United States District Court, D. Kansas
MEMORANDUM AND ORDER TO SHOW CAUSE
CROW, U.S. SENIOR DISTRICT JUDGE
James Dylan Coffman, an inmate at the Saline County Jail in
Salina, 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 he was sexually harassed and
assaulted at the Saline County Jail. Plaintiff states that on
the afternoon of November 28, 2018, he had just gotten his
hair cut and asked Officer Shankle to open his cell door.
Officer Shankle responded, “'You must do something
for me.” Plaintiff took this as a sexually suggestive
comment and replied, “What do you mean, sir?”
Officer Shankle allegedly replied that Plaintiff should let
“Roberts” cut a representation of male genitalia
into his (Plaintiff's) hair. Plaintiff does not include
any additional factual allegations.
names as defendants Officer Shankle and the Saline County
Jail. He claims violation of his rights under the Eighth
Amendment and the Prison Rape Elimination Act (PREA) and
seeks compensatory damages of $500, 000 for pain and
suffering, mental anguish and duress.
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).
Complaint is subject to dismissal for two primary reasons.
First, the conduct of which Plaintiff complains does not
reach the magnitude of a constitutional violation as required
to state a claim under § 1983. A prisoner alleging a
constitutional claim of sexual harassment must allege facts
to establish the objective and subjective components of an
Eighth Amendment violation. Joseph v. Fed. Bureau of
Prisons, 232 F.3d 901 (Table), 2000 WL 1532783, at *1
(10th Cir. 2000); see also, e.g., Barney v.
Pulsipher, 143 F.3d 1299, 1310 & n.10, 1312 n.15
(10th Cir. 1998). For the objective component, the plaintiff
must allege facts to show that the harassment was
objectively, sufficiently serious, causing an
“unnecessary and wanton infliction of pain.”
Joseph, 2000 WL 1532783, at *1-2 (internal quotation
marks omitted) (citing Farmer v. Brennan, 511 U.S.
825, 834 (1994); Whitley v. Albers, 475 U.S. 312,
319 (1986); Freitas v. Ault, 109 F.3d 1335, 1338
(8th Cir. 1997)). As to the subjective component, the
plaintiff must allege facts to show that the defendant acted
with “‘deliberate indifference' to a
substantial risk of serious harm to an inmate.”
Barney, 143 F.3d at 1310 (quoting Farmer,
511 U.S. at 834); see also Joseph, 2000 WL 1532783,
as here, a prisoner alleges a guard made inappropriate or
suggestive comments but did not touch him, courts have
generally found the harassment was not sufficiently serious
to meet the objective component of an Eighth Amendment claim.
See, e.g., Barney, 143 F.3d at 1310 n.11 (noting
that allegation of “severe verbal sexual harassment and
intimidation” alone-in the absence of sexual
“assault[ ]”-is insufficient to state an Eighth
Amendment claim); Austin v. Terhune,367 F.3d 1167,
1171 (9th Cir. 2004) (“Although prisoners have a right
to be free from sexual abuse, whether at the hands of fellow
inmates or prison guards, ... the Eighth Amendment's
protections do not necessarily extend to mere verbal sexual
harassment.” (internal citation omitted)); Howard
v. Everett,208 F.3d 218 (Table), 2000 WL 268493, at *1
(8th Cir. 2000) (unpublished) (sexual harassment consisting
of comments and gestures, absent contact or touching,
“does not constitute unnecessary and wanton infliction
of pain”); Boddie v. Schnieder,105 F.3d 857,
861 (2d Cir. 1997) (isolated episodes of harassment and
touching although “despicable, ” do not rise to
level of Eighth Amendment violation). The Tenth Circuit has
found that “[m]ere verbal threats or harassment do not
rise to the level of a constitutional ...