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Myers v. Leavenworth Detention Center

United States District Court, D. Kansas

May 22, 2019

ANTHONY EUGENE MYERS, Plaintiff,
v.
LEAVENWORTH DETENTION CENTER, et al., Defendants.

          MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE

          Sam A. Crow, U.S. Senior District Judge

         Plaintiff Anthony Eugene Myers is hereby required to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why this action should not be dismissed due to the deficiencies in Plaintiff's Complaint that are discussed herein. Plaintiff is also given the opportunity to file an amended complaint to cure the deficiencies.

         I. Nature of the Matter before the Court

         Plaintiff, who is currently confined in the Leavenworth Detention Center in Leavenworth, Kansas (“CCA” or “CoreCivic”), filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 in the United States District Court for the Western District of Missouri. Because Plaintiff's Second Amended Complaint (Doc. 10) named CCA and the CoreCivic warden as defendants, the case was transferred to this Court pursuant to 28 U.S.C. § 1404(a). Plaintiff was granted provisional in forma pauperis status and directed to submit an initial partial filing fee. Plaintiff has filed a motion to waive the initial partial filing fee (Doc. 14). The Court will grant the motion, waive the initial partial filing fee, and grant Plaintiff leave to proceed in forma pauperis.

         Plaintiff alleges in his Second Amended Complaint that defendants delayed an x-ray of his injured wrist. Plaintiff alleges that since his arrival at CCA he complained about wrist pain but was denied medical treatment for seven months. Plaintiff alleges that defendants told him it was swollen and sprained from his handcuffs, but they did not do an x-ray or give him an ace bandage. Plaintiff alleges that they finally x-rayed his wrist after his third request and they treated his torn quad in his leg before they worked on his wrist. Plaintiff states that he thinks the police or a detective had this overlooked so they would not look like they were at fault for breaking Plaintiff's wrist. Plaintiff names as defendants: the Leavenworth Detention Center Medical Department; Core Civic of America; and (fnu) Thomas, CCA Warden. Plaintiff seeks $600, 000 in compensatory damages and $11, 000, 000 in punitive damages.

         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. DISCUSSION

         A. Plaintiff's Claim Under 42 U.S.C. § 1983

         “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). A defendant acts “under color of state law” when he “exercise[s] power ‘possessed by virtue of state law and made ...


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