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Bell v. Ratz

United States District Court, D. Kansas

January 15, 2019

STEVEN BELL, Plaintiff,
DONALD RATZ, et al., Defendants.


          Sam A. Crow U.S. Senior District Judge.

         Plaintiff Steven Bell 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 that are discussed herein. Plaintiff is also given the opportunity to file a complete and proper amended complaint that cures all the deficiencies discussed herein.

         I. Nature of the Matter before the Court

         Plaintiff proceeds pro se in this prisoner civil rights action. The Court grants Plaintiff's motion for leave to proceed in forma pauperis (Doc. 2). At the time of filing, Plaintiff was in federal custody at USP Leavenworth in Leavenworth, Kansas (“USPL”). On May 9, 2018, Plaintiff was placed in the SHU under investigation for suspicion of possession of K2. On September 10, 2018, Plaintiff was “kicked out” of the SHU and placed on a restricted punishment unit C2, all before his lab results came back. On September 26, 2018, the DHO sentenced Plaintiff to thirty days in the SHU for possession of K2. Plaintiff served over six months in the SHU. Plaintiff alleges that inmates are subjected to disciplinary sanctions prior to being found guilty because the warden will not purchase instant test kits.

         Plaintiff alleges that on October 2, 2018, a representative from the regional offices of the Bureau of Prisons (“BOP”) did a “walk through” of the SHU at USPL. Plaintiff inquired about his surgery and why his attempts to exhaust his administrative remedies were being ignored. Lieutenant Ratz retaliated against Plaintiff for talking to the BOP representative. Plaintiff was placed “on paper” for allegedly having a clothesline. Plaintiff was placed in a hard cell with no heat, his radio was broken, and his Bible, other books, headphones, pens[1] and other property were confiscated. Plaintiff did not receive a confiscation form. Plaintiff alleges that on November 1, 2018, he was placed on a wing where no inmates are housed because it is extremely cold. Lieutenant Ratz placed Plaintiff in a hard cell in retaliation for Plaintiff's hunger strike.

         Plaintiff also alleges that CO Orellana retaliated against him by refusing to give Plaintiff his lunch tray, conducting a shakedown of his cell and taking Plaintiff's property, and placing him on restricted shower. Plaintiff alleges that he has been in the hard cell for two weeks, and medical refuses to see him or provide him with sterile water to flush his sinuses as prescribed by his surgeon.

         Plaintiff names as Defendants Warden English; Lieutenant Ratz; CO Orellana; (fnu) (lnu) SHU staff; and DHO Bryant. Plaintiff seeks injunctive relief; $100, 000 in punitive damages for each count; and $1, 000, 000 for emotional, mental, and psychological damages on each count.

         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. ...

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