United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
CROW SENIOR U.S. DISTRICT JUDGE
Eddie Lee is hereby required to show good cause, in writing,
to the Honorable Sam A. Crow, United States District Judge,
why this case 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 proper
amended complaint to cure the deficiencies discussed herein.
Nature of the Matter before the Court
Plaintiff brings this pro se civil rights action
pursuant to Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971). At the
time of filing, Plaintiff was incarcerated at USP-Leavenworth
in Leavenworth, Kansas (“USPL”), and was
subsequently released from incarceration. The Court granted
Plaintiff leave to proceed in forma pauperis. Plaintiff names
as Defendants: Warden English; Officer B. Helm; and (fun)
(lnu) unidentifiable Administrative Staff. Plaintiff seeks
compensatory damages and injunctive relief.
alleges that he was denied due process and subjected to
inhumane treatment and unsanitary living conditions at USPL.
Plaintiff alleges that on August 8, 2018, Officer Helm
refused to secure Plaintiff's locker, resulting in the
loss of his property. Plaintiff alleges that Helm was
supposed to secure Plaintiff's cell and send his property
to the SHU, but failed to do so. Plaintiff alleges that he
has made multiple pleas to Lt. Ratz and property officer
Miers and they have failed to listen or to attempt to locate
Plaintiff's personal items.
also alleges that Health Services denied him medical
attention. Plaintiff alleges that on September 22, 2018, he
was placed in a cell with black mold, causing him to start
having complications with extreme shortness of breath.
Plaintiff alleges that he was not allowed to seek immediate
medical attention or “first aid from [his] asthma
inhaler” which he is supposed to have on him at all
times. Plaintiff alleges that there are no emergency response
buttons in the cells and due to the “blatant
negligence” of BOP staff he suffered physical and
also alleges that after seeing a DHO on August 22, 2018, an
“unidentifiable administrative staff” refused to
release Plaintiff back to general population, forcing him to
spend 22 extra days in solitary confinement, in a cell with
black mold and infested with bugs.
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 ‘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).