United States District Court, D. Kansas
NOTICE AND ORDER TO SHOW CAUSE
CROW U.S. SENIOR DISTRICT JUDGE
matter is a Bivens-type civil rights action filed by
a prisoner in federal custody. Plaintiff proceeds pro se and
in forma pauperis. The Court has conducted a review of the
complaint and, for the reasons that follow, directs plaintiff
to show cause why this matter should not be dismissed.
complaint names as defendants (1) the United States of
America, (2) Mark Inch, Director of the federal Bureau of
Prisons (BOP), (3) Ian Conners, Administrator of National
Inmate Appeals, (4) the unknown Regional Director of the
North Central Region of the BOP, (5) Claude Maye, the former
warden of the United States Penitentiary- Leavenworth (USPL),
(6) the Unit Discipline Committee, (7) Correctional Officer
Butz, and (8) M. Raletz, a member of the USPL education
alleges that during a July 2015 orientation session at the
USPL he initially refused to sign several forms as directed
but eventually complied to avoid placement in the Special
Housing Unit (SHU).
alleges that in March 2016, defendant Raletz prepared an
incident report charging him with refusing a work assignment.
The matter was referred to the Unit Discipline Committee
(UDC), which eventually found plaintiff guilty and imposed
the sanction of the loss of visitation for 15 days. Plaintiff
unsuccessfully appealed the sanction.
alleges these events violated his First Amendment right
“to not be forced to sign documents”; subjected
him to cruel and unusual punishment; and violated a created
liberty interest. He seeks the expungement of the
disciplinary report and damages.
federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental
entity or an officer or employee of such an entity.
See 28 U.S.C. §1915A(a). Following this review,
the court must dismiss any portion of the complaint that is
frivolous, malicious, fails to state a claim upon which
relief may be granted, or seeks monetary damages from a
defendant who is immune from that relief. See 28
U.S.C. § 1915A(b).
screening, a court liberally construes pleadings filed by a
party proceeding pro se and applies “less stringent
standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
avoid a dismissal for failure to state a claim, a complaint
must set out factual allegations that “raise a right to
relief above the speculative level.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court
accepts the well-pleaded allegations in the complaint as true
and construes them in the light most favorable to the
plaintiff. Id. However, “when the allegations
in a complaint, however, true, could not raise a [plausible]
claim of entitlement to relief, ” the matter should be
dismissed. Id. at 558. A court need not accept
“[t]hreadbare recitals of the elements of a cause of
action supported by mere conclusory statements.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather,
“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).
Tenth Circuit has observed that the U.S. Supreme Court's
decisions in Twombly and Erickson set out a
new standard of review for dismissals under 28 U.S.C. §
1915(e)(2)(B)(ii) dismissals. See Key v. Bemis, 500
F.3d 1214, 1218 (10th Cir. 2007)(citations omitted).
Following those decisions, 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 (quotation marks and internal
citations omitted). A plaintiff “must nudge his claims
across the line from conceivable to plausible.”
Smith v. United States, 561 F.3d 1090, 1098 (10th
Cir. 2009). In this context, “plausible” 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 [the] claims across the line from
conceivable to plausible.” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (citing Twombly