United States District Court, D. Kansas
MICHAEL D. BENSON, Plaintiff,
STATE OF KANSAS, et al., Defendants.
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
Crow U.S. Senior District Judge
Michael D. Benson 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 discussed
Nature of the Matter before the Court
brings this pro se civil rights action pursuant to
42 U.S.C. § 1983. Plaintiff is detained at the Shawnee
County Jail in Topeka, Kansas. The Court granted Plaintiff
leave to proceed in forma pauperis.
allegations in his Complaint involve his state criminal
proceedings. Plaintiff alleges that documents were falsified
and he was charged in retaliation for filing a civil rights
action in this Court in No. 18-3178-SAC. Plaintiff alleges
that his civil rights were violated on August 2, 2018,
when he was denied due process, received ineffective
assistance of counsel, and was selectively and vindictively
prosecuted in No. 18-cr-1447 in Shawnee County, Kansas.
Plaintiff names as defendants the State of Kansas and (fnu)
(lnu) District Attorney.
civil rights No. 18-3178-SAC was filed in this Court on July
25, 2018. See Benson v. Topeka Police Dep't, No.
18-3178-SAC (Kansas District Court). An online Kansas
District Court Records Search indicates that No. 18-cr-1447
was filed in Shawnee County on June 12, 2018, prior to the
filing of Plaintiff's civil rights case. On August 2,
2018, Plaintiff pleaded nolo contendere to Interference with
LEO, obstruct/resist/oppose misdemeanor warrant service or
execution, and was placed on twelve months of supervised
probation. See State v. Benson, No. 18-cr-1447
(Shawnee County District Court). Plaintiff's probation
was subsequently revoked for violations of his conditions of
probation. Id. Plaintiff's state criminal case
charging him with Aggravated Domestic Battery, Attempted
Aggravated Assault, Criminal Possession of Weapon by a Felon,
Interference with LEO, Criminal Threat, and Use/Possess With
Intent to Use Drug Paraphernalia, is still pending. See
State v. Benson, No. 18-cr-1359 (Shawnee County District
Court). Plaintiff pleaded guilty to several of the charges
and sentencing is scheduled for July 26, 2019.
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).