United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
Crow Senior, U.S. District Judge.
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
Nature of the Matter before the Court
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).
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.)
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.
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.
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).