United States District Court, D. Kansas
GARLAND E. WILLIAMS, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE.
Garland E. Williams brings this action pro se and in forma
pauperis, asserting claims against defendants United States
of America; Martin L.C. Feldman, United States District Judge
for the Eastern District of Louisiana; and Michael B. North,
United States Magistrate Judge for the Eastern District of
Louisiana. Magistrate Judge Teresa J. James reviewed
plaintiff's complaint sua sponte and issued a Report and
Recommendation that the court dismiss plaintiff's case
for failure to state a claim upon which relief can be
granted. Plaintiff timely objected to the Report and
to 28 U.S.C. § 1915(e)(2)(B), the court may dismiss sua
sponte an in forma pauperis action as failing to state a
claim upon which relief may be granted. Whitney v. New
Mexico, 113 F.3d 1170, 1172-73 (10th Cir. 1997); see
also 28 U.S.C. § 1915(e)(2)(B)(ii). Such dismissal
is warranted where it is “patently obvious” that
the plaintiff cannot prevail on the facts alleged and that
amendment would be futile. Whitney, 113 F.3d at 1173
(citations and quotations omitted). The court must determine
“whether the complaint contains ‘enough facts to
state a claim to relief that is plausible on its
face.'” Ridge at Red Hawk, L.L.C. v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570
(2007)). The court will dismiss the complaint if the
complaint does not “give the court reason to believe
that this plaintiff has a reasonable likelihood of
mustering factual support for these claims.”
Id. Plaintiff must “nudge [his] claims
across the line from conceivable to plausible” to avoid
dismissal. Twombly, 550 U.S. at 570.
court is mindful of the fact that plaintiff is proceeding pro
se. Because of plaintiff's pro se status, the court
affords him some leniency in construing his complaint.
Asselin v. Shawnee Mission Med. Ctr., Inc., 894
F.Supp. 1479, 1484 (D. Kan. 1995) (citation omitted). The
court may not, however, assume the role of advocate for
plaintiff simply because he is proceeding pro se. Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The court
should not “construct arguments or theories for the
plaintiff in the absence of any discussion of those
issues.” Drake v. City of Fort Collins, 927
F.2d 1156, 1159 (10th Cir. 1991) (citations omitted). Nor
should the court “supply additional factual allegations
to round out a plaintiff's complaint or construct a legal
theory on a plaintiff's behalf.” Whitney,
113 F.3d at 1173-74 (citation omitted).
complaint lacks any factual basis for relief. As Judge James
noted, plaintiff's complaint is difficult to understand,
including allegations such as: “Fore which reveals
violation of laws-substantial evidence arising from the
imposed; ‘Report and Recommendation's'
stipulation assertion [of] a non-abrogated implied Sua-Sponte
motion acquisition-for-complaint redress dismissal because of
exclaimed . . . .” (Doc. 5, at 12.) His claims are
unclear, and plaintiff does not identify facts sufficient to
show that this court has jurisdiction over his claims.
Plaintiff's objections to Judge James's Report and
Recommendation are no less coherent. For example, plaintiff
argues, “Therefore, with the complaint pleadings facial
attack, the Magistrate judge's report and recommendation
rendering cognizable dissent of finding inconsistency to
complainant's pleading's fact of legal law basis; in
opposition of complainant's pleadings averring advance
procedural evidentiary consistency . . . .” (Doc. 10,
at 6.) At this stage of the case, plaintiff must
“nudge [his] claims across the line from conceivable
to plausible” to avoid dismissal. Twombly, 550
U.S. at 570. He has not done so.
addition, as Judge James noted, venue does not appear proper
in the District of Kansas. Plaintiff and defendants reside in
Louisiana, and the event giving rise to plaintiff's
claims occurred in Louisiana. Any connection to Kansas is
problem with plaintiff's complaint is that any claims
against Judges Feldman and North are barred by judicial
immunity. Henriksen v. Bentley, 644 F.2d, 852, 855
(10th Cir. 1981) (“Judges are absolutely immune from
civil liability for judicial acts, unless committed in the
clear absence of all jurisdiction . . . .”). Likewise,
the United States has immunity, although the court cannot
discern a basis for any claim against the United States.
FDIC v. Meyer, 510 U.S. 471, 475 (1994) (explaining
that the United States is immune from suit absent consent).
Plaintiff has not alleged any facts or circumstances
suggesting that immunity would be denied in this case.
the court finds that amendment would be futile. Even if
plaintiff were to seek to amend to add a factual basis for
his claims, he still could not overcome the hurdles of
immunity and venue.
IS THEREFORE ORDERED that the Report and
Recommendation of Magistrate Judge Teresa J. James (Doc. 8)
IS FURTHER ORDERED that plaintiff's complaint is
dismissed for failure to state a claim under the standards of
Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B).
IS FURTHER ORDERED that plaintiff's motion for
summons authorization and appointment of process server (Doc.
12) is denied as moot.
case is closed. The Clerk of Court is directed to enter
judgment against ...