United States District Court, D. Kansas
NOTICE AND ORDER TO SHOW CAUSE
SAM A.
CROW U.S. SENIOR DISTRICT JUDGE
This
matter is a civil rights action filed pursuant to 42 U.S.C.
§ 1983. Plaintiff, a prisoner in state custody, proceeds
pro se and seeks leave to proceed in forma pauperis.
Nature
of the Complaint
Plaintiff
sues the Hutchinson Police Department, an unknown insurance
company for Hutchinson city employees, Verizon Wireless
Company, an unknown insurance company for Verizon, Dollar
General Store, an unknown insurance company for Dollar
General, officers and detectives employed in the Hutchinson
Police Department, seven state district court judges, a
district court clerk, a state prosecutor, seven private
attorneys, a Reno County commissioner, and the warden of the
Norton Correctional Facility.
The
complaint asserts claims that challenge the criminal
investigation that culminated in plaintiff's
conviction.[1]
Screening
A
federal court must conduct a preliminary review of any case
in which a prisoner seeks relief against a governmental
entity or an officer or employee of such an entity.
See 28 U.S.C. §1915A(a). Following this review,
the court must dismiss any portion of the complaint that is
frivolous, malicious, fails to state a claim upon which
relief may be granted, or seeks monetary damages from a
defendant who is immune from that relief. See 28
U.S.C. § 1915A(b).
In
screening, a court liberally construes pleadings filed by a
party proceeding pro se and applies “less stringent
standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
To
state a claim for relief 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)(citations omitted).
To
avoid a dismissal for failure to state a claim, a complaint
must set out factual allegations that “raise a right to
relief above the speculative level.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court
accepts the well-pleaded allegations in the complaint as true
and construes them in the light most favorable to the
plaintiff. Id. However, “when the allegations
in a complaint, however, true, could not raise a [plausible]
claim of entitlement to relief, ” the matter should be
dismissed. Id. at 558. A court need not accept
“[t]hreadbare recitals of the elements of a cause of
action supported by mere conclusory statements.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather,
“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
Tenth Circuit has observed that the U.S. Supreme Court's
decisions in Twombly and Erickson set out a
new standard of review for dismissals under 28 U.S.C. §
1915(e)(2)(B)(ii) dismissals. See Key v. Bemis, 500
F.3d 1214, 1218 (10th Cir. 2007)(citations omitted).
Following those decisions, 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 (quotation marks and internal
citations omitted). A plaintiff “must nudge his claims
across the line from conceivable to plausible.”
Smith v. United States, 561 F.3d 1090, 1098 (10th
Cir. 2009). In this context, “plausible” 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 [the] claims across the line from
conceivable to plausible.” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (citing Twombly
at 1974).
Discussion
The
Court has conducted an initial review of the complaint and,
for the following reasons, finds this matter is subject to
dismissal. Plaintiff will be directed to show cause why this
matter should not be dismissed.
First,
plaintiff's request for release cannot be considered in a
civil rights action under Section 1983. Instead, he must seek
relief in a habeas corpus action under 28 U.S.C. § 2254
after first exhausting available state court remedies.
Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)(a
prisoner ...