Bradley v. Thompson

          MEMORANDUM AND ORDER TO SHOW CAUSE

          SAM A. CROW, U.S. SENIOR DISTRICT JUDGE

         Plaintiff Darryl Bradley, a prisoner being held at the Winfield Correctional Facility in Winfield, Kansas, brings this pro se civil rights action pursuant to 28 U.S.C. § 1331^[1]. 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

         Plaintiff's complaint (ECF No. 1) challenges the constitutionality of the Kansas Offender Registration Act, K.S.A. 22-4901, et seq. (“KORA”). Plaintiff is currently serving a sentence for violating KORA three or more times. Plaintiff names as defendant Kirk Thompson, Director of the Kansas Bureau of Investigation.

         Plaintiff brings five (5) counts. For Count I, Plaintiff alleges KORA violates the First Amendment because of punishment that stems from public dissemination of his biographical information through the internet. Count II claims KORA violates the Fifth and Fourteenth Amendments because it is punitive and violates the double jeopardy clause. Count III argues KORA violates the Eighth Amendment because it is punishment. Count IV alleges KORA violates Plaintiff's Fourteenth Amendment rights to due process and equal protection because different crimes result in different registration periods. Last, Count V claims KORA violates the ex post facto clause.

         Plaintiff seeks declaratory relief finding KORA unconstitutional, unspecified injunctive relief, and monetary damages.

         Procedural Background

         The complaint in this case was originally filed in No. 18-3084 as ECF No. 4. It was signed by Mr. Bradley and four (4) other plaintiffs. The first named plaintiff, Lonnie Davidson, subsequently filed an amended complaint, which was not signed by any other plaintiff, and later requested voluntary dismissal. The Court dismissed No. 18-3084, opening new cases for Mr. Bradley and the other three remaining plaintiffs, using the complaint that was signed by all original plaintiffs.

         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). 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). 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); 1915(e)(2)(B).

         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 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 ...