United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW U.S. SENIOR DISTRICT JUDGE
brings this pro se civil rights action pursuant to
42 U.S.C. § 1983. The Court granted Plaintiff leave to
proceed in forma pauperis. (Doc. 5.) Plaintiff is
incarcerated at the Hutchinson Correctional Facility in
Hutchinson, Kansas (“HCF”).
Nature of the Matter before the Court
alleges that on April 17, 2017, his monthly subscription of
San Francisco Bay View Newspaper was censored by Defendant
Brooke Combs. Plaintiff appealed the censorship and his
appeal was denied by Defendant Doug Burris. Plaintiff also
alleges that Defendants censored Plaintiff's Socialist
Viewpoint publication. Plaintiff alleges that the news that
is reported in the newspaper and magazines is also reported
on TV and radio as well as in other newspapers that are
allowed into the prison, such as USA Today, prison legal news
and local papers. Plaintiff also claims that Defendants did
not notify the publisher that the publications were being
censored. Plaintiff claims violations of his First Amendment
rights and to his Fourteenth Amendment right to equal
names as defendants: Dan Schnurr, HCF Warden; Brooke Combs,
Publication Review Officer; Doug Burris; and Pat Keen.
Plaintiff seeks nominal damages, compensatory damages of $1,
000.00, a declaratory judgment, and a permanent injunction
enjoining Defendants from withholding his subscription of Bay
View and Socialist Viewpoint.
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).
takes issue with HCF staff censoring his publications.
Plaintiff acknowledges in his Complaint that he has brought a
previous lawsuit regarding censorship of his publications.
(Doc. 1, at 4.) Plaintiff refers to No. 15-3158-EFM-GEB, and
alleges that the case is “currently on appeal.”
Id. However, the appeal was dismissed as untimely on
February 14, 2018. See Hughes v. Bos, No. 18-3008
(10th Cir. Feb. 14, 2018) (dismissing appeal in Case No.
15-3158-EFM-GEB). In Plaintiff's previous case, the Court
granted Defendants Bos and Shipman's motion for summary
judgment, finding that they were entitled to qualified
immunity. Hughes v. Bos, No. 15-3158-EFM-GEB, at
Doc. 62. In the Memorandum and Order, the Court found that:
During 2015 and 2016, Plaintiff had a total of 16
publications censored and denied pursuant to K.A.R. 44-12-601
and I.M.P.P. 12-134 Uniform Review of Publication. The stated
reason for the censorship was that the publications posed a
threat to the safety and security of the institution. The
censored publications include: “The San Francisco Bay
View National Black Newspaper, ” “Turning the
Tide, ” “The Burning Spear, ”
“Change-Links Community Calendar & News, ”
“MIM Theory, Psychology Imperialism Issue 9, ”
“Instead of Prisons, ” “The CR Abolition
Organizing Tool Kit by Shana Agid, ” “Abolition
Now, ” and “Under Lock & ...