United States District Court, D. Kansas
DIJON T. DIXON, Plaintiff,
CORE CIVIC, et al., Defendants.
MEMORANDUM AND ORDER TO SHOW CAUSE
CROW, U.S. Senior District Judge.
Dijon T. Dixon, a prisoner at the Leavenworth Detention
Center (CoreCivic-Leavenworth) in Leavenworth, Kansas, brings
this pro se civil rights action. Plaintiff proceeds
in forma pauperis. For the reasons discussed below,
Plaintiff is ordered to show cause why his Complaint should
not be dismissed.
Nature of the Matter before the Court
Plaintiff's Complaint (ECF No. 1) raises various claims
related to an incident that occurred on June 4, 2018. Mr.
Dixon alleges that during a nonviolent demonstration
regarding lockdown procedures, facility personnel deployed
three cans of CS gas into the pod. Plaintiff and the other
inmates were exposed to the gas for hours as they were
trapped in their cells. They were forced to eat meals in the
contaminated pod and were not provided with medical
assessments or clean clothing and bedding until June 7, 2018.
Facility personnel forced the inmates to throw away all
commissary purchases, and inmates were denied their
commissary orders for the week.
names two defendants, CoreCivic, the private company that
owns and operates the Leavenworth Detention Center, and L. R.
Thomas, the warden of the facility. Mr. Dixon does not state
what constitutional rights he believes have been violated. He
seeks damages of $1.2 million.
Statutory Screening of Prisoner Complaints
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
employee of such entity to determine whether summary
dismissal is appropriate. 28 U.S.C. § 1915A(a).
Additionally, with any litigant, such as Plaintiff, who is
proceeding in forma pauperis, the Court has a duty to screen
the complaint to determine its sufficiency. See 28
U.S.C. § 1915(e)(2). Upon completion of this screening,
the Court must dismiss any claim that is frivolous or
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary damages from a defendant who is
immune from such relief. 28 U.S.C. §§ 1915A(b),
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).
Failure to State a Cause of Action against
state a claim under section 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, 48-49
(1988) (citing Parratt v. Taylor,451 U.S. 527, 535
(1981), overruled in part on other grounds, Daniels v.
Williams,474 U.S. 327, 330-331 (1986); Flagg Bros.,
Inc. v. Brooks,436 U.S. 149, 155 (1978));
Northington v. Jackson,973 F.2d 1518, 1523 (10th
Cir. 1992). Plaintiff names ...