United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
Crow U.S. Senior District Judge
Lewis Michael George 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 Amended Complaint that
are discussed herein. Plaintiff is also given an opportunity
to file a proper second amended complaint.
Nature of the Matter before the Court
brings this pro se civil rights action pursuant to
42 U.S.C. § 1983. Plaintiff is incarcerated at the El
Dorado Correctional Facility in El Dorado, Kansas. Plaintiff
alleges in his Amended Complaint (Doc. 4) that while he was
being held in the Meade County Jail on No. 12CR60, he was
sexually assaulted by his criminal defense attorney.
Plaintiff alleges that this happened once while he was in the
Sheriff's office and once in the Meade County Courthouse.
Plaintiff alleges that the Sheriff and District Attorney
“allowed this to happen.” Plaintiff alleges that
his defense attorney used his power and influence over
Plaintiff to pressure Plaintiff into accepting a plea deal
that was not in Plaintiff's best interest. Plaintiff
alleges that when he threatened to tell what had happened,
his defense attorney “paid him off.” Plaintiff
names as defendants his defense attorney, the prosecuting
attorney, the Meade County Sheriff, and Meade County, Kansas.
Plaintiff seeks punitive damages and a sentence modification
in his state criminal case.
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 ‘entitle[ment] 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).
alleges that his defense attorney sexually assaulted him.
Plaintiff has not shown that his defense attorney was acting
under color of state law as required under § 1983.
See Polk Cty. v. Dodson, 454 U.S. 312, 318-19,
321-23 (1981) (assigned public defender is ordinarily not
considered a state actor because their conduct as legal
advocates is controlled by professional standards independent
of the administrative direction of a supervisor); see
also Vermont v. Brillon, 556 U.S. 81, 91 (2009);
Dunn v. Harper County, 520 Fed.Appx. 723, 725-26,
2013 WL 1363797 at *2 (10th Cir. Apr. 5, 2013) (“[I]t
is well established that neither private attorneys nor public
defenders act under color of state law for purposes of §
1983 when performing traditional functions as counsel to a
criminal defendant.” (citations omitted)). A criminal
defense attorney does not act under color of state law even
when the representation was inadequate. Briscoe v.
LaHue, 460 U.S. 325, 330 n.6 (1983). Plaintiff's
claims against his defense attorney are subject to dismissal
for failure to state a claim.