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Villela v. Weishaar

United States District Court, D. Kansas

February 22, 2019

CHRISTOPHER VILLELA, Plaintiff,
v.
A.J. WEISHAAR, et al., Defendants.

          MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE

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

         Plaintiff Christopher Villela is hereby required to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why his unlawful search and seizure claim should not be stayed pending resolution of his state criminal proceedings.

         I. Nature of the Matter before the Court

         Plaintiff brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. The Court entered an Order (Doc. 35) on October 16, 2018, granting Plaintiff until November 19, 2018, to respond to the Court's Notice and Order to Show Cause at Doc. 10 (“NOSC”). The Order also granted Plaintiff until November 19, 2018, in which to file a complete and proper second amended complaint to cure all the deficiencies set forth in the NOSC. This matter is before the Court for screening of Plaintiff's Second Amended Complaint (Doc. 37).

         Plaintiff alleges that on December 22, 2015, at 3:06 a.m., Defendants Lahann, Weishaar and Ingram violated Plaintiff's constitutional rights: when Officer Lahann pulled Plaintiff's wallet out of his back pocket to identify Plaintiff; when Officers Weishaar, Lahann and Ingram used excessive force when Weishaar tasered Plaintiff three times; and by failing to give Plaintiff medical attention after the incident. Plaintiff alleges that on December 24, 2015, at the Reno Correctional Facility, he informed “several supervisory officials within the Hutchinson community” about Plaintiff's complaints. Plaintiff alleges that he informed Defendants Pickard and Yingling that Plaintiff's rights were violated and that his arrest “was unjust or did not meet valid statutes in order to make arrest in curtilage of home and arrestee has standing to challenge search & seizure of his own person & denial of medical attention.” (Doc. 37, at 6.)

         Plaintiff alleges that discovery will provide evidence that the owner of the premises did not give officers “invite” into the home on the night in question. Plaintiff states that the officers' recording devices will confirm whether or not permission to enter the home was given. Plaintiff alleges that his criminal No. 15-cr-1097 has been resolved and a plea agreement was entered.

         Plaintiff names as Defendants: Officers Weishaar, Lahann and Ingram; Patrolman/Officer B.W. Carey; and Lieutenants Jason Yingling and Thad Pickard. Plaintiff seeks a declaratory judgment stating that Defendants violated Plaintiff's constitutional rights and “constituted standing to challenge search & seizure, misuse of excessive force, & denial or & negligence.” (Doc. 37, at 7.) Plaintiff also seeks compensatory and punitive damages.

         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 ‘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.

         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. ...


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