United States District Court, D. Kansas
DANIEL W. KINARD, Plaintiff,
NICOLE ENGLISH, Warden, USP-Leavenworth, et al., Defendants.
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
CROW, SENIOR U.S. DISTRICT JUDGE
Daniel W. Kinard is hereby required to show good cause, in
writing, to the Honorable Sam A. Crow, United States District
Judge, why this action should not be dismissed due to the
deficiencies in Plaintiff's Complaint (Doc. 8) that are
Nature of the Matter before the Court
filed this pro se civil rights action while in federal
custody at USP-Leavenworth in Leavenworth, Kansas. Plaintiff
challenges the warden's compliance with Federal Bureau of
Prison's (“BOP”) policies in failing to
remove three points from his custody classification for
“History of Escape.”
was arrested on July 23, 1989, in Washington D.C. Plaintiff
is alleged to have escaped from a CCA van on July 24, 1999.
In 2002, Plaintiff was transferred to BOP custody. In 2006
the BOP changed their custody procedures and stopped holding
Plaintiff responsible for the alleged escape because he was
not given a state disciplinary proceeding regarding the
escape. Plaintiff alleges that the procedures are no longer
being followed, and that the BOP refuses to correct the
warden's failure to follow BOP procedures in Program
Statement 5100.08 regarding custody classification. Plaintiff
seeks injunctive relief and compensatory damages.
Statutory Screening of Prisoner Complaints
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. §
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 ‘entitle[ment] 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).
Process Clause protects against “deprivations of life,
liberty, or property; and those who seek to invoke its
procedural protection must establish that one of these
interests is at stake.” Wilkinson v. Austin,
545 U.S. 209, 221 (2005). “A liberty interest may arise
from the Constitution itself, by reason of guarantees
implicit in the word ‘liberty,' . . . or it may
arise from an expectation or interest created by state laws
or policies.” Id. (citing Vitek v.
Jones, 445 U.S. 480, 493-94 (1980) (liberty interest in
avoiding involuntary psychiatric treatment and transfer to
mental institution); Wolff v. McDonnell, 418 U.S.
539, 556-58 (1974) (liberty interest in avoiding withdrawal
of state-created system of good-time credits)).
interests which are protected by the Due Process Clause are
“generally limited to freedom from restraint which,
while not exceeding the sentence in such an unexpected manner
as to give rise to protection by the Due Process Clause of
its own force . . . nonetheless imposes atypical and
significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Sandin v.
Conner, 515 U.S. 472, 484 (1995) (internal citations
omitted). Plaintiff does not have a constitutional right to a
particular security classification or to be housed in a
particular yard. Mecahum v. Fano, 427 U.S. 215, 224
(1976); Harbin-Bey v. Rutter, 420 F.3d 571, 577 (6th
Cir. 2005) (increase in security classification does not