United States District Court, D. Kansas
MEMORANDUM AND ORDER TO SHOW CAUSE
CROW, U.S. SENIOR DISTRICT JUDGE
Robert Davis, a person involuntarily committed under the
Kansas Sexually Violent Predator Act (KSVPA) and being held
at the Larned State Hospital in Larned, Kansas, brings this
pro se civil rights action pursuant to 28 U.S.C.
§ 1331. Plaintiff has filed a motion to proceed
in forma pauperis (ECF No. 6), which is hereby
granted, along with two other motions, which are denied, as
discussed below. For the reasons outlined herein, Plaintiff
is ordered to show cause why his complaint should not be
of the Matter before the Court
complaint (ECF No. 1) challenges the constitutionality of the
Kansas Offender Registration Act, K.S.A. 22-4901, et
seq. (“KORA”). Plaintiff is currently
involuntarily committed to the Sexual Predator Treatment
Program (“SPTP”) at Larned State Hospital.
Plaintiff names as defendant Kirk Thompson, Director of the
Kansas Bureau of Investigation.
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.
seeks declaratory relief finding KORA unconstitutional,
unspecified injunctive relief, and monetary damages.
complaint in this case was originally filed in No. 18-3084 as
ECF No. 4. It was signed by Mr. Davis 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. Davis and the other three remaining plaintiffs, using
the complaint that was signed by all original plaintiffs.
Screening of Prisoner Complaints
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. § 1915(e)(2)(B).
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).
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)
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 ...