Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lee v. English

United States District Court, D. Kansas

March 1, 2019

EDDIE LEE, Plaintiff,
v.
FNU ENGLISH, Warden, USP-Leavenworth, et al., Defendants.

          MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE

          SAM A. CROW SENIOR U.S. DISTRICT JUDGE

         Plaintiff 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.

         I. 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.

         Plaintiff 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.

         Plaintiff 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 psychological damage.

         Plaintiff 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.

         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. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.