United States District Court, D. Kansas
JONATHAN L. McCONVILLE, Plaintiff,
NICOLE ENGLISH, Warden, USP-Leavenworth, Defendant.
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
CROW U.S. SENIOR DISTRICT JUDGE
Jonathan L. McConville 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
Nature of the Matter before the Court
filed this pro se civil rights action under 42
U.S.C. § 1983 while confined in the Leavenworth
Detention Center in Leavenworth, Kansas. The Court granted
Plaintiff leave to proceed in forma pauperis and
directed him to submit an initial partial filing fee. (Doc.
4.) Plaintiff filed a motion (Doc. 7) requesting a thirty-day
extension of time to pay the initial partial filing fee due
to his recent transfer. For good cause shown, the Court will
grant the extension.
alleges in his Complaint that while he was incarcerated at
USP-Leavenworth, Defendant English used a BOP policy to hold
him in solitary confinement from April 30, 2014, until April
12, 2018, when he was released from BOP custody. Plaintiff
was informed that he was being investigated for an assault
that occurred on April 24, 2014. Plaintiff was not indicted
and did not receive an incident report regarding the assault.
Plaintiff alleges that the time he “spent in solitary
confinement had a huge emotional, physical and most
importantly a psychological impact on [him].” (Doc. 1,
at 3.) Plaintiff alleges that Defendant violated his Eighth
Amendment right to be free from cruel and unusual punishment
and his Fifth Amendment right to due process. Plaintiff names
Warden English as the sole defendant and seeks
“adequate counseling/treatment/medication ($237,
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).
raised the same claims that he raises in this case in
McConville v. English, No. 17-3143-EFM-TJJ. In that
case, Plaintiff requested injunctive relief in the form of an
explanation as to why he was being held in solitary
confinement, an order to be released to general population,
and alternatively, transfer to another institution. The Court
granted Defendant English's Motion to Dismiss for Lack of
Jurisdiction, finding Plaintiff's claims were moot
because Plaintiff completed his term of imprisonment on April
12, 2018, and was currently on supervised release.
Id. at Doc. 37 (D. Kan. June 8, 2018).
raises the same claims in this case, although it is unclear
whether Plaintiff is seeking injunction relief (in the form
of counseling/treatment/medication) and/or monetary damages.
To the extent Plaintiff continues to seek injunctive relief,
his claims against Defendant English are moot because he is
no longer incarcerated at USP-Leavenworth. In addition, any
request for compensatory damages is barred by 42 U.S.C.
§ 1997e(e), because Plaintiff has failed to allege a
physical injury. Section 1997e(e) provides in pertinent part
that “[n]o Federal civil action may be brought by a
prisoner confined in a jail, ...