United States District Court, D. Kansas
MICHAEL R. CUNNINGHAM II, Plaintiff,
FRANKLIN COUNTY JAIL, et al., Defendants.
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
CROW, U.S. SENIOR DISTRICT JUDGE
Michael R. Cunningham II, a prisoner at the Franklin County
Jail in Ottawa, Kansas, brings this pro se civil
rights action pursuant to 42 U.S.C. § 1983. 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
Complaint (ECF No. 1) alleges jail officials were
deliberately indifferent to his mental health needs and
failed to protect him from other inmates. Plaintiff was
remanded to the custody of the Franklin County Jail on
January 4, 2019, after his arrest. He alleges he informed
officials of his history of mental health problems and that
he was “experiencing excessive anxiety that would limit
his ability to function appropriately around others in
confinement.” ECF No. 1 at 4. Plaintiff asked to be
placed in protective custody or solitary confinement to
“avoid conflict.” Id. His request was
disregarded. Plaintiff was assaulted by another inmate on
January 29, 2019, suffering a scalp laceration requiring
eight staples and a concussion. ECF No. 1-1 at 7.
names as defendants the Franklin County Jail and five
employees. He does not state which of his constitutional
rights he believes have been violated. Plaintiff seeks
compensatory damages totaling $52, 000.
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),
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).
Failure to Protect
he does not cite any constitutional provision, Plaintiff
repeatedly references his “rights to safety and
protection.” See ECF No. 1 at 1, 2, 3, 5. The
Supreme Court has made clear that prison and jail ...