW CAUSE
CROW U.S. SENIOR DISTRICT JUDGE
Jesse Counce, a pretrial detainee being held at the Wyandotte
County Detention Center in Kansas City, Kansas, brings this
pro se civil rights action pursuant to 42 U.S.C.
§ 1983. Plaintiff proceeds in forma pauperis.
For the reasons discussed below, Plaintiff is ordered to show
cause why his complaint should not be dismissed.
Nature of the Matter before the Court
complaint (ECF No. 1) alleges misconduct on the part of two
of his appointed defense attorneys, Debra Erickson and Dwight
Alexander, and on the part of the prosecutor, Jose Guerra, in
his pending state prosecution. According to the complaint,
Defendant Erickson was “relieved of duties” as
Mr. Counce's defense attorney due to lack of
communication, comments indicating she was not “in [Mr.
Counce's] favor”, failure to contact any of his
five witnesses, giving exculpatory evidence about
Plaintiff's alibi and witnesses to Prosecutor Guerra,
coming to a hearing with Prosecutor Guerra and giving
Plaintiff an “inappropriate smile”, and stating
she was not going to file any motions in defense of Mr.
Counce. ECF No. 1 at 2, 4, 8, 11. The state court judge then
appointed Defendant Alexander to represent Mr. Counce, and
Defendant Guerra attempted to “prejudice his mind
towards [Mr. Counce]” by mentioning to him a 1994
prosecution of Plaintiff in which he was found not guilty.
Id. at 10. Plaintiff further complains Defendant
Guerra “coerced” the State's main witness at
a preliminary hearing by asking her only “yes and no
questions, ” and Defendant Alexander failed to object.
Id. at 10-11. Finally, Plaintiff complains Defendant
Alexander has also said he is not going to file any motions
on Plaintiff's behalf, and he has not contacted
Plaintiff's witnesses. Id. at 11.
alleges Sixth Amendment ineffective assistance of counsel,
violation of the Kansas Rules of Professional Conduct, and
prosecutorial misconduct. He seeks compensatory damages and
release from jail.
Statutory Screening of Prisoner Complaints
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
employee of such entity to determine whether summary
dismissal is appropriate. 28 U.S.C. § 1915A(a).
Additionally, with any litigant, such as Plaintiff, who is
proceeding in forma pauperis, the Court has a duty to screen
the complaint to determine its sufficiency. See 28
U.S.C. § 1915(e)(2). Upon completion of this screening,
the Court must dismiss any claim that is frivolous or
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary damages from a defendant who is
immune from such relief. 28 U.S.C. §§ 1915A(b),
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).
Counce asks this Court to order his release from jail and to
award him damages for allegedly unconstitutional actions
taken by Defendants in connection with a pending state
criminal prosecution. The Court is prohibited from doing so
under Younger v. Harris,401 U.S. 37, 45
(1971). The Younger abstention doctrine
is based on “notions of comity and federalism, which
Plaintiff's assertions ...